Amanda Frost
Appearances
Apple News Today
Trump says he’s not defying court orders. A judge says otherwise.
The administration continues to say that it is not refusing to comply with court orders, but we have seen it behave in disingenuous ways in terms of ignoring what courts have told it to do. There is a difference in kind if an administration says we no longer have to do what a court tells us to do. And this administration has yet to say that.
Apple News Today
Trump says he’s not defying court orders. A judge says otherwise.
Nonetheless, I think it is extremely disturbing that this administration is playing so fast and loose with the courts.
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Are we in a constitutional crisis?
Yes, I think a constitutional crisis occurs when one branch of government, usually the executive, blatantly, flagrantly, and regularly exceeds its constitutional authority, and the other branches are either unable or unwilling to stop it.
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Are we in a constitutional crisis?
Yes. I mean, I think the way our system works and frankly is intended to work is that each of the three branches maybe pushes at the edges of its powers. They're all interpreting laws and applying laws. And then the question is, well, we have checks and balances. And so at that point, the other branches should step in and push back.
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Are we in a constitutional crisis?
Yeah, so the judicial branch resolves disputes when the executive seeks to implement a law and there's a claim that it violates either another federal statute or the U.S. Constitution, or the executive has just gone far beyond its authority, such as taking over the power of the purse, which belongs to Congress.
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Are we in a constitutional crisis?
Yes, I think it's clear that the president has gone beyond the powers of the executive branch by taking over the power of the purse or attempting to, by attempting to redefine through executive order. constitutional clauses such as the citizenship clause granting birthright citizenship, and taking other action which violate lots of different federal laws.
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Are we in a constitutional crisis?
So I guess the first half of my definition of constitutional crisis has occurred, but the second half we have yet to see what will happen, which is will the other two branches, and particularly the courts, restrain or push back the executive? And we're beginning to see that happen.
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Are we in a constitutional crisis?
So I am deeply concerned, as I think every American should be, about the way in which executive power is being abused, misused, and overstepping the bounds of the authority. But I will say that as of today, at this moment, the Executive branch has not taken the position that it can violate court orders or that it does not need to comply with court orders.
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Are we in a constitutional crisis?
So as long as we remain in a system in which the executive follows or at least states that it has to follow what a court says, I have hope that the system will hold.
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Are we in a constitutional crisis?
Yes. So we go back way back into our country's history when the Supreme Court was very weak and a new institution at the start of our nation was We had Marbury v. Madison, where the Jefferson administration didn't even bother to show up in the Supreme Court to defend its position. And so that was a moment where we could have called that a constitutional crisis. The court was savvy.
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Are we in a constitutional crisis?
It issued a decision that both declared its own power to stay what the law is and at the same time didn't require the executive to do anything to comply, which, of course, avoided the kind of crisis that would occur if the executive simply ignored the court.
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Are we in a constitutional crisis?
First, I'll say it's shocking to hear J.D. Vance state that as if it's a positive thing. That is not a moment to have been celebrated, the fact that the president may have said, and the statement may have been apocryphal, but the president may have said that he would simply ignore a Supreme Court order. That is not a moment to be celebrated in our nation's constitutional history.
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Are we in a constitutional crisis?
As for today, there's a number of mechanisms or tools courts have to enforce their orders. Things like subpoenaing government officials to come and explain themselves if they're not following orders, holding government officials in contempt, or fining individuals. All that said...
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Are we in a constitutional crisis?
If at the end of the day, neither political branch nor the people want to see the law enforced, eventually the courts will fail in their efforts to do so. Our system at the end of the day relies on the people and elections and the political branches of government to ensure that we remain a nation governed by law.
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Are we in a constitutional crisis?
I don't find that to be a moment yet of crisis because the system is working where the response by the Trump administration was we interpret the scope of the order differently. We are appealing, not we are going to refuse to follow any order you issue from here on in. We are ignoring you. The response that the Trump administration has given is within the system as we know it.
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Are we in a constitutional crisis?
If they begin blatantly violating court orders and saying they don't have to follow them, then we're in new territory.
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Are we in a constitutional crisis?
It depends on what the this is. So there's a number of different, of course, legal challenges based on violations of statute, based on violations of the Constitution. So depending on the case, the Supreme Court you know, may uphold what the Trump administration has done or may strike it down.
