On June 27^th of this year, the U.S. Supreme Court decided the case, Trump v. CASA.  The Court held that federal district courts lack the authority to issue nationwide injunctions.  The Court, however, did not tackle the underlying issue that the nationwide injunction was issued to address President Trump’s executive order limiting birthright citizenship.

On December 5^th, the Court agreed to take up the constitutional question of Trump’s executive order.  The case will likely be argued in March or April of 2026 and will be decided in late June.

My prior piece on this topic addressed whether the text of the Fourteenth Amendment’s Citizenship Clause would grant U.S. citizenship to children born to illegal aliens.  I would like to now focus on how the Citizenship Clause was interpreted closer to the time when it was adopted in 1868.

For reference, here are citizenship clauses of the Fourteenth Amendment and the Civil Rights Act of 1866.  These came into being in the wake of the American Civil War.

The Citizenship Clause of the Fourteenth Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The Citizenship Clause of the Civil Rights Act of 1866:

That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States…

The Fourteenth Amendment clause is based on the Civil Rights Act of 1866 clause and, though worded differently, have identical meanings.

At the time when the Fourteenth Amendment was ratified, the classes excluded from birthright citizenship were children born to: foreign ambassadors, enemy soldiers, all other foreign national with allegiance to another nation, and American Indians.

Let us now review three cases where America-born individuals had their U.S. citizenship called into question.

In 1898, the Supreme Court decided the case of United States v. Wong Kim Ark.  Wong Kim Ark, the son of Chinese immigrants, was born and raised in San Francisco.  In 1895, after a short trip to China, Wong returned to the U.S. and was detained by authorities and threatened with deportation.  Wong sued, arguing that he was a citizen of the United States.  The Supreme Court agreed with his claim.  His parents were legal permanent residents; therefore, they no longer had political allegiance with China, a foreign power.

In 1890, according to the Heritage Foundation, Mary Devereaux, a pregnant Irish woman, was being held on a ship in New York Harbor awaiting immigration approval.  Devereaux left the ship for medical treatment and then gave birth in a New York hospital.  The Justice Department later denied her immigration application.  Both Devereaux and her daughter were sent back to Ireland.  Her daughter, though born in the United States, was not a citizen because her mother had no political allegiance to the United States and, therefore, was not born subject to its jurisdiction.

In 1885, also according to the Heritage, the State Department rejected Richard Greisser’s claim of U.S. citizenship.  Greisser had been born in Ohio in 1867, 18 years earlier, but his German parents never intended to stay in the United States and returned to Germany shortly after his birth.  Because Greisser’s parents owed no political allegiance to the United States, he was not born subject to its jurisdiction.

When the Supreme Court hears the case on Trump’s executive order, the justices need only answer one question: What would the Fourteenth Amendment’s meaning in 1868 say about granting American citizenship to children of illegal aliens at birth?  Not only can the Court look at the text of the amendment, but it can also look to what the government understood the amendment – through its own actions — to mean during the decades after the amendment’s adoption.

The first case, the Supreme Court ruled that Wong Kim Ark had acquired citizenship at birth.  The second and third cases, Mary Devereaux’s daughter and Richard Greisser, according to the U.S. government, did not acquire citizenship at birth.  Though we did not see the same outcome in these cases, the approach to deciding these cases was the same: the political allegiance of the parent(s) was central to the analysis.

I expect this will be the approach that some of the Supreme Court justices will take when evaluating whether the American-born children of illegal aliens acquire citizenship at birth.  From the precedent set back in the nineteenth century that the mere fact that a child born on U.S. soil does not automatically confer citizenship, I also expect that there will be a majority on the Court to uphold Trump’s executive order.  This is what the Citizenship Clause of the Fourteenth Amendment would compel.  A solid majority of the Court will conclude that the Citizenship Clause is more about who is not a citizen.

This, however, need not be the end of the story.  The Court will only decide how the language of the Fourteenth Amendment would apply to the children born to illegal aliens.  The American people could change the status of such children by having Congress act as it did a century ago when it passed the Indian Citizenship Act of 1924.

Whatever Congress chooses to do on this matter is clearly up to its members.  The Supreme Court, however, has a duty to interpret the law correctly.  This is especially true of the Fourteenth Amendment.  The amendment was paid for with the blood of many Americans, North and South, black and white, Republican and Democrat.  It was the price paid to extend citizenship to the nation’s 4.8 million black residents.

The Court should not agree with those challenging the constitutionality of Trump’s executive order.  Placing its seal of approval on an erroneous interpretation of the Fourteenth Amendment’s Citizenship Clause would cheapen the value of American citizenship.

This should have been posted in February 2025.

On December 6, 1865, eight months after the conclusion of the American Civil War, the American people ratified Thirteenth Amendment of the Constitution, officially ending slavery in this country.

Despite freeing the enslaved population, the new amendment created a new problem: what would be the legal status of this population.  Would each state decide their status?  Would they be deported?

Congress decided to enact the Civil Rights Act of 1866.  This act extended citizenship to the formerly enslaved.  The Fourteenth Amendment was not far behind.

President Trump has issued an executive order ending automatic Birthright Citizenship.

We should be more specific on what he wants to end.  Currently, the United States grants citizenship to anyone born in the U.S. soil, except to children of foreign ambassadors and enemy soldiers.  Trump wants to stop offering citizenship to those children born to temporary visitors and to children born to illegal aliens.  Much of the public’s focus is on the latter.

