Supreme Court BOMBSHELLS: Against Trump on Birthright Citizenship, WIN For Protecting Female Sports, with Mike Davis, Alan Dershowitz, and Kristen Waggoner | Ep. 1350

The Megyn Kelly Show

The Megyn Kelly Show covers two major Supreme Court rulings: a win for gender-specific sports protections and a controversial decision upholding birthright citizenship. Legal experts debate constitutional interpretation,

Key takeaways

• Supreme Court upheld state laws banning boys from girls' sports

Transcript preview

Welcome to the Megan Kelly Show, live on Serious XM channel 111 every weekday at New East. Hey everyone, I'm Megan Kelly. Welcome to the Megan Kelly show. We have big breaking news out of the US Supreme Court this morning as the High Court issues two major decisions on the last day of its term. I mean more than two technically, but we're going to focus on two right now. In a victory for Team Sanity, the justice is ruling that's ruling that's... states are permitted to keep boys out of girls sports with bands. We have 27 states that have banned boys from participating in girls sports. The question was, is that legal? The answer is yes. That doesn't save the girls in the remaining states, but it does allow states that are willing to protect young girls and women to do so. It is a watershed moment. It is an epic decision for girls and women's rights and the high court came down the right way on it with all six conservatives joining to say yes those states and those girls will be protected We're gonna have a breakdown of that decision later in the show including with someone who was a party to the litigation first though a setback to the president's agenda and a shockingly cowardly decision from the high court on birthright citizenship knew it was going to happen but we didn't know exactly how they'd get there and there was always at least the hope you know the possibility that they would do the right thing I mean what's essentially happened now is that anybody from China can come over here have a baby and that baby will be an American no matter what they can leave the day after the child is born the minute after the child is born and honestly there was a real question I like many people I first saw the challenge to this was long before President Trump's executive order. It was written by a legal scholar and you know saying this is not what the founders intended. I too thought what do you mean that this is sort of how we all grew up thinking that if you're born here you're a citizen and that's kind of the end of it. If you actually look at the history of that practice here in the United States and then what happened after the 14th amendment was passed, you see that's wrong. You find out that's actually not the 14th Amendment was treated, the way the founders understood this country would operate, and there was plenty of basis to strike down birthright tourism based on the particular phrasing of the 14th Amendment. You have to be born here and subject to the jurisdiction of the United States. And that is why President Trump issued this executive order. purporting to end birthright citizenship in the United States aimed especially at the children of illegal immigrants. Now he did say that if you're already here and you've been the beneficiary of this you can stay. He wasn't trying to create chaos for those who had already taken advantage of what they believed the 14th Amendment provided but he was saying on a go forward basis and now that's been overturned. Now his executive order is no good and he can't write another one. They didn't give him a clear road. map on how it could be done either. Five justices found that the E.O. violated the 14th Amendment. Chief Justice Roberts, Amy Coney Barrett, and the three Libs on the court. The Chief Justice writing in his majority opinion, quote, citizenship then and now was the right to have rights to freely participate in our political community. The framers of the 14th Amendment extended that promise to every free-born person in this land. We keep that promise today. Of course they were talking about freed slaves. That's why it sounds so weird, freeborn person in this land. Okay, Justice Kavanaugh got in there as well for good measure. They didn't need him because they had Barrett and they had Roberts with the three Libs, but he decided to join in just to say that Trump's executive order he thought had to be struck down because he thought it violated a federal statute. amended by Congress. So he's trying to show a roadmap, but it doesn't matter if you've got Coney Barrett and you've got Roberts and you've got the three Libs together. Forget Kavanaugh. His we can do this by congressional amendment idea will not fly. They did not think that it was consistent with the Constitution, with the 14th Amendment for Trump to issue an executive order like this. So as much as I'd love to look at that Kavanaugh line and say, okay. there's a way of doing this there isn't not as far as I read this a long opinion we'll have to go through it in more detail later the three conservatives of course the