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Are we in a constitutional crisis?
So one example is the executive order attempting to redefine birthright citizenship and exclude many people who are currently Americans from citizenship or people that we've always thought would be Americans from future citizenship. I expect and hope that if the Supreme Court got that case on appeal, that it would declare the executive order to be unconstitutional.
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Are we in a constitutional crisis?
Other cases may come closer to the line for the court, and the court will move cautiously, I would think, in this new environment.
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Are we in a constitutional crisis?
Yeah, so, of course, no one agreed with Nixon, or at least Nixon at the end of the day left office based on the fact that that view was not accepted by the courts or the people.
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Are we in a constitutional crisis?
I would say today we are at an extraordinary moment where the Trump administration is attempting to expand executive power, which, by the way, has been expanding under previous administrations as well, but is attempting to expand executive power into new and unchartered territories. I think the courts can slow down
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Are we in a constitutional crisis?
that expanse beyond the constitutional limits, but it cannot stop it if the political branches, such as Congress or the people, who, of course, will go and elect again new members of Congress and a new president in four years, if the people don't accept it, then I think that is the last check on executive power, and the courts can only hold the line for so long.
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Are we in a constitutional crisis?
I would say that no, we are not yet in a constitutional crisis, but we are undergoing a constitutional stress test. And we have an executive that has usurped the power of Congress and overstepped the boundaries of the office. And the question is, will the court step up to play their constitutional role in stopping it?
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Are we in a constitutional crisis?
And following from that, will the executive comply with court orders requiring them to stop taking action?
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Is Trump defying the courts?
As of today, at this moment, the executive branch has not taken the position that it can violate court orders or that it does not need to comply with with court orders. So as long as we remain in a system in which the executive follows or at least states that it has to follow what a court says, I have hope that the system will hold.
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Is Trump defying the courts?
I would say that we are dangerously close to crossing that line that we discussed about a month ago. The administration continues to say that it is not refusing to comply with court orders, but we have seen it behave in disingenuous ways in terms of ignoring what courts have told it to do, and so I'm extremely worried.
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Is Trump defying the courts?
Well, I think it does matter in this context, because I think There is a difference in kind if an administration says we no longer have to do what a court tells us to do. And this administration has yet to say that. Nonetheless, I think it is extremely disturbing that this administration is playing so fast and loose with the courts.
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Is Trump defying the courts?
Well, there's no question but that the courts are extremely busy at the moment. But courts are used to dealing with issues on emergency bases. And I would say the branch of government that is most suffering from the flood the zone approach is the executive branch itself. Its filings are sloppy, filled with inaccuracies.
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Is Trump defying the courts?
It doesn't have the information it needs to inform judges about what's happening. It is failing in its role before the courts. And we're seeing the result, which is they're losing most of these cases.
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Is Trump defying the courts?
When I'm feeling optimistic, what I hope will happen is what's intended, which is that the courts, together with the executive, hash out what the law requires. The executive complies, even when it doesn't like the result. And the end result is a win for the rule of law.
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Is Trump defying the courts?
When I'm pessimistic, I fear for what is to come by an administration that seems to be willing to walk right up to the line of open impunity of the law.
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Is Trump defying the courts?
I would say I've heard a variety of perspectives. Some people think we are deep into constitutional crisis already. Others think we need to wait before we make such a declaration. And I guess I'm in that latter camp. And part of the reason for that is our nation has weathered storms before and we have pulled through. I mean, one example, of course, is Bush versus Gore.
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Is Trump defying the courts?
That was an extraordinary legal decision deciding a razor thin election in a way that many people didn't like. And the nation took a deep breath and followed the law. My fear is that that isn't occurring this time, but I'm not going to declare that our system is broken until the administration clearly crosses that line.
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Is Trump defying the courts?
I will say that we've gone a significant step towards that since the last time we spoke a month ago.
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Is Trump defying the courts?
I think what would change, and of course it wouldn't just be professors of constitutional law, it would be the nation as a whole, it would be the markets, it would be the American people. I think what has to change is the idea that this is acceptable. We are a nation which for well over 200 years has had a constitution that we revere.
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Is Trump defying the courts?
