John Roberts' Ruling Must Be Nullified

The Courts Do Not Get To Decide What Is And Is Not Constitutional

Readers already know what I think of Chief Justice John Roberts’ absurd ruling in Trump v Barbara¹: Not much.

There is no dispute to be had that Roberts’ ruling is contrary to the Constitution. There is thus no dispute to be had that Roberts ruling is void on its face.

When I say that Roberts’ ruling is void on its face I mean exactly that. Just as an act of Congress which violates the Constitution is automatically void, just as a Presidential order which violates the Constitution is automatically void, a Supreme Court ruling which violates the Constitution must also be automatically void.

This has to be true, or the Constitution is not the supreme law of the land.

John Roberts’ ruling on birthright citizenship is in every respect repugnant to the Constitution of the United States. By virtue of that same Constitution, John Roberts’ ruling must be regarded as null, void, and having no legal effect.

I am no radical for saying this. Quite the contrary, doctrines of nullification are no stranger to our nation’s political history. In the early days of the Republic, many understood them to be quite Constitutional.

Nullification is indeed Constitutional, and John Roberts going off the rails on the crazy train over birthright citizenship is merely the latest reason we need to bring that understanding back into our political discourse.

If the United States Constitution is to endure as a governing document, Roberts’ ruling must not stand. If the United States is to endure, Roberts’ ruling must be nullified.

Legal Scholars Agree: Roberts Ruling Is Wrong

I am far from alone in treating Roberts’ arrant nonsense with contemnation.

In his dissent², Justice Clarence Thomas repeatedly called Roberts’ out for his mis-statements and mischaracterizations of both the history and extant case law on birthright citizenship.

In his separate dissent³, Justice Samuel Alito called Roberts’ ruling “a serious mistake.”

NYU Law Professor Richard Epstein assessed Roberts’ ruling as “contrary to history.”

Claremont Institute Senior Fellow John Eastman panned Roberts’ ruling because it “answers the wrong question.”

I am quite clearly far from alone in being unimpressed by John Roberts’ 194 pages of jurisprudential slop.

Yet John Roberts wrote for the majority of the Supreme Court. His ruling is the Supreme Court’s ruling on the case. The Supreme Court has spoken, and has said in no uncertain terms that birthright citizenship is a Constitutional mandate.

Only the Supreme Court got it wrong. That is my conclusion, obviously. It is also Justice Thomas’ conclusion, Justice Alito’s conclusion, and the conclusion of a number of legal scholars as well.

At a minimum, a decent respect for our Constitution demands that we acknowledge the possibility (really the certainty) that the Supreme Court got it wrong.

The Court Is Not The Arbiter Of What Is Constitutional

In the modern understanding of Supreme Court rulings, the Court is charged with deciding what is and is not Constitutional.

As is so often the case with modern understandings of all things Constitution, this view is simply not true.

Nowhere in Article III of the Constitution will you find a grant of such plenary authority over the Constitution to the Supreme Court. Section 1 of Article III establishes that there will be Supreme Court, along with as many inferior courts as Congress deems necessary.

Section 2 defines the scope of federal court jursidiction:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party

Nowhere is the Court tasked with policing Constitutional construction.

How is it that the Court comes to rule which laws are unconstitutional? The answer to that is the process of “judicial review”, which was understood by the Founding Fathers to be inherently part of “the judicial Power.”

We know that to be the case because Alexander Hamilton, writing in Federalist 78⁴, clearly articulated that the courts would declare all unconstitutional acts void in arguing the essential independence of the judiciary:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

However, even Hamilton was aware that it is possible for judges to get the law wrong, and for judges to impose their own ideas upon the law rather than merely interpreting the law. For Hamilton, this was yet a further reason for giving judges lifetime appointments, so as to put them beyond all political influences.

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

Yet even within this argument, we see an important distinction emerge: in Hamilton’s apprehension of the judiciary, the task of declaring a law unconstitutional is a task of acknowledgement. A law is unconstitutional because it runs contrary to the manifest tenor of the Constitution. A law which cannot be reconciled to the Constitution is from the very outset unconstitutional, and never enjoys any operative effect.

Chief Justice John Marshall would reiterate this understanding of judicial review in Marbury v Madison⁵:

It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.