Trump states he will be able to accomplish this through executive action, meaning that he alone as president can enforce the law consistent with the way he interprets it.  The law in question is the Fourteenth Amendment of the U.S. Constitution.  Specifically, the first sentence of the amendment, known as the Citizenship Clause.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

When most people read that sentence, it sounds like if someone is born here, that someone is a citizen of this country.  However, as mentioned above, children of foreign ambassadors born on U.S. soil are not citizens of this country.  The Citizenship Clause excluded some people from receiving birthright citizenship, as we can see in the often-ignored phrase and subject to the jurisdiction thereof that defines those included and excluded classes when allowing birthright citizenship.  The question then becomes the meaning of the phrase subject to the jurisdiction thereof.  The answer is found in the Civil Rights Act of 1866, enacted two months before Congress proposed the Fourteenth Amendment.

That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . .

After Congress passed the Civil Rights Act of 1866, there was concern that Congress lacked constitutional authority enact the legislation.  There was also concern that a future Congress could repeal the act.  Because of these concerns, Congress proposed the Fourteenth Amendment.

The similar language in the citizenship clauses in the amendment and the act was no coincidence.  Given the similar wording, subject to the jurisdiction thereof, in the amendment, means that one is not subject to or have any allegiance to a foreign power.  The Civil Rights Act of 1866 also excludes American Indians (those who belonged to tribal nations and were not subject to the jurisdiction of the United States) from birthright citizenship.

When the Fourteenth Amendment was ratified in 1868, the classes excluded from automatic birthright citizenship were children born to: foreign ambassadors, enemy soldiers, all other foreign nationals with allegiance to another nation, and American Indians.

Today we face with a category not specifically addressed in the 1860s and that category is illegal aliens.  Should children born to an illegal alien on U.S. soil receive automatic birthright citizenship?  Since we cannot ask those who voted to propose the amendment or those who voted to ratify it, we must use judgment to answer the question.

Both the Civil Rights Act of 1866 and the Fourteenth Amendment were primarily concerned about defining American citizenship.  The key reason for addressing this was Dred Scott v. Sandford, an 1857 Supreme Court case that stated, among other things, that African-descended people could never be citizens of the United States, whether enslaved or free.  The Fourteenth Amendment overturned this decision.  In 1868, the clear understanding was that the children of American blacks would be granted citizenship from birth.

As already stated, those barred from birthright citizenship include the children of foreign ambassadors, American Indians, and enemy soldiers.  We have invited foreign ambassadors to live in the country while serving in that capacity.  The government allowed American Indians to stay in the country, albeit on reservations.  We clearly did not want enemy soldiers on U.S. soil.  In all three categories, we deny birthright citizenship to children born in the United States.

We have on the one hand white and black Americans, whose children are granted citizenship and on the other hand foreign ambassadors, American Indians, and enemy soldiers whose children are not.

Illegal aliens are, by definition, not Americans but are neither ambassadors, nor American Indians, nor enemy combatants.  Where on the spectrum should illegal aliens fall?  Illegal aliens, also by definition, have no legal right to be on American soil, as they were not invited.  It makes the most sense that they fall between ambassador and American Indians on the one hand and enemy combatants on the other.  It would be incoherent to grant birthright citizenship to the children to illegal aliens and deny automatic birthright citizenship to the children of ambassadors and American Indians.

In 1898, however, the Supreme Court, in the case of United States v. Wong Kim Ark, decided that a child born to parents who are not U.S. citizens but are legal permanent residents is entitled to birthright citizenship.

What should be clear though is that the Citizenship Clause is more about who is not entitled to birthright citizenship than who is entitled to it.

This is the position the Trump Administration should take.  It is both logical and constitutional.  The Citizenship Clause is self-executing, meaning the president has the authority to enforce the clause.  Congress neither needs to write a law to give the president the authority to enforce Section 1 of the Fourteenth Amendment nor does Congress need to a propose a new amendment to address this issue.

Trump has declared that the United States will no longer recognize birthright citizenship, so the American Civil Liberties Union, along with other groups, challenged this declaration legally.  This battle will find its way into federal court and one day, the Supreme Court.

It is difficult to know how the Court will decide such cases.  When Trump was in office, he wanted to end birthright citizenship, but ultimately did not.  Likely, he received advice from his team that a Supreme Court challenge might not go his way given the Court’s makeup.

During that term, however, he managed to get the U.S. Senate to confirm all three of his nominees to the high court, including Justice Amy Coney Barrett, who was installed shortly before his term ended.  My guess is that Trump and his advisors like his chances now to have the Supreme Court endorse his reading of the Citizenship Clause of the Fourteenth Amendment of the Constitution.

It is worth noting that to extend citizenship to the children of illegal aliens in light of the experience of blacks in America is offensive and fails to grasp basic facts of history.  The ancestors of American blacks were brought here against their will and kept here against their will.  Many of them and their descendants through their “unrequited toil” became the backbone of the Southern economy.  Some even served on both sides of the American Revolutionary War and on both sides of the American Civil War. 

Unlike American blacks, illegal aliens have no historical connection to American traditions, whether economic, linguistic, cultural, or military.  In short, American blacks are Americans.  They were Americans before they were citizens because they were Americans before they were free.

Since Election Day 2024, President Trump has raised the issue of Birthright Citizenship.  This is not the first time this has come up.  It was discussed during the 2016 campaign, and Trump raised this issue during the four years he was in office.

