argument

This week’s narrow Supreme Court decision protecting birthright citizenship is rightly being hailed as a triumph for the American experiment.

By some, anyway.

Check out MAGA world and you’ll quickly find Trump surrogates and even elected leaders spouting a kind of extremist anti-immigrant sentiment that once, not so long ago, was considered intolerable in the public sphere.

This has included suggestions that go as far as banning pregnant women from traveling to the United States for fear they might give birth here, and — no joke — one notable commentator writing that demanding female immigrants be sterilized might be a solution.

Trump’s Homeland Security advisor Stephen Miller said after the ruling that children of immigrants might not be “qualified to carry on or capable of executing the inheritance of this country.”

“We have people from all over the world, from Third World nations, nations that on their own would have never invented the wheel, let alone modern technology, let alone medicine, let alone air travel, and they can just come into the country, have a baby at a hospital, paid for it by you and me, and then that baby is automatically a citizen,” Miller said.

Before you tell me that the Supreme Court has spoken and this is a done deal, no matter if there’s more gross Miller mush, let me tell you about Supreme Court Justice Ketanji Brown Jackson’s written opinion and why it matters. It is, if read in the right light, a warning for what comes next — a fight to rewrite history to serve political aims.

“The odds were long and the stakes were high,” Jackson wrote about the creation of the 14th Amendment in 1866, which has long been understood as granting citizenship to any child born on U.S. soil and which was the focus of this case.

Still, she wrote, despite the unlikeliness of post-Civil War America rising to the challenge of inclusiveness, the amendment was always meant to do just that — because free Black people, recently emancipated but denied citizenship, “fought for the shared humanity of all people.”

An alternative interpretation by MAGA world of this amendment and this history was the center of this case.

To greatly simplify, the 14th Amendment was originally a response to a Supreme Court decision, the Dred Scott case, that said freed Black slaves could not be U.S. citizens. MAGA world was arguing that the authors of the 14th Amendment never intended much more than that — citizenship for ex-slaves and their descendants.

While concurring with the majority of the court, Jackson also wrote her own summary that makes a vital point: Without history that includes the Black experience — as most of the arguments in this case did — we are left bereft of the suffering that has shaped our values and which gives us the empathy required to be a pluralistic society.

Black history — any non-white history, really — is the history of resistance and the road map to recovery from this dark era of hate.

It’s hard to call someone your fellow citizen if you take away their humanity — which is exactly what this case was attempting to do by splitting into factions those who would fight for equality and rewriting history with only the voices that match the current administration’s goals.

It was disappointing that the court, whose individual justices bounced around arguments from a myriad of sources outside of their erstwhile adherence to the ideas of originalism, did not call out that erasure more forcefully, and that it was left to Jackson to do so.

Jackson took that narrow idea that Black people — and the white legislators sympathetic to their cause — had only themselves in mind when crafting the 14th Amendment and attacked it head-on, arguing that if we just look at what Black people were saying at the time, the larger intent of the amendment becomes clear.

“This alternative account pitches Black Americans against immigrants when the advocates who promoted the Fourteenth Amendment did no such thing,” Jackson pointed out of the MAGA version of events. “Freed Blacks fought for the shared humanity of all people.”

That “universalist vision of belonging and citizenship,” she wrote, “eventually won the day.”

The 14th Amendment was largely written by Sen. Lyman Trumbull of Illinois, who took much of the basis of it from the legal arguments of Black intellectuals, including Frederick Douglass, the most influential Black statesman of the era.

Trumbull then argued in Congress that the amendment was meant to be inclusive — even of so-called “gypsies” and Chinese immigrants, who faced extreme racism, especially in California.

One congressman opposed to the measure warned that if it passed, Chinese immigrants would “overrun” California and “will double or treble the population.” At the same time, the Romani would likely continue to “wander in gangs” and “have no homes, pretend to own no land, live nowhere, settle as trespassers where ever they go, and whose sole merit is a universal swindle,” he warned.

Asked if the amendment would grant citizenship to those two controversial groups of immigrants, Jackson points out that Trumbull gave an unapologetic “undoubtedly,” again drawing on the universalist ideas of Douglass and others.

The “child of an Asiatic is just as much a citizen as the child of a European,” Trumbull said (and Jackson quoted, drawing from an amicus brief by Evan Bernick of Northern Illinois University and Jed Sugerman of Boston University).

“There is a serious breakdown in on the court that reflects the breakdown and echo chambers in America,” Sugerman, the professor, told me Wednesday. “When it comes to history and originalism, you have to read more broadly than just the founding fathers that you liked.”

