Week 35: The Concurrence Gambit

BlakeSix-three. That's how badly the president lost this fight in June. So somebody tell me why five weeks later he's back signing executive orders like the Supreme Court never spoke.

MaxThat's the question right there.

BlakeI'm Blake.

MaxAnd I'm Max. Welcome back to the Nine Justices thread, week two of round two.

BlakeBecause this is round two. Trump versus Barber came down June thirtieth.

MaxSix-three, birthright citizenship stands.

BlakeAnd then on August sixth, the administration signs two new orders, one on birthright citizenship, one aimed at what they're calling birth tourism.

MaxFive weeks. That's it.

BlakeA national immigration form explainer laid the timeline out plainly. June thirtieth ruling, August sixth orders, five weeks apart.

MaxSo is that defiance or is that lawyers finding a door the ruling left open?

BlakeThat's the whole show today.

MaxAnd it's not an abstract question. If the theory holds, it changes who gets to call themselves American five years from now.

BlakeWhich is exactly why we're not just skimming the headlines this week. We're reading the actual documents.

MaxAll right, let's actually get into what these orders say because birthright citizenship, again, is not a headline, it's a strategy. Okay, so what do these two orders actually do? Not the vibes, the text.

BlakeRight, because that's the part everybody skipped to get to the hot takes.

MaxOgletree's rundown of the orders says one of them limits birthright citizenship in certain circumstances and the other's aimed at ending birth tourism. New vetting for non-immigrant travelers coming here to give birth.

BlakeTwo separate targets. One is about who gets citizenship, the other is about who gets in the door in the first place.

MaxRight. And that second one is doing a lot of quiet work. It's not touching the Fourteenth Amendment on paper. It's a visa and entry mechanism.

BlakeSo if you can't get a visa to fly here in your third trimester, the citizenship question never even comes up.

MaxExactly. Squeeze the pipeline instead of the amendment.

BlakeSneaky. I respect the design, even if I'm suspicious of the intent.

MaxAnd the birthright order itself, it's carving out categories. Kids born to people in specific unlawful or temporary circumstances. It's not a blanket ban, it's a list of exclusions.

BlakeA list somebody drew up hoping it survives a court that already ruled against the broad version.

MaxWhich brings me to the other thing this write-up flags. These orders build on the administration's prior efforts. This isn't a first swing.

BlakeIt's a redraft. Somebody went back to the earlier order, took the language a court gutted and tried to build around the hole.

MaxThat's the part that actually matters for real families too. A redraft still changes who has to prove what and prove it fast.

BlakeRight. It's not just theory for law professors. It's a hospital bracelet and a stack of paperwork for someone in the next few months.

MaxSo here's my actual question, and I want you to sit with it before you answer.

BlakeGo.

MaxIs this a real legal theory, something Built on exceptions the Justices actually left open? Or is it just the same losing argument wearing a nicer suit?

BlakeThe same argument in a nicer suit is still the same argument.

MaxMaybe, or maybe there's a seam in that opinion Nobody's talking about.

BlakeSee, that's what bugs me about how this got covered. Everyones arguing about the orders like they've read the opinion, and half of them haven't.

MaxYou think the coverage got the ruling wrong?

BlakeI think the coverage flattened it. A fractured opinion isn't one sentence you can quote and move on from.

MaxSo walk me through what actually got held instead of what CNN's chyron said it held.

BlakeThat's exactly it. We can't grade whether this is theory or theater until we know precisely what the court left on the table, not the summary everyone's repeating.

MaxThen let's go get it straight from the opinion. Right. So no more vibes. What did the majority actually say?

BlakeAn analysis on SCOTUSblog lays out the lineup clean. Roberts wrote the majority, and it's not a narrow squad. Sotomayor, Kagan, Jackson, Barrett all sign on.

MaxFour justices you'd expect, plus Barrett. That's the constitutional wing striking the order flat.

BlakeOn constitutional grounds. Yet not a technicality, not a paperwork problem. They said the order violates the Fourteenth Amendment itself.

MaxOkay, so where's the crack everyone's talking about?

BlakeKavanaugh.

MaxGo on.

BlakeSame SCOTUSblog piece. Kavanaugh doesn't join Roberts' opinion. He concurs in the judgment only, and he gets there on narrower statutory grounds.

MaxSo statutory, not constitutional?

BlakeStatutory. He agrees the order loses, but he's reading it through this immigration statute, not the amendment itself.