true the true conservatives on the court are Thomas and Alito Gorsuch has betrayed us before I'm not gonna lie I like him though but he issued Bosstock he authored Bosock which is the one that said the trans citizens have rights under title seven and they can't be hired on the basis of their being trans. I mean I get it like I can I could see the argument but let's face it it's a mental illness and you can say you're too unwell to work here. Honestly like Goldman Sachs now has to hire somebody who looks like Scott Wiener wants to show up like that with his weird little tie against his naked torso and probably nipple rings I don't like why. Why? who dissented on birthright citizenship. They were entirely persuaded by the administration and they raised several concerns about the majority opinion with Alito bringing up national security implications. Hello, this is 2026 America. People are misusing this provision and the legal ramifications of reading it the way these majority justices did. The Alito writing quote, suppose that a person's only connection to a mother who was present just long enough to give birth and then quickly returned to her native country. Suppose that country is a strategic adversary or enemy of the United States. Suppose the child never visited the United States while growing up and was inculcated with hatred of this country. According to the court, that person is a citizen of the United States. Plus, a bizarre circumstance happening right after the rulings came down with NPR. via Nina Totenberg, who I'm sorry but is the most holier than thou stuck up snob at NPR, who covered the high court for them for years, including when I covered it for Fox News. And you would think, you know, I was new, whatever, but unlike Nina Totenberg, I had practiced law for 10 years, so I knew what I was doing around a courthouse and I understood the law. But she treated me and anybody else or Savannah Guthrie was there when I was there when I was there when I was there when I was there when I was there was there was there was there there too. As like we were dirt on the bottom of her shoe because she thought she was all that in a biscuit. She was NPR Supreme Court correspondent. Again, like get back to me when you've actually made an argument on your feet in front of judges, Nina. Because Nina, while she is technically retired from that position, decided to blast out a report, NPR did with her name on it, her byline that Justice Alito was stepping down. That Justice Alito was stepping down. That Justice Alito was stepping down. retiring. And by the way, the headline was Justice Alito, the justice who brought us the reversal of Roe versus Wade is stepping down. Of course, MPR had to get its bias in, even on its now erroneous and retracted report. Within 10 minutes, MPR had to take it down. I spoke with my sources immediately upon seeing it, who said they were being told something very different by the justice. And the Supreme Court denied it almost immediately on the right. which is very rare for them and within 10 minutes she had to take it down. I mean this is just completely embarrassing. This is humiliating. You do not jump the gun on a Supreme Court retirement ever, ever. It's like saying the Pope is dead when he's not. All right, that's happened in the past too. So it's basically it's chaos this morning as the various news organizations tried to digest the import of these opinions. and get a hefty dose of fake news from Nina Totenberg and NPR in the process. Joining me now to react to all of this is Mike Davis, he's founder and president of the Article 3 project and also with us is Alan Dershowitz, Legal Legend and author of the new book Founding Fathers and one Jewish mother. Buy gold and put some silver in your pocket. I know what you're thinking everything is so expensive right now. How am I going to buy gold? Well pull your head out of the sand because we've got some for you. One thing you can control right now that does not cost you anything out of pocket is diversifying your retirement savings. Birch Gold Group can help you convert an old 401k from a previous employer or an IRA into a physical IRA in gold. Okay, you can actually have an IRA in whole or in part, something that can be a hedge against inflation. And listen to this, right now, Birch Gold is going to give you a special America 250, one ounce silver round for us for us. every $10,000 you purchase by July 10th. Think about this. 10 years ago an ounce of gold was about 1,200 bucks. Today it's around 4,500. Where will it be 10 years from now? Text MK to the number 9, 8, 8, 8,9, 8, 8, 8, 8, 8,000 to take advantage of free America 250 silver with qualifying purchase before July 10th. Again, text MK to the number 9, 8, 8. to have you back on a historic death. I always enjoy having conversations with you. One of these days we have to have a really serious conversation about Israel, the one issue that you and I may disagree on, and my new book is about the founding fathers of Israel in the United States. So let's agree to disagree about Israel and have a good