If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

As Marshall elucidated, the judicial Power is inherently one of interpretation. The role of the jurist is to adjudicate a body of facts in light of applicable law.

What both Hamilton and Marshall explicitly understood, however, is that interpreting the law was never an exercise of authority. At no point did Hamilton or Marshall ever construe the doctrines of judicial review to mean that the Supreme Court unilaterally or arbitrarily decided which laws were Constitutional and which laws were not. Rather, both men understood judicial review to be an exercise of identification, that if a particular statute could not be reconciled to the Constitution, the statute necessarily had to give way.

That the Constitution explicitly declares it is to be the supreme Law of the Land in Article VI confirms that this is how judicial review is meant to proceed.

What happens if a judge gets that law wrong?

Quis Custodiet Ipsos Custodes?

As the poet Juvenal quipped rather pithily, “quis custodiet ipsos custodes?”⁶—”who watches the watchers?”.

Alexander Hamilton, again writing in Federalist 78, was concerned with the courts watching the Congress. In part this was because he viewed the judiciary, being tasked solely with interpreting the law, as being the least dangerous branch of government.

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

In Hamilton’s view, the courts are always dependent on at least the Executive to implement whatever rulings they make. Without the cooperation of the other branches of government, the courts are powerless to convert their ruling into acts of governance.

Consequently, Hamilton never seriously addressed the possibility of the Supreme Court getting the law wrong. In his view, the inevitable tensions among the tripartite branches of the federal government were sufficient safeguard against judicial error.

Not every one of the Founding Fathers was so sanguine about the judicial Power. Indeed, Thomas Jefferson and James Madison regarded the capacity to declare laws unconstitutional as being a competency of the several states. It was from this apprehension of Constitutional law that we get the Kentucky⁷ and Virginia⁸ Resolutions of 1798.

The Kentucky and Virginia Resolutions were a response to the Alien and Sedition Acts of 1798—controversial laws restricting anti-government speech and the movements of foreign nationals within the United States passed in anticipation of war with France⁹. The state legislatures of both Kentucky and Virginia considered the laws to be an egregious and unconstitutional overreach by the federal government, and passed resolutions declaring the laws to be unconstitutional.

Thomas Jefferson, in his draft of the Kentucky Resolution, argued that, as the United States was a compact among the several states, and that no government could ever be the arbiter of its own actions, the several states were empowered to decide when the federal government had gone too far with its authority.

_Resolved_, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, -- delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

James Madison, in authoring the Virginia Resolution, not only argued that the states were empowered to call Constitutional balls and strikes, but had an affirmative duty to do exactly that:

That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it’s existence and the public happiness.

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Both resolutions passed their respective legislative bodies, although the resolutions gained little traction with other states.

While Jefferson’s rhetoric was more explicit in articulating a nullfication doctrine, common to both resolutions was the same apprehension of laws in conflict with the Constitution articulated by Alexander Hamilton in Federalist 78: A law which conflicted with the Constitution was from the outset operatively null and void.

As with the mechanics of judicial review, state nullification of unconstitutional federal law is not an arbitrary exercise of a state power, but an acknowledgement of a pre-existing conflict between a federal law and the United States Constitution, and that such conflict automatically renders the law null and void from the outset.

Chief Justice John Marshall would restate this same thesis in Marbury v Madison, in his conclusion that the Judiciary Act of 1789 was unconstitutional in its construction, and so denied William Marbury the means of redress he sought (and to which even John Marshall acknowledged he was entitled).

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

While Marshall aligned with the Hamiltonian view of the judicial Power in Federalist 78 by acknowledging judicial review of laws as inherent to the judicial Power, he continued the sense of Constitutional construction articulated by Hamilton and restated by Jefferson and Madison that within the judicial Power, judicial review was a declaratory exercise rather than an authoritative one (what Hamilton would distinguish as an exercise of “judgement” rather than “will”). What renders a law unconstitutional is its conflict with the Constitution, not any decision either by a state or by the courts.

