During the dark days before Heller, the rogue inferior courts, like the Ninth Circuit, came to the consensus that the phrase “a well regulated militia” was more indicative of who had the right to keep and bear arms than “the right of the people”.
The result of this piece of stupidity was that we, The People, could not challenge a law based on the Second Amendment. We had no standing.
The federal courts can only address active controversy for the people affected for which they can grant relief. You cannot go to the court and have them decide on which color is best. Nor can you challenge many government regulations, even if they are known to be bad. You have no bone in the fight. No skin in the fight.
The courts have long ruled that being a taxpayer does not grant you the right to challenge the government.
Heller says that the Second Amendment applies to the people
Yes, it does. The Court did a fantastic job of driving a spike through the heart of that bit of sophistry in Heller, but that doesn’t mean that the inferior courts haven’t found other things they can twist.
That idea, that the only “people” that had standing to make a Second Amendment challenge were the Militia. That private Militias are banned in many states. The only “legal” militia is the National Guard. The state controls the National Guard. The only people that can challenge state infringements on Second Amendment grounds was the state.
What Part of the Constitution Authorizes the Department of Education?
—When it Comes to Education, the Federal Government is in Charge of … Um, What? | Harvard Graduate School of Education, (last visited Nov. 13, 2024)
When the Supreme Court issued their opinion in —Brown V. Board of Education, 98 L. Ed. 2d 873 (1954) the Federal Government has used the 14th Amendment to justify prosecuting legally sanctioned discrimination.
The issue is that the Federal Government’s lust for power caused them to overstep “…to correct for persistently unequal access to resources…” —When it Comes to Education, the Federal Government is in Charge of … Um, What?, supra. This is all the justification they really needed to create the Department of Education.
You and I can look at this and agree that the Department of Education is not authorized under our Constitution. What can you, or I, do about it.
You would think we could run to the courts and file a lawsuit to stop the law. It doesn’t work that way.
—Justice Manual | 35. Standing to Sue | United States Department of Justice, (last visited Nov. 13, 2024)
You have not suffered a distinct and palpable injury. You would have paid taxes regardless of the law, and the only injury you, or I can point to is our tax dollars being miss-spent.
Most of the requirements that the DoE places on the state are stated in terms of getting or not getting money.
A few years ago, the school board was hearing a request to raise the price of school meals for students. There was no need to raise the price of the meals. The costs were still covered by what the students were paying.
They were required to raise prices to maintain compliance with a DoE “free lunches” program. Under the program, the schools are allowed to purchase food from the government at a significant savings.
If we had ditched the program, the cost of school meals would have gone up more than what the program required.
The board was forced to raise prices so that they could continue to offer lower priced school meals. You can’t make this stuff up.
Who has standing?
Let’s say that on day one, Trump uses Obama’s pen and phone methodology and shuts down the Department of Education. The DoE answers to the executive. He decides how the laws are enforced and carried out.
You are no longer having your money taken to give to failing schools, that will never succeed. You don’t get to keep any more of your money, that’s still going to be taken away.
But somebody is now being injured. All the people who are no longer getting the beautiful DoE money have been injured by the executive order.
This means that they have standing to file a lawsuit in federal court.
Which means the government can now argue that the DoE violates the Constitution. The plaintiffs (people wanting money from the federal government), have to argue how the Constitution authorizes the transfer of wealth to them.
Reading the plain text of the Constitution and the 14th Amendment, we can see that education is not mentioned in the Constitution, as amended.
At the first step, the plaintiffs lose. If we presume, without finding, that it is constitutionally authorized, the plaintiffs need to show a match to this Nation’s historical tradition of education regulations.
That fails as well.
In the question of Anchor Babies, the same is true. As soon as Trump says “no more anchor babies”, somebody will sue. Then it can go through the court system. During that process, they will find that the Supreme Court has already decided the question of Anchor Babies with —United States V. Wong Kim Ark, 169 U.S. 649 (1898)
—id. at 680–81
In other words, if the child is not subject to the jurisdiction of the United States, it is not a citizen of the United States. Welping your child on American soil does not make your child a citizen of the United States.
Life is going to get interesting, in a good way.
Comments
3 responses to “Are you Standing?”
Question: I understand that, legally speaking (Constitutionally speaking?), illegal immigrants having babies here does not automatically make the babies Americans (or will not… whatever). But what about a baby that is made between an American citizen and an illegal immigrant? What if mom is American and dad is from out of country? Is the child a citizen because of the single parent?
Allyson:
I did look into that in 2020 because it was claimed that Ted Cruz was not eligible to run for President because he was born in Canada. I located Title 8 USC §1401 (link: https://www.law.cornell.edu/uscode/text/8/1401)
What you are looking for appears to be in that section of USC. It seems to cover the situation you describe.
There is no reason why the parents cannot initiate the process for permanent residency immediately for a child. While that process is in action, the child is safe from deportation. (And, with the new phone app, the parents are basically safe from deportation as well. The right to remain is granted almost immediately after application.)
Being abundantly clear. I do not have any problems with folks who want to immigrate to the US legally. Just do it LEGALLY. Fill in the forms, and respect the laws of the land. It is not difficult to do.
Deport the rest.