On Thursday, the Attorneys General for Connecticut, New Jersey, Washington, California, and Massachusetts held a press conference following the Supreme Court arguments for the cases related to nationwide injunctions and birthright citizenship.
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00:00Good morning, everyone. I think what you heard inside is what us and our colleagues across the country have been saying now since day one of this administration.
00:09157 years ago, we came together as a nation post-Civil War and said never again were we going to debate whether babies born on American soil are entitled to the rights and privileges of American citizenship.
00:21And contrary to what the United States is saying, citizenship doesn't turn on or turn off when you cross state lines.
00:28Babies born in Philadelphia are subject to the same rights and privileges as babies born in New Jersey.
00:34And I have to say, it was astonishing to hear the United States government tell the nine justices of the Supreme Court that they weren't sure whether they would follow binding court precedent.
00:45They weren't sure if they could concede that, that basic fact that is the underpinning of the rule of law in this nation.
00:51This case is about birthright citizenship, but it's about whether the rule of law and the constraints on the executive and as Justice Jackson said, whether the president can act like a king.
01:02The answer I think the court is going to say is no, he cannot. I'm proud to join my colleagues.
01:06I'm very proud of our Solicitor General Jeremy Feigenbaum for the work he did inside.
01:10And I look forward to the court's opinion in this case.
01:13I'll turn it over to Attorney General Nick Brown from the state of Washington.
01:18Good afternoon and thank you, AG Placken.
01:20I'm incredibly proud of the team effort that led to this moment today and the work that we have moving forward.
01:26The unfortunate reality that we are facing now in America is it is incumbent upon attorney generals to stand up and protect Americans from their president.
01:34Because time and time again, this president is acting unlawfully in violation of the Constitution.
01:40And we cannot address a more fundamental issue than the one the court is beginning to address today than what it means to be an American in the United States.
01:48And all of the precedent is on the side of the state actors here.
01:52Time and time again, the Supreme Court has weighed in on this and affirmed that if you were born in the United States, that you are a citizen.
01:59That is backed up by congressional action. That is backed up by the whole weight of legal scholarship on this issue.
02:05And we could see how the justices began to dissect the absurdity of the United States position.
02:11That you would cross the border of my state in Washington and move to Idaho and you would lose your citizenship.
02:17That you would move from any one state that has participated in the litigation and lose your rights and privileges that come with being an American citizen.
02:25It's an absurd argument. And we think we saw the justices start to unravel that today.
02:31But we obviously have important work forward. And I'm really excited about the team effort here.
02:35And I'd love to turn it over to my colleague and A.G. Campbell from Massachusetts.
02:40Thank you, A.G. Brown. And thank you, A.G. Tong, A.G. Placken.
02:44And frankly, I'm really proud to be a part of this team.
02:47It is a team of sadly only Democratic A.G.s that are stepping up to protect the rule of law.
02:53All of us, I think, will say we're extremely grateful for the thoughtfulness of every justice, frankly, in this hearing.
02:59Not only of the presentation by our team, but the questions that were asked.
03:03And what they made abundantly clear, I think, and I'm optimistic and hopeful, is that the importance of not only possibly taking a peek at the merits of this case,
03:13which we all agree and have firmly stood by, that this is not only unlawful action by the president, but that he does not have the power through an executive order to dismantle the 14th Amendment and especially birthright citizenship, which has been the law of the land for close to 150 years.
03:32What I also appreciated, though, by the posture of these folks and these justices and our team, is that they recognize that when one baby is born in one state, that sometimes that baby will leave our respective states and go to another and receive the benefits and privileges in another state.
03:49And that it is really important that they look at the decisions of our lower courts, the thoughtfulness of the decisions of our lower courts, and recognize if they do not get this right, that we will be harmed as states and that it is unpractical that this would be able to work, this unlawful action by the president.
04:06But I think what's most important is not just a limited argument today, is that everyone should care about this birthright citizenship issue.
04:15It is not just about the access to citizenship and the privileges afforded by citizenship.
04:21If they can dismantle the 14th Amendment in our Constitution, they can also dismantle the other rights and privileges afforded our residents.
04:29First Amendment.
04:30With being an American citizen, it's an absurd argument, and we think we saw the justices start to unravel that today.
04:36But we obviously have important work forward, and I'm really excited about the team effort here.
04:41And I'd love to turn it over to my colleague and A.G. Campbell from Massachusetts.