conversation that will inform your viewers. Well I love to have you on and I know we we have evolving views on at least I do, but we'll see about a debate about a debate in any event. Okay, Mike, your reaction to those two decisions in particular, I guess we should start with birth rights citizenship. We're gonna get to the girls sports issue with Alliance defending freedom and one of the young girls involved in the litigation later. This is the most egregious lawless decision I've seen out of the Supreme Court in many, many years, maybe decades. The Chief Justice, John Roberts, along with Justice Amy Coney Barrett and the three liberals essentially scratched out half of the 14th Amendment's birthright citizenship provision, the subject to the jurisdiction piece, meaning if you have to be born in America number one and number two subject to the jurisdiction of the United States, number two which means allegiance to the United States. The Chief Justice, Justice Barrett, the three liberals scratched out that second piece and essentially held that anyone who comes to America and has a kid gets birthright citizenship, including Chinese birth tourists, terrorist, human traffickers, illegal aliens, people who are here on vacation, you name it, you come to America, you get birth, your child gets birthright citizenship, meaning they get the golden ticket. They get all the privileges, all the rights of citizenship. They get Social Security numbers. They get to vote. Maybe from Beijing, they can vote. They can vote. They can vote. mail in their votes after they go back to Beijing and never step foot in America again because they're American citizens. They can vote from Beijing, they can get Social Security, they can get the other welfare benefits of being a citizen. I don't think that the American people, we the sovereign citizens of America, we never agreed to this. We did not agree to this at our founding. We did not agree to this after the Civil War when we enacted the 14th Amendment. to overturn the dread-scot decision and give birthright citizenship to the children of freed slaves. We didn't agree to this in any subsequent Congress. We never agreed to this. This is the ultimate betrayal by the Supreme Court of the United States. Alan, your take. Well, I agree with much of what was said, but not all of it. This is a fascinating case because it poses the issue of textualism, which is something that liberals usually hate. precise text of the Constitution, no matter how stupid the Constitution might be, and not looking at the original intent or the meaning, etc. So this is a very interesting conflict between textualism and common sense. Look, let's start with birthright citizenship. It's the dumbest idea ever conceived of anybody. No smart person would ever put birthright citizenship in a constitution. Almost no other country in the world has it. All the examples that you've given and the others have given about people just being. born in the country and then leaving, of course you're right. Birthright citizenship is stupid, stupid, stupid. Also it was never intended to cover people from China who come here, give birth, and then go back and have no allegiance to the United States. That's all clear. The problem is the wording of the Constitution. The wording of the Constitution is dumb, but it's there. And so you have a textualist, and I can understand a real conservative textual our dear friend, Justice Scalia, who was saying, well, you know, I'm not empowered to change the Constitution. The Constitution says born in the United States, subject to the jurisdiction there. Yeah, maybe. So I would hope that A, the Constitution would be amended to make sense, unlikely. But B, I have more hope, Megan, than you do, in Justice Kavanaugh's dictum, because I think it's dictum. great. It's stick to mind. Explain that. I do think that if Congress were to have hearings were to bring people who would testify about people from China coming over here giving birth and then leaving and that they were then pass a statute saying people like that are not subject to the jurisdiction of the United States and therefore although they qualify if they are subject to the jurisdiction of the United States that's a legislative matter and legislatively we now rule under Article one of the Constitution. that people who have no allegiance to the country other than the accident of birth are not subject to the jurisdiction of the United States. So I still have hope that that could be done and I have absolute desire to see Congress try to do that. I'd be happy to testify, be happy to help them on this. I think it's really important for Congress to get into the Act because executive orders are generally subject to much, much greater scrutiny by the Supreme Court because they're not part of the Constitution. than our actions by Congress, which are Article 1 actions. So I think this is maybe the right textual decision, but the wrong common sense decision, and I think Congress can overrule it in effect. You know, go ahead, Mike. I was just going to say, if you take a step