The Court of Appeals Just Shut Down Trump’s Bid to End Birthright Citizenship

Another rough couple of days for the administration in the nation’s courts. On Tuesday, an appeals court upholds common sense, always a losing issue for this bunch. This comes after a judge in another court tells the DOGE and pony show to, well, pony up because he said so, that’s why.

One of the most audacious acts of this administration is the president’s delusion that he can simply sign away the 14th amendment’s plain guarantee of birthright citizenship with a stroke of his mighty pen. (Why do they laugh at his mighty pen?) However, Judge David Barron of the Court of Appeals for the First Circuit was having none of it. He points out that the administration’s crack legal team didn’t even address this fundamental issue in its brief.

The Government expressly declines to make any developed argument that it is likely to succeed on appeal in showing that the Executive Order is either constitutional or compliant with 8 U.S.C. § 1401. Nor does the Government contest that, for more than a century, persons in the two categories that the Executive Order seeks to prevent from being recognized as United States citizens have been so recognized. Instead, the Government contends that it can make the requisite showing for a stay of the preliminary injunction even without developing an argument to us that the Executive Order is lawful and even though the enforcement of the Executive Order would dramatically break with the Executive Branch’s longstanding legal position and thereby disrupt longstanding governmental practices.

Meanwhile, another judge, District Judge Christopher Cooper, has told DOGE to open its books so we can all know what the hell is going on. From Politico:

U.S. District Judge Christopher Cooper said the vast and “unprecedented” authority of DOGE, formally known as the U.S. Digital Service, combined with its “unusual secrecy” warrant the urgent release of its internal documents under the Freedom of Information Act…“The authority exercised by USDS across the federal government and the dramatic cuts it has apparently made with no congressional input appear to be unprecedented,” Cooper wrote in a 37-page opinion.

“The rapid pace of [DOGE’s] actions, in turn, requires the quick release of information about its structure and activities,” Cooper wrote. “That is especially so given the secrecy with which DOGE has operated.” Cooper leaned heavily on news reports suggesting that Musk’s operation had led to the firing of tens of thousands of government employees, the dismantling of the U.S. Agency for International Development, a government-wide deferred resignation program and widespread access to sensitive government databases for relative outsiders.

This is how, in all legal propriety, you call something a rogue agency and tell it to stand and deliver the reasons why it should continue to operate as one.

“Congress needs the requested information in a timely fashion to use it effectively. The electorate also requires the expeditious production and publication of this information,” Cooper said. “Voters may seek to influence congressional representatives to take action responsive to USDS at any point along the road. And ‘[t]he dissemination of information’ sought by CREW would contribute ‘to an informed electorate capable of developing knowledgeable opinions and sharing those knowledgeable opinions with their elected leaders.’”

It’s becoming quite plain that the president’s hail of executive orders is little more than a rain of shadows. Most of them are so deeply unserious that the only people taking them as anything more than empty gestures are the members of the president’s cult in Congress and some of the more credulous members of the media. Once again, the real crunch will come when he runs out of appeals and tries to ignore the final judgments of the courts. That will be the true reckoning.