Columbia Standard

U.S. Senate Democratic Whip Dick Durbin (D-IL), the Ranking Member of the Senate Judiciary Committee, participated in a hearing titled “Rule by District Judges II: Exploring Legislative Solutions to the Bipartisan Problem of Universal Injunctions.” During the session, Durbin questioned several witnesses on significant legal issues.

Among the witnesses, Samuel Bray, a law professor at the University of Notre Dame Law School, was asked about the issue of birthright citizenship. Referring to President Trump's executive order this year, an appointee judge labeled it unconstitutional. Durbin inquired, “One judge, a Ronald Reagan appointee, said that efforts by the Administration are blatantly unconstitutional. If you accept the normal process which you described to us, how should that case (birthright citizenship) be handled if we’ve done away with the universal application of decisions?”

Bray explained that the judiciary is designed to handle such cases and affirmed that “courts are supposed to work. The courts are going to decide the cases. In every single one, the courts will say there’s birthright citizenship under the Constitution [and] that [there] will not actually be a disagreement between the circuit courts and there won’t even need to be a decision from the Supreme Court.”

Durbin continued, pondering an alternative scenario where a federal judge sided with the President. He questioned, “But assume the alternative—that there is a federal judge in some state who says, ‘I think the President is right. I believe birthright citizenship is unconstitutional.’ So you have a case in controversary, and it affects only the cases filed in that [circuit]?”

Bray noted that a divided decision would reach the Supreme Court, emphasizing that “just because one branch goes beyond its constitutional bounds, doesn’t mean the judiciary should go beyond its [constitutional bounds].”

Durbin's inquiry extended to the personal repercussions of the executive order concerning individuals such as pregnant women. He sought perspectives from Bray and Stephen Vladeck, a Georgetown University Law Center law professor. Vladeck highlighted potential human costs, remarking, “I think it’s worth underscoring the human consequences… because if it takes three years for that circuit split to get to the Supreme Court, you’re going to have three years where, in large parts of the country, children born to undocumented parents will not be citizens. Some of those children could be subjected to removal by the United States on the ground that they are not citizens.”

Durbin shifted focus to Jesse Panuccio from Boies Schiller Flexner LLP, probing President Trump’s recent executive orders targeting law firms. “What is the impact of those executive orders on the targeted firms?” Durbin asked. Panuccio suggested asking the affected firms directly.

Durbin pressed further regarding the implications for the broader legal community. Panuccio maintained that he was not invited to testify on that topic. When Durbin posed the same question to Vladeck, he warned that threats against law firms criticizing the Administration could jeopardize the separation of powers.