Specifically, Trump wants to end birthright citizenship.  We should be more specific on what he wants to end.  Currently, the United States grants citizenship to anyone born in the U.S. soil, except to children of foreign ambassadors and enemy soldiers.  Trump wants to end offering citizenship to children born to temporary visitors and to children born to illegal aliens.  Much of the public’s focus is on the latter.

Trump states he will be able to accomplish this through executive action, meaning that he alone as president can enforce the law consistent with the way he interprets it.  The law in question is the Fourteenth Amendment of the U.S. Constitution.  Specifically, the first sentence of the amendment, known as the Citizenship Clause.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

When most people read that sentence, it sounds like if someone is born here, that someone is a citizen of this country.  However, as mentioned above, children of foreign ambassadors born on U.S. soil are not citizens of this country.  Clearly, the Citizenship Clause excluded some people from receiving automatic birthright citizenship.  It is the often-ignored phrase and subject to the jurisdiction thereof that defines those included classes and excluded classes when deciding who is entitled to birthright citizenship.  The question becomes what is the meaning subject to the jurisdiction thereof.  The answer is found in the Civil Rights Act of 1866, enacted two months before Congress proposed the Fourteenth Amendment.

That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . .

After Congress passed the Civil Rights Act of 1866, there was concern that Congress lacked constitutional authority enact the legislation.  There was also concern that a future Congress could repeal the act.  Because of these concerns, Congress proposed the Fourteenth Amendment.

The similar language in the citizenship clauses in the amendment and the act was no coincidence.  Given the similar wording, subject to the jurisdiction thereof in the amendment means that one is not subject or have any allegiance to a foreign power.  The Civil Rights Act of 1866 also excludes American Indians (those who belonged to tribal nations and were not subject to the jurisdiction of the United States) from birthright citizenship.

When the Fourteenth Amendment was ratified in 1868, the classes of individuals excluded from automatic birthright citizenship were children born to: foreign ambassadors, enemy soldiers, all other foreign nationals with allegiance to another nation, and American Indians (not taxed).

Today we are faced with a category of individuals not specifically addressed in the 1860, and that category is illegal aliens.  Should children born to an illegal alien on U.S. soil receive automatic birthright citizenship?  Since we cannot ask those who voted to propose the amendment or those who voted to ratify it, we must use judgment to answer the question.

As already stated, those who are who are already barred from automatic birthright citizenship include foreign ambassadors, American Indians, and enemy soldiers.  We have invited foreign ambassadors to live in the country while serving in that capacity.  We have allowed American Indians to stay in the country, albeit on reservations.  We clearly did not want enemy soldiers on U.S. soil.  In all three categories of individuals, we deny birthright citizenship children born in the United States.

Illegal aliens are neither ambassadors, nor American Indians, nor enemy combatants.  On the spectrum of non-American residents, Illegal aliens would appear to fall somewhere between ambassador and American Indians on the one hand and enemy combatants on the other.  It would be incoherent to grant automatic birthright citizenship to the children to illegal aliens and deny automatic birthright citizenship to the children of ambassadors, American Indians, and enemy combatants.

This is the position that the incoming Trump Administration should take.  It is both logical and constitutional.  The Citizenship Clause is self-executing, meaning the president has the authority to interpret the clause and to enforce the clause.  Congress neither needs to write a law to give the president the authority to enforce Section 1 of the Fourteenth Amendment nor does Congress need to a propose a new amendment to address this issue.

When Trump declares that the United States will no longer recognize birthright citizenship, the American Civil Liberties Union, along with other groups, will challenge this declaration legally.  This battle will soon find its way into federal court and will one day find itself before the Unites States Supreme Court.

It is difficult to know how the Court will decide such cases.  When Trump was in office, he wanted to end birthright citizenship, but ultimately did not.  Very likely, he received advice from his team that a Supreme Court challenge might not go his way during much of first term, given the Court’s makeup.  During that term, however, he managed to get the U.S. Senate to confirm all three of his nominees to the high court, including Justice Amy Coney Barrett, who was installed shortly before his term ended.

My guess is that Trump and his advisors like his chances now to have the Supreme Court endorse his reading of the Citizenship Clause of the Fourteenth Amendment of the Constitution.

Today would be Abraham Lincoln’s 215^th birthday.

I have stated that the Republican Party should be restored to the Party of Lincoln.  Someone once asked me what does it mean to be the Party of Lincoln.  Given that we have an important presidential election this year, and given the turmoil in the nation’s capital, across the country, and around the world, now is as good a time as any to provide an answer.

The Individual

We believe:

• In the dignity of the individual.
• That the individual can pursue happiness, while respecting others in their pursuit.
• That the individual is unique and is not a faceless member of an identity group.

The Constitution

We believe:

• That the Constitution of the United States is a legal document and the supreme law of the land.
• That the Constitution is a contract between the government and the people.
• That the role of government is to secure individual liberty.

The Declaration

We believe:

• That the Declaration of Independence is our nation’s founding document.
• That America is a sovereign country, and that Americans are a distinct people.
• That the Declaration should serve as a reminder of the enduring threat of tyranny.

In summary, the Party should prioritize what is in the best interest of American citizens and must place the government back on the side of the people.  The Party should support and defend the U.S. Constitution and reject any public policy that is at odds with the document.  The Party should promote the principles underlying the Declaration of Independence and fight against those forces that actively undermine those principles.  These tenets are ones embodied in the presidency of Abraham Lincoln.