For nearly that long, we've had a view that courts are the last word on the meaning of law, whether we like those decisions or not. If we lose that... we lose one of the most powerfully important aspects of our constitutional republic. And I fear we might never get it back.
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Birthright Citizenship
He later told immigration inspectors he was born in the middle room on the second floor at 751 Sacramento Street in Chinatown in the residential apartments over his parents' door.
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Birthright Citizenship
And they dragged men from their beds and hung them and shot them and stabbed them and stole from them. And out of this tiny population, 18 men were lynched that night.
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Birthright Citizenship
So this was a shocking event, I'm sure, for Wong Kim Ark and his family. And I assume they must have heard about it because, of course, they were living in Chinatown in San Francisco in the same state and not so far away.
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But if that's what they thought, they were wrong. Because in 1877, a very similar attack pogrom, racial pogrom, occurred in San Francisco. in San Francisco and Chinatown.
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They packed up their store and moved back to China. We don't know exactly why Wong Kim Ark's family left, but we can imagine that that pogrom, that attack on the Chinese population in the few blocks where they lived must have terrified them and been part of the reason they left.
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At first, Chinese immigrants were welcomed. They were helping to build America. They were building the Transcontinental Railroad and they were key. They were extraordinarily important. And they helped to mine the gold and the precious metals in backbreaking difficult work throughout the West.
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Birthright Citizenship
But then, as so often we see in this nation, there was an economic downturn and they were scapegoated and blamed for the lack of jobs and the poor economy.
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This country was coming out of the Civil War, the end of slavery. And the white workers were told the Chinese are the new slaves and they will undermine your work because they will take jobs at lower pay. They're willing to work in slave-like conditions. And they use that as an excuse for violence and their attempt to drive out Chinese immigrants from the United States.
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There was a sense, too, that the Chinese couldn't assimilate and the Chinese immigrants weren't willing to assimilate.
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The Chinese population was forced by laws as well as social conventions to live in isolated ways, to live in Chinatowns, in ethnic enclaves. The children were barred from attending schools. Anti-miscegenation laws barred marriage. The federal law barred Chinese immigrants from becoming citizens.
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Birthright Citizenship
So there was this sense that the Chinese wouldn't assimilate, but of course it was the laws and policies and practices of the nation that made it so difficult for them to assimilate. But that also made it easy to view them as others, as people who are not like us.
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Birthright Citizenship
But he did. So he reported that he went back to China with his parents around 1877 when he was around eight years old. He came back, he said, at age 11 with an uncle. And he began working as first like a dishwasher and then a cook, first in the mining communities in the Sierra Nevada mountains and then later in Chinatown. It must have been a very rough life for him.
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Birthright Citizenship
He was clearly not being educated at that point, if he ever got much education. And also, it must have been very lonely. He had come from a small village, Ong Sing village, where he'd been living with a younger brother and his parents. And now he was back in the United States, a country he did know well, having grown up his first eight years in the United States.
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But he hadn't been for several years, and he was in a strange new community working. It must have been a lonely and isolating time for him there, too. We also know from a picture where he's wearing sort of a smock and his hair is standing up on end. And you realize that he probably didn't have a lot of opportunities to shower.
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Birthright Citizenship
He was working probably hot, difficult, hard jobs as a chef in a kitchen. So that gave you a sense, too, of the hardships of his life. He lived in the United States until he was about 20, when he went back to China because he wanted to find a wife. He wanted to get married.
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Birthright Citizenship
So he really had no choice but to go back to China and get married. And indeed he did. He went back and married a woman named Yi Shi, who was about 17 years old. And he got married to her, and she moved in with his mother and brother in Ongxing Village in Guangdong Province in China.
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Birthright Citizenship
I'm sure he thought it would go smoothly because he'd landed back in the U.S. twice before, once in the last five years, and he'd been admitted as a U.S. citizen.
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Birthright Citizenship
And they basically claimed that if your parents were not citizens, that even if you were born in the U.S., you were not a citizen of the United States and you could be barred entry or deported from the United States.
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Birthright Citizenship
So I'm guessing they had lots of contacts and networks who were aware of who was coming in and what was happening on those steamships. The group was known colloquially as the Chinese Six Companies.