During the Nullification Crisis of 1832, a Constitutional crisis arising from the controversial Tariff of 1828 (known in the southern states especially as the “Tariff of Abominations”)¹⁰, South Carolina’s favorite son (and Andrew Jackson’s Vice President) John Calhoun would resurrect the concept of state nullification in his 1828 treatise "South Carolina Exposition and Protest.”¹¹ While keeping the earlier apprehension of Constitutional construction that conflict with the Constitution invalidated legislation, Calhoun articulated a particular case where the judicial Power might prove inadequate in adjudicating such conflict:

The courts by their own decisions cannot look into the motives of legislators—they are obliged to take acts by their titles and professed objects, and if they be constitutional they cannot interpose their power, however grossly the acts may violate the constitution.

Calhoun’s proposition was that judicial review, while an acknowledged part of the judicial Power, did not invalidate state review. Calhoun argued specifically that the competency of a state to declare a law unconstitutional was of the same inferential nature as the competency of the courts.

It is objected in the first place, that the rights of the state, to interpose, rests on mere inference without any express provision in the constitution, and that it is not to be supposed if the constitution contemplated the exercise of a power of such high importance, that it would have been left to inference alone. In answer, the committee would ask those, who raise the objection, if the power of the Supreme Court to declare a law unconstitutional, is not among the very highest and most important, that can be exercised by any department of the government, and where they can find any express provision to justify its exercise? Like the power in question, it also rests on mere inference, but an inference so clear, that no express provision could render it more certain. The simple facts, that the Judges must decide according to Law, and that the Constitution is paramount to the Law, imposes a necessity on the Court to declare the latter void, whenever it comes into conflict with the former; so from the fact, that the sovereign power is divided, and that the states hold their portion in the same sovereign capacity with the general government, by like necessity, then is the right of judging of the infraction of their sovereignty, as well as of the remedy. The deduction in the one case is not clearer than the other; but if we refer to the nature of our constitution, the right of the state stands on stronger grounds than that of the court.

When the Court failed to identify an actual Constitutional conflict and appropriately declare the conflicting laws null and void, it fell to the states to take up that task and do what the Court either would not or could not do.

What this history demonstrates is that doctrines of nullification were mainstream political opinions at the founding of the Republic. Only later do we see a presumption that the Supreme Court is necessarily the final word in adjudicating a law’s constitutionality—a presumption for which there is zero basis within the text of the Constitution.

Who watches the Constitutional watchers? It is broadly understood that the Judiciary watches the Legislative and Executive Branches in this regard, but who watches the Judiciary?

The Supreme Court Can Be Wrong

What Calhoun stated bluntly is a reality we are seeing played out time and again in the modern era: The Supreme Court can be wrong about whether a law is Constitutional or no.

Even John Roberts concedes that the Supreme Court is sometimes wrong. He has little choice in this regard, as his judicial thesis in Trump v Barbara is predicated on the erroneous nature of the juridical monstrosity of Dred Scott v Sandford, which he aptly (and correctly) described as the Court overruling common law.

The Court had overruled the common law, but the people—eventually—would overrule the Court. It took more than a decade—and the addition of names such as Antietam, Gettysburg, and Chancellorsville to our national canon—but Douglass’s vision of “our common humanity” would be fulfilled.

Nor is Roberts alone in this. Justice Samuel Alito, in 2022’s Dobbs v Jackson¹², took the 1973 Supreme Court ruling in Roe v Wade to the proverbial woodshed, describing its reasoning as “ranging from the constitutionally irrelevant…to the plainly incorrect.”

Even the Supreme Court does not defend Supreme Court rulings as inviolable and beyond dispute. The Court has gotten it wrong in the past, and, we must presume, will continue to get it wrong in the future.

The unquestioned reality of Supreme Court imperfection in this regard begs an obvious question: what should the nation do when the Court is in error?

A moment’s thought is all that is needed to realize that acquiescence to an erroneous Court decision is not a viable option. When the Court gets it wrong, what the nation dare not do is remain silent about that error. As the late Justice Antonin Scalia noted in his concurrence in United States v Irvine¹³, “qui tacet, consentire videtur” (“He who remains silent seems to consent”) is established common law doctrine; if we are silent about John Roberts’ juridical execrescence we are consenting to Roberts imposing his false view of the Constitution and its Fourteenth Amendment.

As silence is not an option in the face of judicial error, speaking out becomes essential civic duty. My calling John Roberts’ unconstitutional ruling unconstitutional, and necessarily null, void, and of no operative effect, is no more than must be done.