MaxSo he's voting with the winning side, but writing his own map to get there.

BlakeExactly. Six justices strike it down, but they didn't all walk the same road.

MaxAnd the other three?

BlakeThomas, Alito, Gorsuch dissent. They'd have upheld the original order outright.

MaxSo it's not six unified voices and three outliers, it's five one three.

BlakeFive one three. That's the real lineup.

MaxOkay, but does Kavanaugh writing separately actually open a door or is the administration just pointing at a crack in the sidewalk and calling it a driveway? That's the fight, right? A concurrence on judgment only doesn't bind anybody. It's not law the way the majority opinion is law.

BlakeBut it's still a sitting justice on a record saying that constitutional theory isn't the only way to get to yes.

MaxWhich is a real thing lawyers can build an argument around. Whether it's honest or it's spin depends on what they build.

BlakePractically though, what does concurring on the judgment only even bind future litigants to? Nothing, right?

MaxNot as precedent in the strict sense. It doesn't create binding law the way five votes on the same rationale would. But litigants absolutely cite it as persuasive authority, especially when it's the only opinion offering an alternative path to the same result.

BlakeSo a future plaintiff, or in this case, the government's own lawyers, can wave it around and say, "Look, one justice already got here a different way."

MaxWhich is exactly the kind of persuasive not binding distinction that lets both sides claim they're reading the opinion honestly.

BlakeConvenient that the one guy writing separately gave them the opening.

MaxWell, convenient or predictable. You write a narrow opinion, somebody's gonna stretch it.

BlakeFair. So we've got Roberts five on the constitutional floor, Kavanaugh standing off to the side with his own reasoning, and three dissenters who wanted the whole thing upheld.

MaxThat's the board.

BlakeThen it's not really a mystery what the administration's lawyers did this summer.

MaxNo.

BlakeThey didn't reread the majority. They reread Kavanaugh.

MaxProbably underlined him twice.

BlakeSo let's put the actual text of the new orders next to that and see where they're really standing.

MaxOkay, so I actually pulled the order text last night, and there's a phrase in there that jumps off the page.

BlakeWhich phrase?

MaxThe order quotes the court directly. It says the citizenship clause covers kids for whom no extraterritorial fiction applies. That's not paraphrased, Blake, that's lifted straight from the opinion.

BlakeWait, they're quoting the ruling that struck down their last order to justify the new one?

MaxRight into the preamble.

BlakeAnd relitigate? That's bold.

MaxAnd then it says it's identifying, quote, "non-exhaustively" categories of kids who fall outside the birthright rule.

BlakeNon-exhaustively. So it's not a list, it's an invitation to keep adding names to the list later.

MaxThat's how I read it, too.

BlakeWhat's actually on the list right now, though?

MaxWe covered the two orders already, exclusions and the birth tourism vetting. But there's chatter online going further than the order text actually does.

BlakeHow much further?

MaxI saw one post getting passed around a lot claiming the orders reach foreign government employees, surrogacy arrangements, even alien enemies language.

BlakeHold on, surrogacy? That's nowhere in the actual order.

MaxIt's not. That's the Internet doing what the Internet does with a legal document nobody's actually read. Shocking. But strip the exaggeration out, and you're left with a real question underneath it.

BlakeWhich is whether non-exhaustively categories is an honest reading of the exceptions or whether it's a nicer way of saying we're rewriting the ruling and calling it interpretation.

MaxBecause those are very different things.

BlakeVery different. One's lawyering, the other's just losing gracefully and pretending you didn't.

MaxI don't think it's nothing, though. The order isn't ignoring Barbara. It's trying to work inside language the court itself used.

BlakeBut why quote it at all, though? If you're going to relitigate, why hand the other side ammunition by putting the court's own words in the preamble?

MaxBecause it's a defensive move as much as an offensive one. If a challenge comes, the government wants a judge to see the order citing the exact same sentence the majority used so it looks like compliance instead of defiance on the page.

BlakeSo it's optics for the bench, not just optics for the base.

MaxRight. It's built to survive a skim. A clerk pulling the order alongside the opinion sees matching language before it sees the fight underneath it.

BlakeSure, but citing the court's words isn't the same as citing the court's holding. You can quote a sentence and still miss what it was doing there.

MaxFair. So which is it?

BlakeI don't think you find that answer in the order text at all.

MaxWhere do you find it?

BlakeHere's where it actually gets good because the answer isn't in the majority opinion at all. Hmm, so here's the piece nobody's tweeting about. Senator Jim Banks, he's already filed a bill.