I believe that if Republicans can remain true to these beliefs, we can make the Republican Party great again.

Happy 2023!

Speaking at a conference of about five hundred mostly judges and lawyers in July, Justice Elena Kagan said that the Supreme Court’s legitimacy is threatened when long-standing precedent is discarded, and the Court’s actions are seen as motivated by personnel changes among the justices.  She also said that people are rightly suspicious if a justice leaves the court or dies, and another justice takes his or her place and “all of the sudden” the law changes.  Justice Kagan made clear that she was not talking about “any particular decision” or “any particular series of decisions,” but it’s difficult to believe that she did not have the recent Hobbs v. Jackson Women’s Health Organization (Hobbs) case, which overturned the central holding in Roe v. Wade (Roe) and Planned Parenthood v. Casey (Casey), in mind.

On the point that the Court’s legitimacy is threatened when long-standing precedent is discarded, Kagan may have a point, however, this is why the Court should decide a case correctly in the first place.  Roe was based on a preferred policy outcome, not the Constitution; the word abortion does not appear, nor is it referred to, in the Constitution, therefore, the Court should not have ruled on the case in 1973.

When a Supreme Court decision is not based on the Constitution or federal statute, the decision will be inherently unstable, because the losing side will inevitably feel cheated and will not accept the outcome, especially on a sensitive matter like abortion.  When the outcome of an important case is not accepted by a sizable portion of the public, the outcome is vulnerable to challenges.

Roe was challenged by Casey in 1992.  Casey partly overruled Roe (in its rationale) but affirmed Roe in its central holding that there was a federal constitutionally protected right to an abortion.  By the year 2022, the protected right to an abortion had been in place for 49 years.  Anyone born after 1960, which is about 80% of the public, grew up in Roe v. Wade America.  These Americans did not live in or were aware of a time when abortion was not universally legal.  The Hobbs decision would appear stunningly cruel to anyone who believes in legalized abortion and felt that, for the most part, it was a settled legal matter.

This Court in 1973 and 1992 issued opinions where abortion was a right protected, not by the Constitution, but by lawyers in black robes.  The Constitution, even with its amendments, is an enduring and stable document.  Members of the Court, however, come and go over time.  When “rights” are protected by lawyers in black robes, it invites a situation like Hobbs, where the legal correction can come years after the initial ruling, causing societal shock.  It is better to have Supreme Court rulings that are rooted in the text of the Constitution rather than the philosophical leanings of lawyers in black robes.

The half-century controversy over this issue is due to the handy work of Weak Republicans.  The Roe opinion had seven Court members in the majority, with two in dissent.

In the majority were:

• Chief Justice Warren Burger (Republican) nominated by President Nixon (Republican)
• Justice William O. Douglas (Democrat) nominated by President F. Roosevelt (Democrat)
• Justice William Brennan (Democrat) nominated by President Eisenhower (Republican)
• Justice Potter Stewart (Republican) nominated by President Eisenhower (Republican)
• Justice Thurgood Marshall (Democrat) nominated by President L. Johnson (Democrat)
• Justice Harry Blackmun (Republican) nominated by President Nixon (Republican)
• Justice Lewis Powell (Democrat) nominated by President Nixon (Republican)

In dissent were:

• Justice Byron White (Democrat) nominated by President Kennedy (Democrat)
• Justice William Rehnquist (Republican) nominated by President Nixon (Republican)

Six of the nine justices in 1973 were nominated by Republican presidents.  Four of the six were Republicans themselves.  Three of the four were in the Roe majority.  One of the three, Blackmun, authored the opinion.

Had Burger, Stewart, and Blackmun rejected the notion that the right to an abortion is rooted in privacy, a word that is nowhere to be found in the Constitution and had the three not signed onto a trimester scheme as to when the government had an interest in regulating abortion, which is legislating, not judging, the decision would have been five-to-four to uphold the Texas law.  Had this happened, each of the fifty state legislatures would have produced abortion laws that would have reflected the will of the people in those states.  Unfortunately, because of weakness, whether intellectual or political, this did not happen.

The Casey opinion had five Court members in the majority, with four in dissent.

In the majority were:

• Justice Harry Blackmun (Republican) nominated by President Nixon (Republican)
• Justice John Paul Stevens (Republican) nominated by President Ford (Republican)
• Justice Sandra Day O’Connor (Republican) nominated by President Reagan (Republican)
• Justice Anthony Kennedy (Republican) nominated by President Reagan (Republican)
• Justice David Souter (Republican) nominated by President George Bush (Republican)

In dissent were:

• Chief Justice William Rehnquist (Republican) nominated by President Reagan (Republican)
• Justice Byron White (Democrat) nominated by President Kennedy (Democrat)
• Justice Antonin Scalia (Republican) nominated by President Reagan (Republican)
• Justice Clarence Thomas (Republican) nominated by President George Bush (Republican)

Eight of the nine justices in 1992 were nominated by Republican presidents.  All eight were Republicans themselves.  Five of the eight were in the Casey majority.  Three of the five, O’Connor, Kennedy, and Souter, authored the joint opinion.

Five Weak Republican violated their oaths by rejecting the Constitution they swore to support and defend.

From the joint and concurring opinions, it appears that the five justices, particularly Blackmun and Stevens, believe in legalized abortion as a policy matter, which shows that their weakness is their inability to sign onto an opinion with which they do not personally agree.  Also, it is not a surprise that Blackmun voted as he did since was the author of Roe.