04:46Thank you, A.G. Brown, and thank you, A.G. Tong, A.G. Placken.
04:50And frankly, I'm really proud to be a part of this team.
04:53It is a team of, sadly, only Democratic A.Gs that are stepping up to protect the rule of law.
04:58All of us, I think, will say we're extremely grateful for the thoughtfulness of every justice, frankly, in this hearing.
05:05Not only of the presentation by our team, but the questions that were asked.
05:09And what they made abundantly clear, I think, and I'm optimistic and hopeful,
05:13is that the importance of not only possibly taking a peek at the merits of this case,
05:19which we all agree and have firmly stood by, that this is not only unlawful action by the president,
05:25but that he does not have the power, through an executive order, to dismantle the 14th Amendment,
05:31and especially birthright citizenship, which has been the law of the land for close to 150 years.
05:37What I also appreciated, though, by the posture of these folks and these justices and our team,
05:43is that they recognize that when one baby is born in one state,
05:48that sometimes that baby will leave our respective states and go to another
05:52and receive the benefits and privileges in another state.
05:55And that it is really important that they look at the decisions of our lower courts,
05:59the thoughtfulness of the decisions of our lower courts,
06:02and recognize that if they do not get this right, that we will be harmed as states,
06:07and that it is unpractical that this would be able to work, this unlawful action by the president.
06:12But I think what's most important is not just the limited argument today,
06:16is that everyone should care about this birthright citizenship issue.
06:21It is not just about the access to citizenship and the privileges afforded by citizenship.
06:26If they can dismantle the 14th Amendment in our Constitution,
06:29they can also dismantle the other rights and privileges afforded our residents.
06:34First Amendment, Second Amendment, you name it.
06:36So we stood up from day one protecting this,
06:39understanding that it is bigger than the birthright citizenship issue,
06:43while it's equally, of course, important that we care about it.
06:45And lastly, I will say why I'm proud of my colleagues,
06:48is we recognize that while we do the work to protect the rule of law,
06:52we don't take our eyes off the issues that matter the most to the people of this country,
06:56which still is affordability and economics,
06:59and we're addressing those issues too, and I'm really proud of that.
07:02So I'm glad and proud to turn it over to AG Tong,
07:05but most importantly, glad to be a part of this team representing Massachusetts.
07:10Thank you, William Tong, Attorney General for the State of Connecticut.
07:14Really proud to stand as part of this coalition,
07:19and I just want to thank New Jersey Jeremy Feigenbaum for his incredible work today
07:24on behalf of all of us in the Supreme Court.
07:28For the last couple of hours, we talked about, we discussed, we debated
07:33really important legal questions, constitutional questions,
07:37but I just want to refocus on how personal this issue is.
07:42General Brown talked about how this is about the 14th Amendment,
07:48and a provision of our Constitution, not just a statute, not just a law,
07:53the U.S. Constitution that enables and establishes that millions of Americans are Americans,
08:03that we are citizens, me and my sisters.
08:07I don't derive my citizenship from my parents.
08:11I became the first American citizen in my immediate family by right of my birth
08:17on American soil in Hartford, Connecticut.
08:21And that is true today about millions upon millions of Americans,
08:26not just babies, not just children, not just people in Washington, New Jersey, Massachusetts,
08:31that will soon be born and will become, we hope, because of what we did here today,
08:37Americans like all of us, but because the 14th Amendment establishes who we are,
08:43that this is the soul of our country, and it unlocks all of the possibilities
08:48that have enabled our lives, my life, your life, all of our lives to be possible.
08:53And so this is a really personal fight, a really personal fight,
08:57and it's our fight to protect not just the 14th Amendment and immigrant families,
09:05but who we are as a country.
09:07Let me also just say, in reacting to the argument,
09:12Justice Sotomayor raised a really interesting point.
09:17How illegal is what the President has done, right,
09:21in trying to ban birthright citizenship?
09:23How utterly unlawful is it?
09:25Well, it's as if another President was elected and the very first day said,
09:30you know what, I don't care what the Second Amendment says, doesn't matter.
09:34No American can possess firearms.
09:37Can you imagine if another President tried to do that in the very first hours of their new presidency?
09:44People would lose their minds.
09:46That's how utterly unconstitutional this action is on the merits,
09:51and that's why it's so important that we're here in fighting this battle
09:55on behalf of the American people today.
09:58Thank you, General Tong.
09:59By the way, I've introduced myself.