MaxWait, an actual bill, not just an order?

BlakeA real bill, the Citizenship Act of 2026, and Fox News reports it's built explicitly on Kavanaugh's statutory concurrence and on the exceptions Wong Kim Ark already recognized. So he's not inventing new law. He's pointing at the crack that's already there. And Wong Kim Ark itself carved out exceptions long before any of this, children of foreign diplomats, that kind of thing. Banks is arguing invaders belong in that same bucket.

MaxWhich is a much narrower claim than birthright citizenship shouldn't exist. It's one category was never covered to begin with.

BlakeThat's the pitch. The bill frames children of what it calls invaders as outside birthright citizenship, and it leans on Congress's Article I power over naturalization.

MaxCongress writing the rule instead of the president ordering it.

BlakeRight, which is actually more honest in an executive order, legally speaking. Kavanaugh's whole point was that this is a statutory question Congress can answer.

MaxOkay, so give me the actual language. What does Banks say the bill does?

BlakeHis own press release says it would codify what he calls a long-standing exception to birthright citizenship for children born to foreign invaders.

MaxLong-standing is doing a lot of work in that sentence.

BlakeIt is. And then he goes further. He calls the Plyler ruling an unprecedented assault on American sovereignty.

MaxThat's not a lawyer talking. That's a rally line.

BlakeBoth things are true at once. The bill itself is a narrow, arguable read of Kavanaugh's opinion.

MaxBut the press release is written for cable news.

BlakeExactly. And that's what converges it for me. Nobody here is defying Roberts's majority.

MaxThey're building around the one part of the opinion that wasn't a full constitutional holding.

BlakeKavanaugh's concurrence was never a majority vote on the Fourteenth Amendment question. It was one justice saying, "I'd resolve this narrower." That's a gap, not a green light.

MaxSo legally, it's a real argument.

BlakeA real narrow argument. Whether it survives a court is a different question than whether it's theater.

MaxAnd calling it an assault on sovereignty is definitely not for the judges.

BlakeNo. That's for the base. It's for the fundraising email.

MaxSo it's not one or the other. It's stacked. Actual doctrine underneath, louder rhetoric on top.

BlakeThat's the split I keep landing on. Test the doctrine on its own. Don't let the rhetoric answer the legal question for you, and don't let the legal question launder the rhetoric either.

MaxBoth threads, same hinge. Kavanaugh.

BlakeSame hinge.

MaxOkay, so if that's the legal theory, let's see how it's already showing up inside the bureaucracy. It's not staying in a courtroom, Max. It's turning into an actual office with a name and a phone line. Wait, what office?

BlakeThe State Department created a birth tourism prevention task force after August sixth executive orders.

MaxWait, a whole task force?

BlakeThe State Department says it's reviewing visa holders worldwide, working with DHS to flag and revoke visas tied to birth tourism.

MaxWorldwide? So this isn't a border checkpoint thing. It's embassies and consulates everywhere pulling files.

BlakeRight. Anywhere a visa officer sits, they're supposed to be watching for this now.

MaxAnd the language they're using is pretty blunt.

BlakeThe State Department put out a line saying citizenship is not a commodity to be acquired.

MaxThat's a hell of a thing to put in a press release.

BlakeIt's a value statement dressed up as a bureaucratic memo.

MaxDoes that match what the actual order does, or is that just a sales pitch?

BlakeIt tracks. The August sixth birth tourism order puts new vetting requirements on non-American travelers coming into the country.

MaxSo before you even land, someone's asking why you're pregnant and traveling.

BlakeEssentially, yeah. And that order builds on the administration's earlier efforts. It's not a standalone idea somebody dreamed up in July.

MaxWhich means a consular officer in, say, Lagos or Manila now has discretion to just say no.

BlakeAnd no real public standard for what triggers the flag.

MaxThat's the part that should worry people who aren't even thinking about this politically. Visa discretion is huge, and it's basically invisible.

BlakeYou don't get a hearing when a visa officer decides you look suspicious.

MaxAnd that discretion cuts both ways. A legitimate tourist who happens to be pregnant could get flagged right alongside someone actually gaming the system.

BlakeWhich is the trade-off nobody in the press release is talking about.

MaxNo appeal, no transcript, no Kavanaugh concurrence to cite.

BlakeRight. Nobody's litigating your individual visa denial up to the Supreme Court.