So the history of the 14th Amendment is right there — equality not just for Black Americans but for immigrant Americans — but it required Jackson to write her own opinion to put it on the court record.

Legal scholars aligned with Trump did Olympic-level gymnastics in this case to parse what the authors of the 14th Amendment meant with the phrase “subject to the jurisdiction” — words that MAGA claimed were meant to secretly exclude undocumented immigrants.

Brown instead reminded us that outside of those white-only discussions when the amendment was written, it was the activism of Black people — their demand for colorblind equality — that actually shaped the final words that granted citizenship to all babies born within our borders.

Solidarity — the unbreakable strength of American democracy.

After the ruling, Trump wrote on social media that Congress could write legislation undoing birthright citizenship. Some pundits say that wouldn’t work, but I’m here to say Trump has managed a bunch of stuff that the pundits said wouldn’t work.

More chilling, and direct, were more comments from Miller.

“It’s an abomination,” he said of the ruling.

But “because of President Trump’s courage and leadership, we are now on the precipice. Yes, we were dealt a setback, but because of his courage alone, we’re on the precipice as a nation of being in a position to end this travesty once and for all, and that’s what we have to fight for.”

Miller and his ilk are seeking to rewrite history to justify their vision of the future of America.

Jackson alone in the court offered us both a warning and a path — a reminder that our history holds indisputable facts despite politics, and we erase them at our own peril.

MILWAUKEE — A federal judge on Wednesday considered whether to throw out a jury’s guilty verdict against former Wisconsin Judge Hannah Dugan, who was convicted of felony obstruction for helping an immigrant evade federal officers.

The case was an early test of how the courts would respond to President Trump’s sweeping immigration crackdown.

Dugan had been scheduled to be sentenced on Wednesday, but U.S. District Judge Lynn Adelman postponed the proceedings indefinitely to instead hear arguments about whether to overturn her conviction.

Adelman did not rule from the bench and did not indicate when he might issue a decision. Dugan and attorneys for both sides left the courtroom without commenting to reporters.

Former judge’s attorney points to a Virginia case

Dugan’s attorney Steven Biskupic argued that her conviction was invalid and should be overturned. He said that was necessary because a federal appeals court in April overturned a key Virginia immigration case that the judge and prosecutors had cited in the Dugan case.

Biskupic argued that based on the 4th U.S. Circuit Court of Appeals overturning that ruling, Dugan was improperly convicted, procedurally, under a certain federal law.

“Our primary argument is this was an invalid theory of conviction,” Biskupic said.

In the Virginia case, an immigrant who was in the country illegally was detained by U.S. Immigration and Customs Enforcement agents and later escaped. He was recaptured and indicted on a charge of obstructing a pending immigration proceeding.

The federal appeals court found that the ICE action did not constitute a “pending proceeding,” as is required under the federal obstruction law.

Dugan’s attorneys argue that she should not have been charged because there was no “pending proceeding” against the immigrant in her courtroom being sought by ICE agents, only a warrant filed for his arrest. The filing of a warrant does not constitute a “proceeding” under the law, Biskupic argued.

Prosecutors countered that the facts in the Virginia case are different and don’t apply to Dugan’s. They also argued that other cases support Dugan’s conviction.

“The court should stick with its ruling,” said Richard Frohling, acting U.S. attorney for the eastern district of Wisconsin.

In response to a question from the judge, he contended that the appeals court was wrong to overturn the Virginia case. The judge also quizzed Frohling on what constitutes a proceeding under the law and how long it lasts.

“It could be a couple minutes, it could be a couple years,” Frohling said. “It all depends on the context.”

Dugan’s sentencing was postponed so the court can hear new arguments

Dugan, 67, faces up to five years in prison after a jury convicted her on Dec. 19. But it is unlikely that Dugan would be sentenced to prison. Federal sentencing guidelines generally call for probation for defendants like her who have no criminal history and are convicted of a nonviolent crime.

She resigned from her position as a Milwaukee County circuit judge two weeks after her conviction amid threats of impeachment from Republican state lawmakers. She had been a judge for nine years.

Dugan was present for Wednesday’s arguments but did not speak.

The Trump administration brought the case against Dugan as the president pressed ahead with his sweeping immigration crackdown. Trump’s administration and his allies branded Dugan as an activist judge, while Dugan’s attorneys said she was being unfairly targeted and argued, unsuccessfully, that she was immune from being charged because she was a judge.

Dugan’s case marked the first time that a state judge in Wisconsin went to trial on charges of obstructing immigration agents. She was acquitted of concealing an individual to prevent arrest, a misdemeanor.