We have seen untended consequences of rulings by Weak Republicans in other cases.

With O’Connor, we saw her weakness in the 2003 affirmative action case, Grutter v. Bollinger.  She wrote the majority opinion in that case where she announced that there was a diversity exception to the Fourteenth Amendment.  The ruling effective says that a university may engage in race discrimination in its admission policy, so long as it is the good kind of race discrimination.  It was a constitutional lie, and she knew it was a constitutional lie.  She was too weak to allow the chips fall they may in university admissions because she feared that elite schools, not having a “critical mass” of black Americans, would make the schools (and, perhaps, America) look bad.  Because of this ruling, our country is now obsessed with racial diversity in nearly every walk of life.

With Kennedy, we saw his weakness in the 2015 same-sex marriage case, Obergefell v. Hodges.  He wrote the majority opinion where he announced that a state that will not formally recognize same-sex unions violates the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment.  I am certain that no politician in the 1860s who voted to propose or voted to ratify the Fourteenth Amendment would have thought that the amendment was odds with a state refusing to recognize same-sex marriage.  This ruling was a constitutional lie, and he knew it was a constitutional lie.  He was too weak to do the right thing because he was looking for a legacy for himself.  Because of this ruling, our nation is obsessed with gender identity and teaching same-sex sexual conduct to young children in schools.

When Weak Republicans on the Supreme Court make mischief, the nation pays the price.

We are now in the year 2022.  It has been 49 years since Roe and 30 years since Casey affirmed Roe.   Given the length of time that has elapsed, one could reasonably ask, why not just let the half-century precedent stand?  We look to history for the answer.

An American president in 1863 began a speech with the following words,

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition at all men are created equal.

and ended the speech with

. . . and that government of the people, by the people, for the people shall not perish from the earth.

President Lincoln in his Gettysburg Address reminded the crowd that this nation, founded in 1776, would be one that is a republic, where all men, rich or poor, would be equal under the law, and that we would have representative government, which would reflect the will of the citizens.  Lincoln saw the American Civil War as the ultimate test as to whether such a nation could endure.  To Lincoln, winning the war was essential, not just to restore the Union or to abolish American slavery, but to ensure that the experiment in self-governance would not perish from the earth.  After four years and over 500,000 casualties (both sides), the war was won.  The nation would endure.

If the nine unelected lawyers on the Supreme Court are permitted to govern the country as policy makers, we are no longer a self-governing nation.  This would be the death of the American idea.

It is for this reason that the Supreme Court made the correct decision in overturning the central holding in Roe and in Casey.

Should Donald Trump seek the Republican nomination for president of the United Sates?

With the election of 2024 two years away, that is what Republicans around the country are pondering.

When this question comes up in my conversations with others, there is almost always a pause, often accompanied with a deep breath, before responding.  This is true whether the one responding is one of my friends or the one responding is me.

Clearly, Republicans who never liked Trump, especially those associated with the Lincoln Project, would prefer that he stay retired from public life.  And of course, there are true-blue MAGA loyalists who are 100% behind him running.  However, there are those who strongly supported him in 2020 (and possibly 2016) who are not sure if it would be the best idea for him to run for a third time.

There are good arguments on both sides.

Arguments for:

During his presidency, Trump advocated policies such as tax reform (Tax Cuts and Jobs Act) and reducing federal regulations (Executive Order 13771), which contributed to a strong economy.

He prioritized fighting international terrorism.  He defeated the Islamic State.  He also ordered the assassination of Iran’s Qasem Soleimani, who was responsible for killing hundreds of American soldiers in Iraq and Afghanistan.

Trump, in his effort to preserve, protect and defend the Constitution, worked with the Federalist Society and The Heritage Foundation to select over two hundred nominees to serve as federal judges, including three to the Supreme Court.

To bring peace to the Middle East, the Trump Administration brokered the Abraham Accords, where United Arab Emirates, Bahrain, Sudan, and Morocco signed agreements to normalize relations with Israel.  If he were sworn in for a second term, more Arab countries would have joined the accords.

These are just some of accomplishments of the Trump presidency.  Trump, if he ran, could make a persuasive case that, if re-elected, he would continue the great work during his four years in office.

Arguments against:

Born June 14, 1946, Trump would be 78 years, seven months old on Inauguration Day in 2025, and would the oldest man to take the presidential oath of office.  Joe Biden was only 78 years, two months old when he took the oath in 2021.  Despite Trump’s apparent good physical and mental health, one could argue that he may be too old for to meet the demands of the office.

Trump has dominated national news coverage since he announced for president in June 2015.  Even out of office, he gets nearly the level coverage as when he was in office.  If he runs and wins in 2024, it will be nine and a half years of coverage, with the potential of four additional years.  The Republican Party’s primary voters could conclude that continued intense – mostly negative – press coverage is more drama than they are willing to accept.  It might be better to nominate Nikki Haley or Ron DeSantis.

His televised rallies from around the country show high levels of enthusiasm from his supporters.  Trump still energizes the Republican base.  The trouble is that Trump also energizes the Democratic base.  Democrats of all stripes – from moderates to liberals – hate Trump.  Of course, nearly all loyal Democrats will oppose any Republican nominee, but it would not be with the same ferocity as it would be with Trump.  They, along with their Republican allies, will by hook or by crook see to it that he is not re-elected.

Will he?