Declarations Are Necessary But Insufficient

By itself, my statement will achieve little if any practical effect. I am one man and my platform far too small to steer public opinion to any discernible degree. Me pointing out that the Roberts ruling, being in conflict with the plain text of the Fourteenth Amendment and clearly unconstitutional, is necessarily null and void, is a necessary civic step but, on its own, woefully insufficient.

Yet the more people who do acknowledge that Roberts’ ruling is in violation of the Constitution, the more practical effect it can have. While likely still insufficient, the more who acknowledge that Roberts’ ruling is necessarily null and void, the better. Public opinion is very much a shaping force in public policy.

Several Republicans in Congress have already begun to push for a Constitutional Amendment to reverse Roberts’ unconstitutional ruling. Senator Rand Paul had even taken the pre-emptive step this past April of introducing just such an amendment, against the possibility of the Court ruling erroneously as it has. Building public opinion against Roberts’ unconstitutional view of birthright citizenship can only help strengthen such efforts. Given the Sisyphean task of getting any Constitutional Amendment through the Congress and completely ratified, such efforts need all the support they can get.

There are more controversial steps some can take which may prompt a quicker resolution. President Trump could take the unprecedented step of making a Presidential Proclamation stating that John Roberts’ ruling is unconstitutional and therefore void.

That has never been done before, which means we cannot predict with certainty how such a move would play out either among the electorate, within Congress, or before the Supreme Court.

What we can predict is that such a move would force every political actor in Washington to one side or the other. No Congressman, no Senator, no jurist would have the luxury of remaining neutral or silent. They would either have to declare for President Trump’s view of the matter, or John Roberts. Given that several members of both Houses of Congress have already expressed opposition to Roberts’ view of the Fourteenth Amendment, just the nature of politics in the information age will compel at least some of them to support Trump in such a maneuver. They might not like it, and most may not like Donald Trump, but it would be difficult to repudiate Trump without repudiating their own positions on birthright citizenship.

Similarly, state legislatures might reawaken and reassert state power by passing resolutions calling the Roberts ruling unconstitutional, null, and void. We have not seen this done since South Carolina’s Ordinance of Nullification in 1832¹⁴, during the aforementioned Nullification Crisis.

A slew of states passing a similar resolution nullifying the Roberts ruling would produce a new nullification crisis, but would that not be the point? States calling out as erroneous a Supreme Court ruling would be in every respect a Constitutional crisis (neither the South Carolina Ordinance of Nullification nor the earlier Kentucky and Virginia Resolutions were ever adjudicated as to their Constitutionality), but surely it will take a Constitutional crisis to achieve a Constitutional correction.

One thing is certain: State resolutions nullifying Roberts’ ruling are not at all likely to trigger the emphatic pushback South Carolina received in 1832, when Andrew Jackson threatened to respond with military force if the state did not back down¹⁵. Under the circumstances, we could anticipate President Trump welcoming such state action, which would only further heighten Constitutional tensions.

If a Presidential Proclamation would catalyze a Constitutional crisis over birthright citizenship, state resolutions against the Roberts’ ruling are likely only slightly less explosive. That they would be highly controversial is perhaps the best argument for enacting them.

States Still Matter

There is a prevailing school of thought in American jurisprudence that diminishes the role of the states in the Constitutional system. While Jefferson and Madison viewed the Constitution as a compact among the several states, early Supreme Court decisions such as McCulloch v Maryland¹⁶ rejected that view, with Chief Justice Marshall arguing the Constitution is an expression of the will of the people.

From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is “ordained and established” in the name of the people, and is declared to be ordained, “in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.”

Justice Joseph Story, in Martin v Hunter’s Lessee¹⁷, similarly panned the role of the states in the formation of the Union.

The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by “the people of the United States.” There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary, to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority.

However, what this formulation overlooks is that state governments are themselves an expression of the same American people who ordained and established the Constitution of the United States.

We only have to review the preambles of state constitutions such as that of the Commonwealth of Massachusetts¹⁸.

We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.