10:00I'm Matt Plack, the Attorney General of New Jersey.
10:02Happy to take some questions.
10:03I understand there's fundamental disagreement today on the 14th Amendment issue,
10:10but did you find that there is any semblance whatsoever of some bipartisan agreement
10:15about universal injunctions, nationwide injunctions?
10:18Because President Biden also had several of his policies stayed by universal injunctions.
10:23I'm just curious if you found that there was any sort of, like, partial agreement on that there needs to be something done with universal injunctions at the local level.
10:30Well, look, we've been consistent as states on this, I think.
10:33And you heard Solicitor General Feigenbaum say this.
10:35We have said for years that universal injunctions should be held to limited circumstances.
10:41But clearly those limited circumstances include a case where the president with a sharpie rewrites the 14th Amendment and says overnight in his first day in office that the interpretation of the 14th Amendment, the plain text of it that has been in place for 157 years,
10:58that the Supreme Court has said the meaning of for 127 years, that the executive branch has adhered to for well over a century is somehow different.
11:07And again, I live in New Jersey. I represent nine and a half million people.
11:10If you're a mother in South Jersey, very often they go to Philadelphia to give birth to their children.
11:15Are we really going to say that that child's citizenship turns on whether or not the attorney general of the state of Pennsylvania, who did not join our suit, is in our suit?
11:27Come on, that's not the case. And clearly, it's this is a case that universal injunctions apply.
11:32I don't know if my colleagues have anything.
11:34One of the Trump administration's argument in this case was, you know, that instead of universal injunctions,
11:40let's say, to release the class certifications, and even if that might take some time,
11:44it's going through those steps, you know, realistic steps, stuff, and stuff.
11:47I wonder if you see any irony in the Trump administration kind of making an argument like that,
11:51about how kind of the process is going to be followed.
11:54Well, there's a certain irony in saying we have to adhere to legal principles when they've utterly disregarded them.
11:59Get up here. Why not?
12:03Come on up, Jeremy.
12:04Thank you. Why not?
12:06Here.
12:07But let's be clear, and they couldn't even concede the following.
12:13A justice asked the United States, if, in fact, a circuit court said what you were doing was illegal, would you follow it?
12:21If the Supreme Court says what you were doing, would you follow it?
12:24He didn't say yes.
12:26Didn't say yes.
12:27So put aside their legalistic arguments of how they think somehow years from now people might be able to get relief.
12:33People are citizens when they're born here today.
12:35They're entitled to that relief today.
12:37States are harmed today if we do not get this relief.
12:42That's the point we're making.
12:43Any of you mind?
12:44Yeah.
12:45I just want to add, I think, in addition to those arguments, I really appreciated Justice Jackson's frame as well.
12:52She brought in an additional element and an additional argument that's equally important, which suggested, frankly, that if one court, one of the lower courts, gave relief to only the named plaintiffs,
13:03and said that the conduct of this administration in the context of birthright citizenship is unlawful and to stop doing that conduct, that relief is granted to those named plaintiffs.
13:12And others are just sort of indirect beneficiaries, possibly.
13:16But that frame is a powerful one, because I think at the end of the day, she gets at not only, obviously, maybe not the other arguments that we've made in the case,
13:25but this idea that they're just telling the government to stop doing something that is unlawful and that it's benefiting those plaintiffs and to accept that.
13:33That's a powerful argument.
13:34And that, I think, alone, if you took her frame, is one that I hope all the other justices look at as an additional argument to rule in our favor.
13:41I just want to underscore what General Plathkin said. People are getting hurt right now. That's a really important point.
13:47Right? We can't wait. And this boiled down to Justice Kagan saying, but what if you're dead wrong and you're obviously wrong?
13:57And can we not take action when people are getting hurt? If a baby is born in Washington State, right, in the next hour or in Connecticut,
14:04and they're denied citizenship, we're not there yet, but if they're denied citizenship, then what? Are they stateless? What are their parents supposed to do?
14:12Do they go underground? Can they get health care? Can they go to the emergency room? Should they sign a lease? Should they go to work? Right?
14:20All the decisions that parents, families have to make are thrown into chaos. And downstream of that, I mean, the immediate families, they're the ones getting hurt.
14:31The people that live in our states are getting hurt. But not too far downstream of that is, what are we supposed to do to take care of all those people?
14:38They're our responsibility. What are states supposed to do?
14:43Any other questions?