Given that he drops big hints in interviews and at his rallies that he is likely to run, and given that he feels that he was wrongly denied a second term in 2020 due to alleged voter fraud, and given that the FBI recently raided his Florida home, it is a virtual certainty that Trump will run.

It is worth noting though that a Trump candidacy is not only not a lock for victory in November 2024, but there is also no guarantee that he would win the Republican nomination.  While Trump would be the favorite to win the nomination, should DeSantis throw his hat into the ring, it would be a competitive contest, especially in the early primary and caucus states.

If Trump runs and wins a second term, there would be another benefit for everyone, both here and abroad.  When a president first takes office, foreign leaders size up the new executive.  They, especially our adversaries, will try to determine what they think they are able to get away with (think Kennedy, Khrushchev, and Cuban Missile Crisis).  Having already served as president, Trump has already gone through this vetting.  He has demonstrated himself to be a strong global leader.  One key advantage of him winning in 2024 is that on day one there will be adult supervision on the world stage.  Nations like Russia and China will be less aggressive in their conduct.  This may be the best reason for him to follow Grover Cleveland’s example.

Whatever the merits of a second Trump presidency, the print and television media will mercilessly attack him during the campaign.  And it will be uglier than the first two campaigns.  The media’s treatment of Trump, however, should have never been a surprise as we have seen this kind of reaction years before Trump sought national office.  We once had a leader who, as a populist, spoke on behalf of the people, like Trump.  We once had a leader who believed in expanding domestic sources of energy, like Trump.  We once had a leader who drew very large crowds at political rallies, like Trump.  We once had a leader whose endorsement many Republican candidates sought, like Trump.  We once had a leader who was utterly despised by the mainstream media, like Trump.  Donald Trump may be the leader of the current Republican Party, but this Republican Party is one that she inspired.

It took eight LONG years to count the votes of the election of 2008.

The result: Sarah.  Palin.  Won.

Late one evening over a week ago, I got word that the Supreme Court of the Unites States was about to overturn Roe v. Wade.  The details about this bit of news became known to me the following morning as I read and listened to news coverage.  Someone leaked a draft of the ruling on the Mississippi abortion case (Dobbs v. Jackson Women’s Health Organization).  We do not know who that someone is, but many are speculating that the individual is a clerk to one of the justices.

The reaction to the leaked draft was quick and fierce.  Many were outraged at the breach of trust by the individual who provided the leak; others were even more outraged by the content of the draft.  Conservatives dominated the former group, where liberals dominated the latter.

The hysteria regarding the written draft is not surprising.  Abortion is an important political issue for both liberals and conservatives.  It is also a personal issue for voters.  Emotions run high when the abortion issue is front and center.

However, the leak, and the reactions to it, were completely avoidable.

Barack Obama was president for eight years.  Justice Ruth Bader Ginsburg had an opportunity to retire during Obama’s time in office.  In 2013, the first year of Obama’s second term, Ginsburg turned 80 years old.  She could have retired during the first few years of his second term, especially in 2013 and 2014, where the Democratic Party controlled the U.S. Senate.  Obama would have nominated a successor aligned Ginsburg’s political philosophy who the Senate would have easily confirmed.  It should be noted that Ginsburg had been battling cancer for about two decades.  In 1999, she diagnosed with colon cancer.  In 2009, she was diagnosed with pancreatic cancer.  In 2018, after Obama left office, her doctors discovered cancerous nodules on her lungs.  In 2020, Ginsburg had treatments for cancerous lesions on her liver.  She also had heart stent surgery in 2014.  Justice Ginsburg, given her age and her serious health issues, had good reasons to retire before 2016.

Because Justice Ginsburg chose to remain on the bench during the Obama years, she presented an opportunity for Obama’s successor, Donald Trump, a Republican, to nominate Judge Amy Coney Barrett of the U.S. Appeals Court for the Seventh Circuit to succeed her when she died in September 2020.

Assuming Justice Barrett differs significantly from Justice Ginsburg in judicial philosophy, staying on the Court instead of retiring during the Obama presidency places her legacy in jeopardy on not just abortion, but issues of race, healthcare, gender, and sexual orientation.  Liberals, however much they admire RBG, no doubt feel some sense of betrayal because of her refusal to step down years earlier.

The bottom line is that had Justice Ginsburg retired during Obama’s time in office, the leaked opinion would likely not have had five votes to make it the majority opinion.  Missed opportunity #4.

Apart from Ginsburg’s refusal to retire, the leak was avoidable in others way.

In 1990, George H.W. Bush had the opportunity to nominate to the Supreme Court Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, when Justice William Brennan retired.  Jones had been a judge on that court for five years and was 41 years old.  Bush ultimately chose Judge David Souter of the U.S. Court of Appeals for the First Circuit for the vacancy.  Bush nominated Souter because his friends U.S. Senator Warren Rudman and White House Chief of Staff John Sununu persuaded him to do so.  Senator Rudman represented New Hampshire in the Senate.  John Sununu was Governor of New Hampshire prior to joining the Bush Administration.  Souter was raised and spent much of his adult like in New Hampshire (he served as New Hampshire Attorney General and was an Associate Justice of the New Hampshire Supreme Court).  Bush apparently did recognize that there may have been a conflict of interest when Rudman and Sununu were lobbying on Souter’s behalf.  The Senate voted to confirm Souter.  Two year later Souter voted to uphold the central holding in Roe v. Wade (Roe) in Planned Parenthood v. Casey (Casey).  It is highly likely that Edith Jones, a known constitutionalist, would have voted to overturn Roe.  Missed opportunity #3.