back before, you know, before we get down to the nitty gritty, I was persuaded by Alito's dissent, where he wrote, look, you know, the... that citizenship as used in the 14th Amendment means what we all think it means today is erroneous and he went back and he said if you if you look at how it was being used like elsewhere across the pond the great in Great Britain and so on it wasn't it you weren't just automatically granted all the rights of citizenship the way the three of us have it here in America and I mean I guess he wasn't able to persuade Roberts Barrett and to this effect but I do wonder because there's going to be serious blowback to the conservatives. I was going to give any blowback to the libbs on this. I think we're used to getting betrayed by Roberts but I mean Barrett she like I'm sick of Barrett I'm sick of this bullshit by Barrett I gotta be honest and maybe if we get some sort of a constitutional effort at limiting subject to the jurisdiction thereof as Alan saying as Kavanaugh telegraphed because it'll be immediately challenged it'll wind up right back in front of the Supreme Court off a Barrett, maybe not the Chief Justice, but we could definitely peel off the Cabinet. That's for Mike. Go ahead, Mike. Well, just really fast. I love what the professor is saying about the Kavanaugh approach to maybe try to fix this. I think the problem is that we already have five votes with the Chief Justice Barrett and the three liberal justices saying that this is now constitutionalized under the 14th Amendment. So you can't change it by statute. That's the problem. So it's going to have to be a constitutional amendment. I would just which requires 38 states. Just as a reminder, you're gonna have to get 38 states to agree. We can't agree on anything. Two thirds of both houses of Congress and 38 states. It's just not gonna happen. Number two that what Supreme Court said about legislation is pure dictum because we don't have such legislation. Let's assume Congress passes the following law saying all right we don't think they're subject to the jurisdiction if they're just born here. But if they are, start paying taxes, register for the army. Do all the things, do all the that citizens have to do. And if you don't do those, then we will make you not subject. We will say we will declare that you're not subject. Look, the reality is they're not subject to the jurisdiction of the United States. If a tourist comes to the United States and commits a crime here, of course, he's subject to that purpose. But you can't draft them, you can't make them pay taxes. And you can't make him, you can't convict him of treason, which is something only a citizen can't be convicted of convicted of So, you know, we can test this in a lot of ways. Congress hasn't yet done its job, and so I think the dictum, you're right, there was dictum, the Supreme Court says you can't tamper with this, is just dictum. And that's why Congress should fly in the face of the dictum, say no, they are not subject to the jurisdiction. Now let's go to court and maybe we can peel away one or two of the justices. Mike, how do we go so wrong with Amy Beret? as a constitutionalist, as a tax analyst, as an originalist, as the next Scalia. She had her former law clerks and friends sell her as the next Scalia. She sold herself as the next Scalia for whom she clerks. And I don't know, was was she lying through this audition process? Was it fraud by Amy Cody Barrett? Or did she get rattled when she got on the bench and during the Dobbs decision and the plaintiff the plaintiff? I'm sure that Scalia would have voted with the dissenters in this case. Are you so sure of that? I'm not so sure. I don't know what he would have done. He loved to write an opinion every two or three years saying, look, this violates my core principles. I think it's wrong. I think it's dumb. I think it's stupid. But we're bound by the text of the Constitution. So I don't know for absolute sure which way Scalia comes down on this. Well, let me tell you why I think Scalia would have ruled the constitutionalist. here, remember the Supreme Court previously said that American Indians were not subject to the jurisdiction of the United States under the 14th Amendment. So they did not get birthright citizenship. Congress gave them birthright citizenship in 1924 by statutes, right? Congress could have done the same thing here. If Congress wants to give birthright citizenship to 1.5 million Chinese birth tourists, Congress can do that. but it hasn't done that here and that's true in Puerto Rico by the way now I mean this is this is become a vanity project look I would say this the chief justice and justice Amy County Barrett have put their vanity over our country and it's unacceptable this is this is my husband's theory of how to and how not to select a Supreme Court justice Doug's not a lawyer but he's got good thoughts on this and his thought is no more attractive Supreme Court justice. His belief is that they get pulled into the Georgetown Party circuit and people appeal to their vanity in making them want to be