The opinion, issued on February 19, denied the Justice Department’s “emergency” request for the appeals court to overrule a district judge’s injunction against Trump’s executive order purporting to end birthright citizenship, despite the language of the Fourteenth Amendment and despite consistent judicial interpretations of the Fourteenth Amendment, going back to 1898. (If anyone cares, that district judge, who reamed out Trump and his Justice Department, was appointed by President Reagan.)
To be clear, the district court’s ruling in question was not the judge’s definitive answer to the question whether Trump was right or wrong on birthright citizenship. It was, instead, a decision ordering a “preliminary injunction” pending full briefing, trial, and argument of the case.
Brushing away lots of legalese, the central issues at play when a judge rules on a request for a preliminary injunction are three:
- the “likelihood of success on the merits,” in other words, what does the judge think will probably happen when all the dust settles: Is the plaintiff more likely to win, or is it the defendant who will probably prevail? and, second,
- the harm issue—will the plaintiff be harmed if a preliminary injunction is not issued to preserve the state of play, while the issue is litigated? Or is it the defendant who will suffer harm if it is enjoined from doing what it wants to do?
- the public interest issue—apart from the parties to the case, what about the broader public?Â
In my experience, the first of these factors—“likelihood of success on the merits”—tends to be dispositive. And so it was here. Two of the three panel members of the appellate panel, Judge William Canby (appointed by Carter) and Milan Smith (appointed by Bush the Elder), joined in a terse, one page decision, declining to overrule the district court, because Team Trump did not make a “strong showing that [they are] likely to succeed on the merits.”
The third judge, Danielle J. Forrest, wrote a much more expansive piece of prose, concurring in the majority’s bottom line result, but “for reasons different than relied on” by the other two members of the panel.
Many are wondering how the Federalist Society judges, who now bestride the third branch of our federal government, will deal with Team Trump. What the Supreme Court does with birthright citizenship remains to be seen. But Judge Forrest’s treatment of the case is not without interest.
A bit of background: Judge Danielle Forrest was appointed to the bench in 2019, during Trump 1.0. Reading between the lines of her Wikipedia biography, I glean that Democratic opposition to her appointment was weak, probably on the ground that, “Well, this is about the best we can expect from a Trump appointment.”
Interestingly, her Wikipedia entry says, in black and white, that “She was a member of the Federalist Society from 2002 to 2006 and again from 2017 to present.” One might wonder whether her renewed commitment to the Federalist Society in 2017 might have had something to do with a desire for higher office—given that Trump 1.0 farmed out the judicial selection function to the esteemed Society. That said, in any event …
In her six pages of prose, Judge Forrest manfully eschewed any views on the “likelihood of success on the merits”—in other words, whether birthright citizenship is found in the Constitution, or whether it isn’t.
Instead, the very large burr in her saddle was the purported “emergency” referenced by Team Trump. The implication is that birthright citizenship has been the law of the land ever since 1866 or 1898, depending on how you count. Letting it be the law of the land for a few more weeks, or a few more months, is in no way an emergency.
And just because Team Trump SAYS there’s an emergency does not mean there REALLY IS an emergency.
In short, for this one Federalist Society jurisprude, Team Trump’s legal Shock and Awe is really Shock and Awful.
Facing MAGA 