A divided Supreme Court?

Birthright citizenship coupled with the power of the courts v. the executive was up before the Supreme Court this week. And it looks as if the court is divided.

A decision will take time, probably a couple of months. But based on the questioning from the Bench it appears as if a decision could go either way, or be wrapped up in so much qualifying legal mumbo-jumbo as to be nearly useless.

Birthright citizenship and the courts v the president are two separate issues but they have been judicially linked because the lower courts have been blocking Trump’s plans to deport more than 5 million people who were born in the US to parents who were illegal aliens.

There are 94 District Courts in the US that hear cases involving the US constitution that are brought to them by people in their district. A ruling by one of the federal judges in those districts can be applied nationally. This means that one of Trump’s Executive Orders can be blocked until the Supreme Court finds time to make a final ruling. This could take many frustrating months—if not longer.

The Trump Administration wants the law changed so that a District Court’s judgements apply only to their district. This would, of course, substantially increase the power of the presidency and his Executive Orders, but could create a confusing judicial quilt of which laws apply where.

Birthright citizenship is enshrined in the The 13th Amendment of the US constitution. The amendment is a direct result of disputes leading up to the American Civil War and the abolition of slavery after it. In 1857 the Supreme Court ruled that African American slaves had no right to citizenship. That meant that when Lincoln issue the Emancipation Declaration on January 1, 1863, the slaves were freed but they were also stateless. The 13th Amendment was meant to correct that.

When it was passed in 1865, no one thought at the time that the amendment would become a loophole for illegal aliens to establish citizenship for their children and a moral right to residency for themselves. But it is still the law. And because it is in the constitution, it is a chiselled in legal granite law.

The only way it can be changed is by amending the constitution. This involves one of two processes. The most difficult is a two-thirds vote in both houses of Congress followed by passage of the change by three-quarters of the state legislatures. The second, more usual route, is by ratifying conventions in three-quarters of the states. Both are difficult and time consuming and the reason why the constitution is rarely amended.

Trump likes moving at speed, which is why he is hoping that the Supreme Court will either find a way to declare the 13th Amendment null and void or come up with a work around that will allow him to circumvent it.

Midterm dilemma

Republican Congressmen and Senators are in a bind. Or at least they will be in November 2026 when all of the House of Representatives and one-third of the Senate are up for election.

I keep hearing that a growing number of the Republican congressional club are fed up, appalled and seriously worried at the way that Donald Trump is riding roughshod over the constitution, destroying established trade patterns with his tariffs and jettisoning important allies.

But they feel trapped. If they speak up. If they oppose him. They risk losing their seats. And if they lose their seats they lose the platform from which they can oppose him if they can find a way to do so.

It has happened before. Liz Cheney was a highly respected, extremely conservative, Republican senator who vociferously opposed Trump because she thought he was a dictator in the making. Trump turned to his loyal MAGA base and told them to dump Cheney in the Senate primaries and support the far-right MAGA alternative. They did as instructed.

Cheney’s demise was an object lesson for ever centrist-minded Republican in Congress. Tow the Trump line are you are out. Hence the climate of Omerta which has descended on Capitol Hill.

But, Trump is falling in the approval stakes. The majority is starting to turn against the president. Not everywhere. In some states MAGA remains dominant. But enough states that the anti-Trump vote is like to return enough Democrats for the Republicans to lose control of the House of Representatives.

Republican anti-Trump lawmakers are thus caught in the middle between Trump and the MAGA crowd on one side and baying Democrats on the other. It may just be possible that moving against Trump now could win them enough centrist and Democratic votes to keep their seats. That, however, seems unlikely.

Anti-Trump Republicans still, have 18 months until the next election. Will they remember their oath to defend the constitution, rediscover their morals and fight against Trump’s increasingly corrupt authoritarianism? If they do—and lose—at least they will have the knowledge that they went down fighting.

Nobel ambitions

Donald Trump desperately wants the Nobel Peace Prize. One of his success v failure yardsticks is outdoing Barack Obama. Obama won the peace prize. Trump must have it too.

Personally, I think that anyone who has trampled all over the US constitution and brought the the world economy to the brink of collapse with his tariffs should be disqualified. But I do not know if the Nobel Peace Prize Committee (five members of the Norwegian parliament) will take that into account. They may just go for a single foreign policy achievement.

If that is the case then at the moment Trump has four routes to Oslo City Hall, a gold medallion and the million dollar cheque:
· Ukraine
· Israel/Gaza
· Kashmir
· Iran nuclear deal

We can forget about Kashmir. Trump tried to claim that he was the driving force behind the recent ceasefire, but India dismissed the suggestion that Trump, Vance or Rubio had anything to do with ending Indo-Pakistan hostilities.

Trump tried successfully to interject himself into the Gaza ceasefire talks. And Joe Biden was not backwards in giving him credit. But that ceasefire has fallen apart. Benjamin Netanyahu is ordering more military action, more air strikes, more humanitarian blockades, and it seems as if Trump is either unwilling or unable to dissuade him .

Trump does, of course, have massive leverage on Israel. American military aid keeps the Israel Defense Force afloat. But cutting—or even threatening to cut–that aid would be a step too far for Israel’s chief ally.

That leaves Iran and Ukraine. In Iran, Trump also has substantial leverage. He has the power to hold back Netanyahu who is desperate to launch an attack on Iran. He can lift sanctions which are definitely hurting the Iranian economy. And finally, Trump knows that Iran is in a mood to settle after its losses in Syria, Gaza and Lebanon coupled with growing discontent on the domestic front.

Sanctions are the only leverage that Trump has with Russia’s Vladimir Putin. So far, the Russian leader has done better than expected in replacing Western investment and keeping the economy going. But there are questions about how long he can keep it up. The problem is that Trump’s leverage over Putin is weakened by the obvious admiration that Trump has for the Russian leader’s strong man image and tactics.

Trump has far more leverage over Ukraine’s Volodomyr Zelensky. The Ukrainians are heavily dependent on American military and intelligence aid. The Europeans are starting to fill the gap, but it will be years before they can replace America. This explains The Americans’ rudeness to the Ukrainian leader.

Trump could probably push through a deal which left Russia in charge of Donbas. Ukraine might accept this if the truce included NATO and EU membership, or at the very least, iron-clad security guarantees and the right to maintain and strengthen its military. Putin is against any arrangement which leaves Ukraine in charge of its own destiny which means no to NATO, the EU, Ukraine army and any security guarantees of any substance.

Anything less would quite rightly smack of appeasement. The Norwegians are unlikely to hand out the Nobel Peace Prize for appeasement.

* Tom Arms is foreign editor of Liberal Democrat Voice and author of “The Encyclopaedia of the Cold War” and “America Made in Britain".