loved by the you know professor circuit not the Alan Dershwin professor circuit that's a good circuit to be on but the Georgetown professor circuit and they need that approval they need those pets on the head and they turn and it's always the conservatives who turns You don't it doesn't go the other way Alan. You're a Supreme Court scholar why why do we have so many suitors and Amy Koney Barrett's and even like Kennedy and O'Connor would discuss They love to be like the swing vote where they would go over But it's so rarely happens the other way Well it's happened the other way once or twice Felix Frankfoot it went the other way He was put on the court as a Roosevelt liberal and became a moderate to conservative very conservative. So your husband is right that justices like to play to the professor it but it depends. Today professors are all hard left. I mean I think I'm the only Republican newly found Republican on the faculty maybe one or two others but the Harvard Law School faculty is you know 98% liberal Democrat and so things have changed. When I first went to the faculty in 1964 I would say it was 6040 conservative. to liberal. Now it's 98 to 2% liberal to conservative. Mm my gosh. All right so here's here's what Alito rights in his dissent. This is the losing side unfortunately but he says okay this is how the majority looks at things. He says that the majority their account of birthright citizenship is roughly as follows. After American independence the British rule of birthright subjecthood was modified in just one way to take account of Indians, as you point out, Mike, who lived under tribal governance. But otherwise the rule was transplanted intact to American soil. As modified, the rule was that a child born in this country is automatically an American citizen unless the child's born to tribal Indians or to a diplomat with immunity from legal process. During the period before the Civil War, the rule's status was firm. After the war, Congress codified the rule in the 14th amendment. And it goes on from there. Then Alito writes, every step of this story is incorrect. The Declaration of Independence repudiated the foundation on which the British rule was based. From 1776 until the eve of the Civil War, the status of the rule in this country was unsettled. There's no evidence establishing that the Constitution's references to citizens incorporated the British rule and until the eve of the Civil War, there was little litigation about the meaning of American citizenship. After the war, Congress finally adopted a constitutional Section 1 of the 14th Amendment, making certain persons, citizens at birth, but that provision differed substantially from the British rule. It specified that a person born here is not a citizen unless his allegiance to the United States is unimpaired by any obligations to a foreign power. And he, I mean, that's exactly right, that's what else does subject to the jurisdiction thereof mean. He's trying to say that there was another provision in there. And I will say, and I will say, One of the scholars on this issue has argued all along that the justices would not come down on the right side of this because they'd be afraid. They'd be afraid of being called racists, right? Because the 14th Amendment is more limited than some of its proponents are now arguing and that it would take incredible temerity to come down against it. And what do we see? We see the squishiest conservatives, might be? fly the coop right it's like did anybody ever doubt Alito and Thomas and gorset's showing some spine here too but let's face it Barrett Kavanaugh and Roberts are always the ones we're worried about well I would say this I'm my old boss justice Neil Gorsuch came out very good on all of these cases at the end of the term so I'm very happy proud quietly relieved I agree with you he got but he has been rock solid on these cases. I would say this if if Clarence Thomas who grew up in the segregated South and faced unbelievable Jim Crow discrimination can write that the 14th Amendment applied to the children of the freed slaves but the white liberals from Washington like John Roberts can't that that shows you who has maybe a more bold and fearless view of their job as a justice of the Supreme Court. They have lifetime tenure, they have pay protection for a reason. Their job is to follow the law. It's to make them less popular when they follow the law to, you know, and they follow the law and the majority doesn't like it. It's, I think with the Chief Justice and Justice Barrett, I think they're looking to become more popular. I think it's become a vanity project for them. One of my lawyer friends sent me this and I think she is spot on. The Chief Justice thought he was writing the next row versus or excuse me he was writing the next Brown versus Board of Education decision but he wrote the next row because this guy this Chief Justice got the law completely wrong like they did in row and constitutionalized it so it's going to take decades to fix. Let me let me that is how it feels. Can I just stand from a little bit?