In 1987, Ronald Reagan nominated Judge Anthony Kennedy of the U.S. Appeals Court for the Ninth Circuit to the U.S. Supreme Court to fill the vacancy created by the retiring Justice Lewis Powell.  Kennedy’s nomination came about because (1) the Senate rejected Judge Robert Bork’s nomination and (2) the withdrawal of the nomination of Judge Douglas Ginsburg.  Given the failed first two nominations, it is understandable that Reagan wanted a safer choice who he felt the Senate would find acceptable.  February 1988, the Senate voted to 97-0 to confirm Kennedy.  The safe choice does not necessarily mean a good choice for the Court or the country.  About four years later, voted to uphold the central holding in Roe in Casey.  Years later, Bork, in an interview, said that the Democratic-controlled Senate blocked his nomination because he would have been the fifth vote to overturn Roe.  Missed opportunity #2.

In 1981, Reagan nominated Judge Sandra Day O’Connor of Arizona Court of Appeals to the U.S. Supreme Court after Justice Potter Stewart announced his retirement.  Reagan pledged during the 1980 presidential campaign that he would nominate a woman to “one of the first Supreme Court vacancies” in his administration.  This was the first vacancy during his administration.

A graduate of Stanford Law School, where she was the classmate of future chief justice of the United States William Rehnquist, O’Connor had the educational pedigree for the job.  While she had a distinguished career in state government, serving in all three branches, O’Connor did not have much of a record on deciding federal constitutional questions.  It did not matter.  She exceeded the minimum qualifications to serve on the Court, and she was a woman.  This kind affirmative action when dealing with important occupations is often a recipe for disaster.  Sure enough, eleven years later, O’Connor voted to uphold the central holding in Roe.  Had Reagan nominated Bork, who had argued numerous cases before the Supreme Court during his time as solicitor general in the 1970s, to the Supreme Court, a Republican-controlled Senate would have confirmed him in 1981.  Missed opportunity #1.

When the Supreme Court did not overturn the central holding in Roe v. Wade – that abortion is a protected right under the U.S. Constitution – when it decided Planned Parenthood v. Casey, it deepened the polarization in the country.  Like Dred Scott v. Sandford (1857) deepened the polarization on the question of slavery, Casey did so on the abortion question.  Had the Court overruled Roe completely, as upsetting as it would have been to many Americans, the public was mentally prepared for it to happen.  After all, the two dissenting justices in Roe (Rehnquist and Byron White) were still on the Court in 1992, and Republicans Reagan and Bush filled five vacancies between them during their presidencies.  It should have been easy to get to five votes to outright reject Roe.  It did not happen.  As a result, those who believed that abortion is a fundamental right were emboldened, and those in the other camp felt like they were cheated (again) by the U.S. Supreme Court.

Because of Roe and Casey, the abortion issue has infected electoral politics and has made Supreme Court confirmation process needlessly contentious, if not downright nasty.  Bork, Justice Clarence Thomas, and Justice Brett Kavanaugh have been especially harmed, in large part, due to these decisions.

Strangely enough, the case involving the leaked opinion draft is not about abortion.  The issue at hand is the role of the federal government.  Since 1973, the federal government has been involved in the abortion issue.  Since the U.S. Constitution says nothing on the issue, abortion policy should be left to the states to regulate (or not regulate).  That was the fundamental mistake made in Roe.  The Court should not have taken up the case, much less decided as it did.  Without Roe or Casey, state legislatures would make laws regarding abortion.  Some states would have restrictive laws (such as Florida and Texas) and others would have no restrictions on abortion (such as Vermont and Oregon).  The laws would reflect the attitudes of the people of those states.  If an abortion is unavailable in one state, a woman can travel to a nearby state to have the procedure.  This is a key feature of federalism.

As for who leaked the draft, I suspect that the identity of person who did it is now known to Chief Justice Roberts and was probably known to him within a day of the leak.  There is an investigation at the Court.  The universe of possible suspects is small: the nine justices, their thirty-six law clerks, and a few support staff employees.  It could be any one of them, though it is difficult to believe that any of the justices or permanent Court staff would do this.  The likely culprit is a clerk who works in the chambers of one of the justices nominated by a Democratic president (Breyer, Sotomayor, or Kagan).  Given the technological safeguards at the Court, this breach would have been detected and would have identified the leaker.

In the 1990s, computer programmers around the world were busy coding to address the Year 2000 problem, also known as Y2K.  The issue was that dates represented in computer programs had the year stored as two digits (1972 would be stored as 72), making the year 2000 indistinguishable from the year 1900.  If the problem was not fixed, it could have brought down industries and institutions such as airlines, banks, and financial markets.  After societal anxiety about what would happen on January 1, 2000, the catastrophe, because of very hard work, was averted.  Turned out to be a nonevent. If the leaked opinion becomes the final majority opinion, where Roe and Casey are completely overturned, where abortion is declared not to be a constitutionally protected right, where abortion regulation is returned to the several states, this, too, after the initial yelling and screaming, will turn out to be a nonevent.

Today is Presidents Day.  It used to be known as Washington’s Birthday.  With the name change, we now honor all the men who occupied the office of president of the United States, instead of recognizing the nation’s first president only.  I don’t think the change in name represents progress.