The presumption necessarily must be that, when a state government speaks, it is speaking on behalf of the people of that state, who are also people of the United States. If a state government takes the Supreme Court to task for a ruling, it is in effect saying “that is not the Constitutional compact our citizens have made.” If the people of a state wish to convey that message to the Court and to the country, it is fitting the state government stand as the messenger.

Earlier I said that, while Marshall was correct that the role of the courts is to say what the law is, it is not the role of the courts to say what the law is not. Permit me to elaborate further: The courts, through the judicial power, resolve to reconcile all government acts (particularly acts of the legislature) to the Constitution, declaring all irreconcilable acts unconstitutional. To say what the law is, the courts must necessarily eject from adjudication all such unconstitutional laws.

It is not the role of the courts to say whether a law pushes the compact among the people of the United States that is the operative agreement codified by the United States Constitution beyond the boundaries to which the people have agreed. The people necessarily retain that competency, and the Constitution even alludes to their retaining that competency through the Ninth and Tenth Amendments, reserving all unenumerated rights and powers to the people or the states, respectively.

If the courts, finding no irreconcilable conflict, declare a law constitutional which pushes the compact of We The People beyond boundaries acceptable to We The People, it is the right and duty of We The People to push back.

The several states are no less an expression of the will of the American people than is the government of the United States. “We The People” are the final authority within the several states just as we are within the United States. Our consent to be governed is as applicable to state government as it is to the national government. If a state challenges the national government, that is no more than the people of the state clarifying the terms of their continuation of the Constitutional compact that is the United States.

States still matter especially when Constitutional questions arise. State legislatures are still a vehicle for the people of the several states to make their wishes known.

State repudiation of the Roberts’ ruling would be substantive and absolutely could not be ignored. That alone makes state action appealing: state action will compel national reaction, which is exactly what is needed to correct the gross error of the Roberts ruling.

The Battle Cannot Be Avoided

While such obviously combative measures as Presidential Proclamations and state resolutions denouncing the Roberts ruling as an unconstitutional monstrosity are surely and reflexively unappealing to most people, they are in all probability unavoidable.

John Roberts setting aside the Constitution to impose his own views on birthright citizenship—to do the very thing Alexander Hamilton believed could not happen in an independent judiciary—is but the latest in a growing train of judicial abuses and usurpations.

Roberts himself has contributed before to this train, with his incomprehensible ruling on President Trump’s “Liberation Day” tariffs earlier this year.

Late last month U.S. District Judge Denise Casper peremptorily overturned President Trump’s election security Executive Order. Surely “We The People” are entitled to have the utmost protections afforded to our elections, that we may have confidence in their outcome. Too often we have reason to suspect fraud and malfeasance, yet this one judge arrogated to herself the authority to dismiss all such concerns.

District Judge Paul Friedman has made the extraordinary ruling that the Pentagon is not allowed to mandate escort-only access policies within the Pentagon. Those running the nexus of this nation’s security are being told to allow journalists free run of the building, national security be damned.

Another District Judge, John McConnell, Jr., has told the US Citizenship and Immigration Service it must continue approving asylum claims, even as evidences of rampant abuses of such claims appear repeatedly even in the corporate media.

Nor can we overlook the execrable Judge James Boasberg, who has thumbed his judicial nose at President Trump so many times that at least one senator, Eric Schmitt of Missouri, has called for his impeachment.

The prospect of impeaching several federal judges who have seemed hell-bent on thwarting President Trump at every turn emerged very early last year. Even then, there was considerable evidence that several judges were (and are) exercising a most un-Hamiltonian “will” rather than the “judgement” which is their Constitutional obligation.

In the tariff case earlier this year, Justice Neil Gorsuch used his concurrence to take his colleagues on the Court to task for subjecting President Trump to a different judicial standard than President Biden¹⁹.

Unpack that last claim first. My concurring colleagues contend that, as a matter of “straight-up statutory construction,” IEEPA does not grant the President the power to impose tariffs. Post, at 7. In doing so, they make thoughtful points about the statute’s text and context. But their approach today is difficult to square with how they have interpreted other statutes. Dissenting in past major questions cases, they have argued that broad statutory language granting powers to executive officials should be read for all it is worth. Yet, now, when it comes to IEEPA’s similarly broad language granting powers to the President, they take a more constrained approach.