Dugan helped an immigrant wanted by ICE agents

On April 18, 2025, immigration officers went to the Milwaukee County courthouse after learning Eduardo Flores-Ruiz had reentered the country illegally and was scheduled to appear before Dugan for a hearing in a state battery case.

Dugan confronted agents outside her courtroom and directed them to the chief judge’s office because she told them their administrative warrant wasn’t sufficient grounds to arrest Flores-Ruiz.

After the agents left, she led Flores-Ruiz and his attorney out a private jury door. Agents spotted Flores-Ruiz in the corridor, followed him outside and arrested him after a foot chase. A week later, FBI agents arrested Dugan in the courthouse, leading her outside in handcuffs.

Flores-Ruiz was deported in November.

Bauer writes for the Associated Press.

BOSTON — A federal judge on Tuesday heard from voting rights groups and a coalition of two dozen states that want the courts to halt President Trump’s executive order seeking to create a federal voter list and limit who can receive a mail ballot.

The plaintiffs argued in two lawsuits that Trump’s order should be found unconstitutional because the states and Congress, not the president, have the power to set election rules. They also told the court that the move imposes a costly burden on state election officials to comply and would spread fear about the possibility of prosecution.

“This is going to be a sea change in the way that some states administer their ballots,” said Michael Cohen, who was part of a team representing California, adding that “it will be difficult to overstate the disruption that this will cause.”

Trump’s executive order, the second one aimed at elections during his second term, comes as he continues to raise the specter of widespread voting by noncitizens as a reason to change election rules. But states already have detailed processes aimed at keeping their voter rolls accurate, and voting by noncitizens has been shown to be rare. It also is a felony that can be punishable by deportation.

His latest order is being challenged through multiple lawsuits, including two filed in U.S. District Court in Boston.

The American Civil Liberties Union, which represented the League of Women Voters in one of the two Boston cases, has called the order “a dangerous attempt to disenfranchise eligible voters nationwide.” The group said the order transforms “the U.S. Postal Service from a neutral mail carrier to an arbiter of who may cast a ballot by mail.”

“This case challenges an extraordinary and abusive assertion of executive power over the administration of federal elections,” the organization said in its complaint.

The hearing comes less than a week after another judge declined to halt the order. U.S. District Judge Carl Nichols, a Trump appointee in Washington, agreed with the Trump administration’s contention that it was too early to block the order because it has yet to be implemented.

The administration, in its motions to dismiss the lawsuits, argued that the plaintiffs lack standing to bring their claims. They also argued the motions are premature and that plaintiffs lack the legal basis to bring their Administrative Procedure Act claim, which governs how federal agencies develop and issue regulations.

Stephen Pezzi, a lawyer for the Trump administration, said the harms the plaintiffs referred to were subjective, since much can change with the voting list before it is finalized. He also said no one would be prosecuted for violating the executive order.

Missouri Solicitor Gen. Lou Capozzi, speaking for the states supporting the list, argued it was too early to say how his state might use the list, but that it was “unlikely” any voter would be removed this year from the voter rolls because of it.

“We are not exactly sure how we would use it,” Capozzi said, adding that “we don’t want this process to be strangled in the crib, so to speak.”

U.S. District Judge Indira Talwani took the requests for motions to halt the order, along with motions to dismiss the cases under advisement.

During oral arguments, Talwani expressed concerns about whether the federal system envisioned under the executive order could be ready for the upcoming midterm elections and about the risks posed to election workers who rely on a state list that differs from the federal one. She also raised doubts about the reliability of a federal list — noting, for example, women who changed their names after getting married or someone who has moved from state to state might be missed.

“Isn’t there a reasonable fear and concern on behalf of voters that they will be precluded?” Talwani asked.

Trump issued the order in March after a bill he supported to overhaul voting stalled in Congress. The order would have had the federal government create a list of eligible voters and then directed the postal service to deliver mail ballots only to those on the list. Election officials argued that it was ripe for abuse and could cause chaos, and the postal union has objected to the idea of mail carriers policing ballots.

The postal service has published a proposed rule required by Trump’s executive order in the Federal Register. Among other things, the rule would not apply to primary elections or overseas ballots.

Since his 2020 presidential election loss to Democrat Joe Biden, Trump has groundlessly claimed mail voting is rife with fraud and has launched a federal investigation into that year’s vote, even though repeated audits and investigations, including ones run by Republicans, found it was free of widespread fraud. Trump also has said he wants to “take over” election administration in Democratic areas.

Casey writes for the Associated Press.