MaxSo the theory that started as a narrow legal argument about the Fourteenth Amendment is now a screening question at a consular's desk.

BlakeThat's the institutional story people miss. This isn't just a court fight anymore. It's a task force with a mandate, and mandates outlast a single ruling.

MaxEven if a judge blocks the executive order next month, the task force doesn't necessarily go away.

BlakeIt keeps doing intake, keeps building a list, keeps talking to DHS.

MaxThat's a pretty quiet way to reshape policy, honestly. No headline, no vote, just a new office doing its job every day.

BlakeAnd most people will never hear the words Birth Tourism Prevention Task Force unless a reporter goes looking.

MaxWhich is kind of the point of building it inside the bureaucracy instead of just re-litigating in court.

BlakeCourts are loud and slow. Agencies are quiet and fast.

MaxAnd Congress isn't sitting this one out either. So while all that's moving through the State Department, there's a name buzzing around online, a member of Congress out there cheering this whole thing on.

BlakeWho?

MaxPosts are circulating attributing a statement to Representative Brandon Gill calling for Congress to swiftly pass the Citizenship Act.

BlakeThe Banks bill.

MaxThat one. The posts frame it as closing a loophole that's been exploited for years.

BlakeOkay, but where's that from? A floor speech? A press release?

MaxThat's the thing. I can't find it anywhere official. It's community posts, screenshots, people sharing it around, no verified statement attached.

BlakeSo we don't actually know if he said it that way or said it at all.

MaxRight. Could be real, could be paraphrased into something spicier than it was. I'm not gonna put words in his mouth off an unverified post.

BlakeWhich is honestly the whole shape of this fight right now, isn't it? Half of it's happening in filings and orders you can actually read. The other half is happening in screenshots.

MaxYeah, and people react to the screenshot like it's the ruling.

BlakeSo where does that leave us? Because we've walked through the orders, the lineup, the concurrence, the bill, the task force.

MaxWe already landed the verdict on that back at the Kavanaugh segment. Real narrow doctrine underneath, base-facing rhetoric on top. That part's settled.

BlakeRight. So let's not re-litigate our own segment. What's actually still open is what happens if Banks' bill gets a floor vote and somebody sues it.

MaxA statute is actually easier to challenge than an executive order in some ways. Congress passed it, so you can't argue the president exceeded his authority. The fight moves straight to whether Congress can define citizenship that narrowly under Section Five.

BlakeAnd that's a different court fight than Barbara was. Barbara was about the president acting alone. This would be about how far Congress's own power reaches.

MaxAnd whoever sues first will need actual standing, a family who's already had a passport application denied, not just an advocacy group filing on principle.

BlakeWhich takes time to develop. That's probably why nobody's raced to court yet. There's no plaintiff with a live case in hand.

MaxWhich means even if a judge tosses the bill, it's a slower, uglier fight than the one we just watched.

BlakeAnd the Gill posts we can't verify are the exact kind of thing that'll get louder the closer that vote gets.

MaxThat's basically the whole exercise for us tonight. Watch the document, not the screenshot.

BlakeAll right, let's bring this home. All right, here's the verdict, one line each. Go. The Kavanaugh path is a real doctrinal argument. Any judge who hears it has to actually engage the statutory question, not wave it off.

MaxAnd the rhetoric around it? Built for the base. Unprecedented assault on sovereignty isn't a legal brief, it's a rally line.

BlakeBoth things, same week.

MaxRight.

BlakeSo here's the ask. Pull up the actual August sixth order text yourself. Not a headline, not somebody's summary. Read the carve-outs in the actual document.

MaxAnd if your House member staked out a position on the Citizenship Act, call their office. Don't ask about politics. Ask them to explain the constitutional basis, Article I, the exceptions, the whole argument.

BlakeMake them say it out loud.

MaxGood luck getting a straight answer out of a staffer.

BlakeTry anyway.

MaxMy father-in-law asked me about this on dinner Sunday, and I didn't have a clean answer for him.

BlakeNow you do.

MaxNow I do.

BlakeThat's kind of the whole point of the show, honestly. Give people the vocabulary to ask a sharper question than, "Is this legal?"

MaxYeah, "Is this legal?" is the wrong first question anyway. The right one is, "What does the text actually say, and who gets to decide?"

BlakeShare this with somebody who still thinks this is simple. Subscribe. We're back Saturday.

MaxAnd go read the order before you argue about it.

BlakeThis is The Common Thread.