We can take this occasion to examine the performance of the current occupant of the office.  During the 13 months of Joe Biden’s administration, we have witnessed the following:

• The crisis at the U.S.-Mexico border, with roughly 1.7 million migrants entering the country unlawfully.
• The disastrous troop withdrawal from Afghanistan, leaving behind hundreds of American civilians and military equipment.
• Reversing Trump-era travel ban, which will make America less safe
• Canceling of the Keystone XL Pipeline permit and paused oil and gas leasing in the Arctic National Wildlife Refuge, resulting in America not being energy independent.
• A federal executive order banning discrimination based on gender identity, which allows (1) males to participate in women’s sports, (2) males to shower in women’s locker rooms, and (3) males to be incarcerated in women’s prisons.
• Inflation, especially the 50% rise in gasoline prices.
• International instability, with Russia threatening Ukraine and China’s provocative military conduct directed at Taiwan.

And we have three more years to go.

The one who is happiest about this administration is the ghost of James Buchanan.  In Biden, Buchanan sees someone who will displace him as the worst U.S. president of all time.

Buchanan is almost always ranked at the bottom in presidential ranking surveys, normally in good company with Franklin Pierce and Andrew Johnson.

In twenty-three presidential ranking surveys, from 1948 through 2021¹, the top three are normally George Washington, Abraham Lincoln, and Franklin Roosevelt.  Lincoln is rank on top in the majority of surveys.

C-SPAN conducted a survey in 2021².  There again, the top three are Lincoln, Washington, and FDR.  Coming in at number four is Theodore Roosevelt, with Dwight Eisenhower securing the fifth spot.  The ranking of the top five is not terribly controversial or surprising even if some historians or political scientists might have others who should be considered among the greats.

What was surprising were those ranked at the bottom.  Actually, the bottom three were the usual Franklin Pierce, Andrew Johnson, James Buchanan, coming in at 42, 43, and 44, respectively.  The surprising addition to the rankings basement, ranked 41, is Donald Trump.  His addition was surprising to me given his accomplishments while in office.  During Trump’s time in office, we saw:

• A lowering of income taxes, particularly the corporate income tax rate, and a net reduction of federal regulations, which lead to a 50-year low in unemployment (3.5%) and significant increase wage growth (prior to the global pandemic).
• The defeating the Islamic State and killing ISIS leader Abu Bakr al-Baghdadi.
• The assassination of the Iranian top terrorism leader, Qasem Soleimani.
• The nominations and confirmations of 230 federal judges, including three Supreme Court justices.
• America become a net energy exporter
• America brokering Israeli peace with four nations (UAE, Bahrain, Sudan, and Morocco)

The C-SPAN survey ranked Trump 34 (of 44) in Economic Management and 43 (of 44) in International Relations.

Surprisingly, Barack Obama was number 10 (of 44) in the overall ranking.  He ranked 9 in Economic Management; 6 in Moral Authority; and 3 Pursue Equal Justice for All.

The 2021 C-SPAN survey is a sham.  The historians were clearly influenced by their own politics.

Even though we should not take the survey results seriously, there are some noteworthy trends.

As noted, Eisenhower came in at number 5; however, between 1962 and 2011, surveys had him hovering around 10.  With Thomas Jefferson, earlier surveys had him ranked between 2 and 5; recent surveys have him between 5 and 7.  Woodrow Wilson had a similar decline over time.  Andrew Jackson has seen a larger fall.  In the early surveys, he was normally ranked in the top 10; in the recent five surveys, he has generally declined from 16 to 21.  Ulysses S. Grant also has an interesting ranking history.  For the first 12 surveys, he was in the cellar with Pierce and Buchanan; however, since the 2005 survey, he has generally risen in the rankings, with him being ranked 20 (of 44) in the 2021 survey.

Since I have not personally spoken to any of the historians involved in these surveys, I cannot comment definitively on why the changes – some of them large – in the ranking of presidents.  However, the one issue that would explain these trends is race.

Eisenhower appears to be given more credit for proposing and signing the Civil Rights Act of 1957 and the Civil Rights Act of 1960.  Sending troops to Little Rock, Arkansas, to protect black students is viewed even more favorably in recent years.

Grant’s protection of the formally enslaved and his support and enforcement of the Fifteenth Amendment, guaranteeing the right of black Americans to vote, is better received in the early 21^st century compared to the middle 20^th.

Jefferson’s and Jackson’s views on slavery, and Wilson’s views on race hurt their images in the modern era compared to earlier times.  Jackson may even lose his image on the TWENTY in favor of former slave, Harriet Tubman.

It appears that, to some degree, the survey participants are influenced by increased public sensitivity surrounding racial matters, which we have seen in the past two decades.

Interestingly, George Washington, who was a slaveowner, has not seen any change in his rankings over time.  It is true that he provided for the freeing of his slaves upon his death, but he owned slaves for most of his life and did own over one hundred slaves when he died.  It seems, however, given his stature, that he is simply untouchable.  For now.

As the political left continues to reevaluate the morality of past leaders, it could be a matter of time that the Father of the Nation may fall out of favor with our leading historians.  Could be only a matter of a few more years of Washington battling Lincoln for who will be number one.

Could be only a matter of a few more decades that Washington will be on the ONE.

1. https://en.wikipedia.org/wiki/Historical_rankings_of_presidents_of_the_United_States#Scholar_survey_summary
2. https://www.c-span.org/presidentsurvey2021/?page=overall

Happy 2022!