America’s complex government

Rick Morain

The United States system of government is one of the most complicated such mechanisms in the world. It’s a blessing and a curse.

A blessing, because it disperses power. That’s what the Founders intended with the Constitution in 1787, and it’s what has guided America since then. Federalism (dividing power between the national government and the state governments) and a tripartite national government (dividing power among the legislative, executive, and judicial branches) gives everyone a piece of the power pie. Theoretically, at least.

A curse, for exactly the same reasons. Dispersed power creates inevitable disputes over which entity holds the upper hand in innumerable cases every day. To borrow a term from former President George W. Bush, just who is The Decider?

Historically, those decisions have been assumed by the court system. That method has its faults, but no alternative has ever appealed to most Americans.

Different states use different ways to fashion how their courts work. For instance, 33 states have mandatory age limits for judges. Those limits range from 70 to 90 years, and the limits don’t apply identically to all judges in a state. Thirty-nine states elect their judges, sometimes varying among the levels of judicial positions. The limits are intended either to aspire to a certain level of competence from the bench or to provide a judicial system that to some degree is in touch with current political preferences.

The U.S. Constitution lays out specifically how the American judicial system works. Congress has the power to determine how many justices sit on the Supreme Court, and how many judicial districts and appellate districts operate in the nation. The President appoints all federal judges, each with the consent of the Senate. There are no age limits for federal judges.

The Constitution also guarantees “due process” in the U.S. court system. Due process, at least since the end of slavery and the adoption of the 14th Amendment in the late 1860s, extends to everyone in the United States a right to the protections of the Constitution and the legal system, regardless of citizenship. Those protections are a hallmark of American government and a source of pride for Americans.

That same 14th Amendment provides “birthright citizenship” for anyone born in the U.S.: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

President Trump does not agree. On his first day in office in his present term, he issued an executive order that states, “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.”

Technically he’s right: citizenship does not extend to foreign ambassadors’ children or to invading armies.

But that’s not the issue here, and it’s not what Trump has in mind. Presidential administrations have always considered birthright citizenship to be the law of the land, and there has never been a successful court challenge to it.

In 1898 the U.S. Supreme Court, in United States v. Wong Kim Ark, was asked to decide that very issue. The McKinley administration had challenged the birthright citizenship of the child of a Chinese immigrant couple who were ineligible for citizenship themselves due to the Chinese Exclusion Acts. The Supreme Court found in favor of the immigrant child, ruling indisputably that anyone born in the United States, regardless of their parents’ immigration status, is a U.S. citizen at birth.

Based on the 14th Amendment and the Wong Kim Ark decision, three separate federal district courts, two of them within days after Trump’s January executive order, issued universal injunctions blocking the order in response to complaints. By making the injunctions universal, the district courts required them to be in effect nationwide.

Can a district court issue a valid universal injunction? That was the issue the U.S. Supreme Court decided last week, and it said No. The Supremes declared that while a federal district court can provide complete relief to a plaintiff through an injunction, the ruling applies only to that plaintiff, and not to persons or organizations who are not parties to the suit.

The logical response was immediate: two hours after the Supreme Court’s ruling, two immigrant rights organizations moved to amend their complaint to make it a class action lawsuit. If upheld, it would grant injunctive relief to all members of the class affected by Trump’s order — that is, all children born in the U.S. to immigrant parents.

The Supreme Court’s decision did not undercut the lower courts’ injunction rulings on substantive grounds. It just undercut the tools available to enforce birthright citizenship. A class action lawsuit is an additional tool to that end.

That lets this column come back around to the complexity of the American way of government. There’s an old saw that says “justice delayed is justice denied.” Everyone acknowledges the truth of that statement, but as Mark Twain said about the weather, no one does anything about it.

The theory is that Congress composes and the President disposes. Often it seems as if the judicial system reposes. It’s true that part of due process is to assure that everyone gets a fair chance to challenge or defend in a case. In major lawsuits, that means an initial complaint, an initial defense, plaintiff’s rejoinders, defendant’s rejoinders, more filings, interrogatories, depositions, a decision, then an appeal to the next higher court, and so forth, and so forth.

The process brings added meaning to the terms “deliberate” and “briefs.”

For the untutored in the law, like me, even with all those steps it doesn’t seem it should take as long as it does to reach a conclusion.

Law firms in high-powered cases have dozens of members and staff assistants to develop their arguments. Justices have clerks and other staff help to do case law research, now with the help of computer-stored documentation and artificial intelligence. Why does it usually take several months to reach a final decision in cases on which the wellbeing and livelihood of millions of people depend?

The excruciatingly slow pace of American justice means the new class action challenge to Trump’s executive order on birthright citizenship will probably take months to resolve. It’s significant that the Court’s decision on universal injunctions doesn’t go into effect until 30 days later. That might possibly give the plaintiffs sufficient time to be reclassified as a class rather than their current individual status.

But in any event, thousands of children born here to undocumented immigrant parents could be denied the rights of citizenship and protections guaranteed to them by the 14th Amendment and the Wong Kim Ark Supreme Court decision.

The wheels of American justice grind much too slowly.

Rick Morain is a reporter and columnist with the Jefferson Herald.