If the tariff case was decided on the basis of anti-Trump animus, as Justice Gorsuch clearly believes, can we be certain Trump v Barbara was not motivated by similar political considerations? No, we cannot.

“Because Trump” is a statement of politics, not a statement of law.

Yet “because Trump” has been an increasingly obvious factor in many judicial rulings. Many are ultimately overturned by the appellate courts, but that has not dissuaded judges from arbitrarily seeking to impose their own will on the law, and for no other reason than Donald Trump is a President they personally despise.

The courts, as envisioned by Alexander Hamilton and as championed by John Marshall, are meant to be wholly neutral adjudicators of facts in light of applicable law. The courts are entrusted with the task of calling Constitutional balls and strikes because they are presumed to be outside the political fray. Judges are given lifetime appointments specifically to place them outside the political fray.

The courts are demonstrably no longer outside the political fray. With this latest juridical aberration, John Roberts has shown once again that the Chief Justice of the United States is not outside the political fray.

As the courts are not outside the political fray, they are by definition not articulating what the law is, but what they believe the law should be. They are by definition not wholly neutral adjudicators of facts in light of applicable law. They are political entities pursuing political agendas.

When judges pursue political agendas from the bench, justice has left the courtroom entirely.

Political rulings by politicized justices must not be allowed to stand, because if they stand the Republic will fall. Some might say it is already falling—and they might be right.

If we do not nullify Roberts’ insane ruling on birthright citizenship, we might avoid Constitutional crisis for a while longer. We will not avoid it for much longer, however, because the growing roster of rogue judges making indefensible rulings will bring us to a Constitutional crisis by their perverse lawlessness no matter how much we try to avoid it.

We The People must nullify John Roberts’ unconstitutional ruling on birthright citizenship, for the sake of the very Constitution on which John Roberts has clearly turned his back.

1. Trump v. Barbara, 609 U.S. ___ (2026)

2. Trump v. Barbara, 609 U.S. ___ (2026) (Thomas, J., dissenting)

3. Trump v. Barbara, 609 U.S. ___ (2026) (Alito, J., dissenting)

4. Hamilton, A. The Avalon Project : Federalist No 78. 28 May 1788, https://avalon.law.yale.edu/18th_century/fed78.asp.

5. Marbury v. Madison, 5 U.S. 137 (1803)

6. Juvenal. “Satires: Satire VI.” The Latin Library, https://www.thelatinlibrary.com/juvenal/6.shtml. Archived at https://archive.ph/Wn1of

7. The Avalon Project. “Draft of the Kentucky Resolutions”, Avalon Project. 2008. https://avalon.law.yale.edu/18th_century/jeffken.asp.

8. The Avalon Project. “Virginia Resolution - Alien and Sedition Acts”, Avalon Project. 2008. https://avalon.law.yale.edu/18th_century/virres.asp.

9. National Archives. Alien and Sedition Acts. 6 July 1798, https://www.archives.gov/milestone-documents/alien-and-sedition-acts.

10. Julie Silverbrook, iCivics. “The Nullification Crisis”. https://billofrightsinstitute.org/essays/the-nullification-crisis/

11. Calhoun, J. C. South Carolina Exposition and Protest. 19 Dec. 1828, https://dc.statelibrary.sc.gov/entities/publication/dd721165-27a6-447a-942b-df06f12e45ea.

12. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022)

13. United States v. Irvine, 511 U.S. 224 (1994)

14. The Avalon Project. “South Carolina Ordinance of Nullification, November 24, 1832”, Avalon Project. 2008. https://avalon.law.yale.edu/19th_century/ordnull.asp

15. The Avalon Project. “President Jackson’s Proclamation Regarding Nullification, December 10, 1832”, Avalon Project. 2008. https://avalon.law.yale.edu/19th_century/jack01.asp

16. McCulloch v. Maryland, 17 U.S. 316 (1819)

17. Martin v. Hunter’s Lessee, 14 U.S. 304 (1816)

18. Commonwealth of Massachusetts. Constitution of the Commonwealth Of Massachusetts. 1780, https://malegislature.gov/Laws/Constitution.

19. Learning Resources, Inc. v. Trump, 607 U.S. ___ (2026) (Gorsuch, J, concurring)