14:45Yeah. Do you think that the justice will be more of a middle-of-the-art solution instead of just eliminating universal injunctions?
14:53Well, I think you heard a lot of skepticism today to the argument about eliminating universal injunctions.
14:58And again, as I said, we've said for years that they should be reserved for limited circumstances.
15:02But this is clearly one of the circumstances that it applies to.
15:08Any other questions?
15:11Any other questions?
15:12Any other questions?
15:13Any other questions?
15:14Any other questions?
15:15Any other questions?
15:20Any other questions?
15:22Ongoing with respect to birthright citizenship?
15:26Yeah, well, look, in this case, as we laid out, if the court were to narrow the injunction just to the states in the suit, we would all be harmed.
15:35I mean, raise your hand if you haven't lived in more than one state.
15:38Babies are born, 6,000 babies are born outside of New Jersey and move into New Jersey every year.
15:42We'd have to be sitting there parsing through which state, which hospital those babies were born in,
15:47whether or not they're entitled to benefits in our state.
15:49And more fundamentally, we'll be parsing through whether we're treating for the first time since the United States Civil War, okay?
15:56157 years that we would have to sit there and say, are we going to treat citizens, or sorry, babies differently as citizens or not?
16:05Whether or not they were born in states that are part of this lawsuit.
16:09And that brings us back to some of the darkest days in this nation's history.
16:14The only thing I would add on top of that is, in addition to thousands of babies potentially losing their American citizenship,
16:22you're going to have a class of children born in this country that may not have a citizenship of any country.
16:28And there was questions by the justices brought out today talking about how other countries only afford citizenship if you're born in their country.
16:35So you're going to have people that not only lose the rights and benefits and privileges and honor of being an American,
16:40but they have no benefits whatsoever.
16:42It might be stateless.
16:44What do we do with those children?
16:45How do we address the problems that they are facing?
16:47So not only do we think that we need to prevail to ensure what it means to an American,
16:51but protect the rights of all the children that are born here to not deal with the complete lawlessness that might come from this presidential action.
16:58And just to add on to my colleagues, an additional harm, if the court gets this wrong,
17:04is we would require those unborn babies and their families to somehow now access the courts on their own.
17:11And I think Justice Kagan said this well, if they couldn't afford a lawyer or if they couldn't afford someone to help them through that process,
17:17well, good luck.
17:18I think it's difficult for them to get any type of relief, which I was really hopeful to hear.
17:23Not only the questions around that, but the practicality and the harm that would cause states and individuals
17:28who would want to seek some type of relief, but who wouldn't be able to.
17:32Oh, sorry.
17:32I want to thank you all.
17:35And I just want to note this suit.
17:37Again, I'm just so proud of my colleagues who are here and the other do the math 18.
17:45In general, I have to say General Rob Bonta, Attorney General Rob Bonta was trying to be here and he had some flight challenges.
17:50So I want to thank California as well for their leadership.
17:53We're proud to stand up for the rule of law.
17:55And what we saw in there is the rule of law working.
17:58Nine justices asking tough questions.
18:00People responding to them.
18:01We may have differences of opinion, but that's how the law is supposed to work.
18:05And I hope that this administration, when this decision comes down and when other decisions come down
18:11that affect the unlawful actions that they've taken, that we collectively,
18:14the reason why you're getting so many injunctions issues is because they're violating the law at unprecedented rates.
18:20I hope that they stop saber rattling about whether they'll in fact follow those orders and start following the law.
18:25That is what this country is based on.
18:27The 14th Amendment is a prime example of that.
18:29You do not get to rewrite it with a Sharpie.
18:32You have to follow the law.
18:33Thank you all.
18:41We're going to hear the other side.
18:43My name is Paul Kaminar with the National Legal Policy Center.
18:45With me is John Eastman from the Claremont Institute, who filed a brief supporting the government's position
18:52and would like to say a few words about the argument today.
18:58John?
18:59Thank you, and I'll be happy to take questions.
19:01But I want to begin with General Sauer's closing remarks on the merits.
19:05This is a question, contrary to what Justice Sotomayor said at the very beginning of the oral argument,
19:11this is a question that the Supreme Court has never addressed in a holding.
19:15Never.
19:16Not in Wong Kim Ark.
19:18That case dealt explicitly with the children born of lawfully and permanently domiciled parents.
19:23The three other cases she cited were the purest form of dicta, just a statement in passing,
19:28no part of the holding of those cases.