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Birthright Citizenship
It was a group of representatives from all the different regions of China who were immigrants to the U.S., living in the U.S., who had made it in the United States. They had some money, they had some resources. And when the Chinese Exclusion Act went into effect, they mobilized. And they said, we are going to fight back.
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Birthright Citizenship
And so the Chinese six companies hired a lawyer for Wong Kim Ark, a well-known lawyer named Thomas Riordan. And he files a habeas petition on Wong Kim Ark's behalf.
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Birthright Citizenship
So the government doesn't give up, but the government immediately says, we're appealing this. And in fact, Wong Kim Ark is only allowed off that steamship because he posted a $250 bail. And those records are lost to history, but I'm guessing that the Chinese six companies produced that $250. He was kept for four and a half months, and he was only released on January 3rd, 1896.
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Birthright Citizenship
And Holmes Conrad was tall, patrician. He looked like exactly the kind of person that could be trusted to convey the law clearly and accurately to the justices. His reputation at the time was that he was an excellent lawyer, an excellent representative of the US government. But if you dig a little deeper into the background of Holmes Conrad, you see some really interesting personal details.
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Birthright Citizenship
So for at least a little period of time, a short period of time, Holmes Conrad, too, was not a citizen of the United States. He wouldn't have been able to vote or hold office. It's interesting to think that, at least for a brief period of time, he shared this issue with Wong Kim Ark about whether he would be considered a citizen of the United States.
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Birthright Citizenship
One was Maxwell Evarts. In a way, he wore a dual hat. He was hired by the Chinese six companies, paid by them to represent Wong, but the railroad, which he also worked for, clearly supported him.
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Birthright Citizenship
The second lawyer was a man named J. Hubley Ashton, who had worked for President Lincoln. And both men deeply believed in Lincoln and the Reconstruction era's mission of not just ending slavery, but establishing racial equality.
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Birthright Citizenship
He surely knew that if he lost, he would be forced to leave the United States, the country in which he'd been born and spent most of his life. The End
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Birthright Citizenship
They're in the Capitol building because there was no Supreme Court building at this time. And they were in front of these nine black robed men with Chief Justice Fuller in the middle, who was very short, so he was sitting on an elevated chair.
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Birthright Citizenship
Many members of the court were on record as being hostile to Chinese immigrants. The argument took place over two different days, Friday, March 5th, 1897, and Monday, March 8th, 1897.
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Birthright Citizenship
He would have argued, as he did in his brief, that the 14th Amendment, which guarantees citizenship to all born in the United States... has a caveat, or he would have said an exception, which is only those who are born in the United States and who are subject to its jurisdiction are automatically birthright citizens of the United States.
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And so Holmes Conrad would have grasped on to that language and said, well, Wong K. Mark, sure, he was born in the United States. We can't refute that. But we do not think he was subject to the jurisdiction of the United States because his parents were loyal to the emperor of China. And so was their son by sort of automatic transmission.
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And so that means the son cannot automatically acquire citizenship based on birth.
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Also said to the Supreme Court that the 14th Amendment to the U.S. Constitution is itself unconstitutional. And his reason for that was he said the South was coerced into ratifying the 14th Amendment in 1868, and therefore it was never validly a part of the Constitution. And we can see in that argument, of course, that he's trying to litigate the Civil War. He's trying to say,
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The Reconstruction Amendment should not be law. We should turn back the clock.
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And in fact, the lawyers for Wong Kim Ark call him on that. And they say in their brief, this nation spilled so much blood to fight this. for the end of slavery and to establish the 13th and 14th and 15th Amendments and change our nation and change our Constitution. And you should not accept the argument that these amendments are invalid.
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So the length of time between the oral argument and the ruling was over a year. So the case was argued March 5th and March 8th, 1897, and the final Supreme Court decision wasn't announced until March 28th, 1898. And that was an extraordinary long period of time. It would be extraordinary today. It was even more so then.
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Birthright Citizenship
So you can imagine the fear that Wong Kim Ark might have been feeling as month after month went by without a decision. And it's the sign the Supreme Court was really struggling with what to do in this case and how to decide it. And his lawyers were probably also greatly concerned. But they were brilliant lawyers.
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Birthright Citizenship
And they told the Supreme Court, if you rule for the government, that the children of immigrants are not citizens, you will take away citizenship from hundreds of thousands, maybe millions of people, including lots of white people. And the court heard that loud and clear and even noted that in its opinion.