19:30And I think the historical record is much stronger in favor of President Trump's executive order
19:36than the three or four justices that commented about the merits were willing to accept.
19:41They were quite clear.
19:42When you said subject to the jurisdiction, what did you mean?
19:45Only territorial jurisdiction, subject to our laws, or did you mean something more?
19:51And the chief author of the 14th Amendment and the author of that particular language said
19:56it means complete jurisdiction, not owing allegiance to any foreign power.
20:00That's what it means.
20:01The Supreme Court in 1873, the Supreme Court in 1884, the Secretary of State in the 1870s
20:08and 1880s, all the way up until the 1960s, agreed that it required more complete jurisdiction,
20:15not simply territorial subject to our laws while you're here jurisdiction.
20:19Our passport forms, which require you to prove citizenship all the way up until 1966,
20:25required not just you to say where you were born in the United States,
20:29but what the status of your parents is when you were born.
20:32Were they naturalized citizens or lawful permanent residents,
20:36or were they temporary sojourners, temporary visitors?
20:39So the notion that this was well settled in the 14th Amendment's plain text
20:43or with 100 years of precedent is just blatantly false,
20:47and I was glad to see General Sauer say that.
20:49It's a close and open question what the Supreme Court is going to do on the merits,
20:53but I will tell you it's much closer than the lower courts
20:56and these hand-selected jurisdictions have treated it as.
20:59Were they talking about the remedy issue?
21:01Oh, you know, one other thing about the remedy, which I was surprised didn't come up at all.
21:05On a preliminary injunction, the harm that's being caused to you
21:10has to be something that cannot be remedied after the fact.
21:14Take the typical employment unlawful discharge case.
21:18You don't get a preliminary injunction because if you win on the unlawful discharge at the end,
21:24you can be fully compensated with back pay and interest and what have you.
21:28What's the irremediable harm here if they win is that you get a birth certificate
21:33that says you're a citizen after the fact,
21:36or any benefits that you've been deprived of in the interim can be paid back.
21:41That's not irremediable harm,
21:43and that's normally a key requirement of injunctive relief,
21:47preliminary injunctive relief.
21:48I was surprised we didn't see any discussion about that issue at all.
21:52Any questions?
21:53The Trump administration in other cases,
21:58you know, in certain immigration cases,
21:59has argued that it would, you know,
22:02that due process takes a lot of time to approve the due process,
22:05and that there's too many of those that are otherwise.
22:08In this case, it's argued that, you know,
22:11that there should be more time taken to consider class release
22:14and things like that, but on the steps that you're doing.
22:16Do you see any contribution that you're interested?
22:18Well, I don't.
22:19Most of the folks that are being deported have already had due process.
22:22So take the lead case, you know,
22:24the Trendo-Orego guy that was supposedly wrongly deported.
22:29That was not true, of course.
22:31He had two levels of due process.
22:33He had a Bureau of Immigration hearing and a BIA appeal
22:37that found him deportable, found him unlawfully in the country,
22:41and the courts have been very clear.
22:43The level of due process you get depends on the circumstances,
22:46and the level of due process you get in deportation proceedings
22:49is significantly lower than in a criminal proceeding.
22:53And so I think they have provided that due process.
22:56And here, all we're looking at, what we've got,
22:58and I think Justice Kagan's comment at the very end was,
23:00I think, very insightful.
23:02These nationwide injunctions encourage forum shopping.
23:06When Biden or Obama was president, the forum was Texas.
23:10Now we see California or Seattle or Boston or D.C.
23:14The forum shopping problem, it really undermines consistency in the rule of law.
23:19And she seemed concerned about that,
23:21even though she was desperately trying to figure out a way to distinguish those cases from this one.
23:26But the forum shopping is a problem.
23:28And I think what the Department of Justice is asking is,
23:31you know, there may be other courts that weigh in on this
23:34that come at it from the other side
23:35without the presumption that this was blatantly unconstitutional.
23:38The Seattle judge said,
23:40I haven't even read your briefs or heard your argument.
23:42I've already signed the injunctive order because I don't need to.
23:45He wasn't even willing to listen to the very significant historical record
23:49and prior precedent to the contrary.
23:52That's a real problem for the rule of law.
23:54And to get a little more percolation on that from the lower courts,
23:57I think would be of help to the Supreme Court
23:59when they do finally confront the merits.
24:02Any other questions?