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On March 28th, they issued a ruling, 6-2, because they were down a member, so only eight members.
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Regardless of the immigration status of their parents are citizens of the United States.
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The court focused on that language that all persons, this is intended to apply to everyone. And it's not intended to be so restrictive as to take away citizenship or bar citizenship from the children of immigrants. And remember, the United States is a nation of immigrants. It's not like there's just a few people who are born to non-citizen parents.
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It's a significant percentage of the country every year is born to immigrant parents.
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Birthright Citizenship
And then the court threw in at the very end, they said, and if we were to rule any other way, we would take citizenship away from lots of children of not just the quote unquote obnoxious Chinese, which is how the court often referred to this group, but also the children of English immigrants and German immigrants and French immigrants.
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Birthright Citizenship
That, I think, also pragmatically led them to say, no, Wong Kim Ark, we're ruling for you, not so much because we're sympathetic to children of Chinese immigrants, but because we can't undo the citizenship of the children of immigrants in this country.
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Birthright Citizenship
Well, I would love to say it was a fully happy ending. His problems were not over in part because the U.S. government didn't fully give up. It gave up on that formal legal argument. But I feel in some ways they just switched the battle to other venues.
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Birthright Citizenship
So Wong knew that if he wanted to leave the country again, he would have to prove to everyone's satisfaction, all of these white immigration inspectors, that he was the man who'd won the Supreme Court case, that he was Wong K. Mark, that he was a citizen born in the United States.
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And that if they disbelieved him, he'd be stuck all over again in the steerage hold of a steamship trying to argue he could enter his country. And that must have made him very leery to even think about leaving the United States.
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Birthright Citizenship
He was living in El Paso, Texas just a few years later after his win in October of 1901, living and working there, and he was arrested. and charged with being a Chinese immigrant, not a native-born American, a Chinese immigrant who was illegally in the United States. He had to post a $300 bond.
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And it took months before he could convince these officials, I'm the guy who won the Supreme Court case establishing birthright citizenship. That's who I am. I am a citizen who gets to stay. This is the racial profiling of its time.
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Including Wong Yuk-Chin, who arrived in 1926, age 11, just a little boy. He endures this long trip and three weeks on Angel Island and all the questioning that the immigration inspectors put everyone through. But then he was admitted to the United States as a U.S. citizen.
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His children and grandchildren live in the United States today, so the family established itself in the United States. It was an enormous struggle, but they succeeded in doing so.
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That steamship journey took about a month, and he would have ridden in steerage near the engine room, which is where most of the Chinese immigrants traveled. He was a cook named Wong Kim Art. He would have slept on a bunk, crammed in with everyone else on steerage, and they overcrowded these boats.
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It would have been certainly a fairly squalid way to travel and very difficult in terms of limited food and water. I think when he saw San Francisco Bay emerge out of what was likely the foggy morning, he must have been thrilled to think, I'm finally back home and I can get off this boat and go back to my home in San Francisco.
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Birthright Citizenship
At this point, the Chinese Exclusion Act was in effect. And so if you were a Chinese laborer, you were not allowed to enter. Wong Kim Ark argued with the customs official. He said, yes, I'm a laborer, I'm a chef, but I'm a citizen. And here's the proof. He had his certificates. He knew that he was born in the United States and that meant he was a U.S. citizen.
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But he also must have had a little fear about that because he filed a certificate of identity before he left that had a picture of him and said, I was born in the United States. I'm a US citizen.
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And he had three white witnesses, white people, because that's all the only kind of witness the US government would accept, who were willing to say he was born in the United States and they'd known him from childhood. So he was prepared. But that preparation didn't add up to much because... Unbeknownst to Wang, while he was in China, the U.S.
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government had decided it wanted to bring a test case challenging birthright citizenship, particularly for the children of Chinese immigrants. So they chose him, and they didn't let him get off that boat.
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Wong Kim Ark's parents were one of a tiny minority of Chinese immigrants coming into the United States in the 1860s and 70s. We don't know exactly when they arrived, but we know they arrived at least before Wong Kim Ark's birth.
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And I'm the author of a book entitled You Are Not American, Citizenship Stripping from Dred Scott to the Dreamers.