Tag Archives: Bloomberg Law

Birthright, Borders, And The U.S. Constitution

In the July 11, 2025 episode of Bloomberg Law’s Weekend Law podcast, the spotlight turned to the Supreme Court and one of the most urgent constitutional questions of the present era: can the federal government deny citizenship to children born in the United States based solely on their parents’ immigration status?

At the center of the discussion was a new executive order issued by the Trump administration. The order aims to withhold automatic citizenship from children born to undocumented immigrants. In response, a federal judge in New Hampshire has not only issued a temporary nationwide block on the order but also certified a class-action lawsuit that could have sweeping implications.

This development, as legal analyst and former DOJ official Leon Fresco explained, is not merely procedural—it is strategic. The case, still in its early stages, may force the Supreme Court to revisit the meaning of the Fourteenth Amendment’s Citizenship Clause.


Legal Strategy: Class Action as Constitutional Tool

Fresco’s key insight concerned how litigants are adapting to recent changes in judicial thinking. After the Supreme Court expressed skepticism toward broad nationwide injunctions, many believed such tools were effectively dead. But Fresco pointed out that class-action certification remains a viable, and perhaps more precise, alternative.

The New Hampshire judge’s ruling created a nationwide class of plaintiffs: all children born on or after February 20, 2025, to parents who are either unlawfully present or not U.S. citizens or lawful permanent residents. The judge carefully excluded parents from the class, narrowing the focus to the children’s citizenship claims. This move strengthens the class’s legal position, emphasizing a uniform constitutional harm.

Fresco characterized this approach as both narrow in structure and expansive in effect. By building the case around a specific constitutional injury—the denial of citizenship by birth—the lawsuit avoids the kinds of inconsistencies that often weaken broader claims.


The Constitutional Question: What Does “Jurisdiction” Mean?

At the heart of the dispute lies the interpretation of the Citizenship Clause of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

For over a century, the courts have understood this to include virtually everyone born on U.S. soil, with only narrow exceptions. The Trump administration’s order proposes a reinterpretation—arguing that undocumented immigrants and their children are not “subject to the jurisdiction” of the United States in the full constitutional sense.

This argument is novel, but not entirely new. Versions of it have circulated in fringe legal circles for years. What is new is the attempt to enforce this interpretation through executive power. If allowed to stand, it would mark a major departure from long-established constitutional norms.


Tactical Delay: The Risk of a Judicial “Stay”

Fresco raised a more immediate concern: that the Supreme Court may avoid ruling on the merits of the case altogether—at least for now. The Court, he warned, might grant a temporary stay that would allow the executive order to take effect while the lawsuit works its way through the lower courts.

This would mirror a pattern seen in other immigration cases, such as those involving Temporary Protected Status and humanitarian parole, where short procedural rulings allowed sweeping policy shifts without a full constitutional review.

The danger of such a stay is not theoretical. If the executive order goes into effect, children born under it would enter legal limbo. Denied citizenship, they would lack basic documents and protections. Challenging their status later could take years—possibly decades. In this way, even a temporary policy can create permanent consequences.


The Role of the Court: Principle or Procedure?

A central theme of the podcast segment was the evolving role of the judiciary in overseeing executive actions. Fresco questioned how the Court could reject a class-action lawsuit like this one without also undermining the logic that allows nationwide relief in other types of cases—such as defective products that cause uniform harm across the country.

If the courts are willing to permit class certification for consumer safety, why would they deny it in a case concerning citizenship—a matter of constitutional identity?

Fresco’s analogy was sharp: the law allows national class actions over faulty cribs or pharmaceuticals; why not over a birthright denied?

His point revealed the tension between procedural restraint and constitutional responsibility. If the Court is serious about limiting nationwide injunctions, it must offer a consistent, principled rationale for where it draws the line.


The Political Climate: Avoidance Through Silence

Toward the end of the discussion, Fresco referenced former Attorney General Alberto Gonzalez, who has speculated that the Supreme Court may simply lack the votes to strike down the executive order directly. That possibility may explain the Court’s hesitancy to take up the issue.

Justice Neil Gorsuch’s past remarks—asking how the Court might “get to the merits fast”—suggest at least some justices recognize the urgency. But urgency does not always lead to clarity. If the Court allows the order to take effect temporarily, and then delays review, it could set in motion changes that are difficult to reverse.

In effect, the Court would be allowing the executive branch to reshape constitutional practice through interim decisions. That prospect, Fresco warned, is not only legally unstable but socially volatile.


The Stakes: Citizenship as Constitutional Reality

Ultimately, what this case asks is not only a legal question but a civic one: Is citizenship a stable constitutional right, or can it be redefined by policy?

The class-action strategy now moving through the courts offers one possible defense: a method of forcing judicial engagement by focusing on clear constitutional harm and avoiding broad, unwieldy claims. It is, in Fresco’s words, an effort to meet the Court on its own procedural terms.

Yet the deeper conflict remains. The very idea of birthright citizenship—once considered legally untouchable—is now on trial. Whether the courts decide quickly or delay, the consequences will be lasting.


Conclusion: The Constitution on the Line

The Bloomberg Law discussion offered more than a legal update. It revealed how quickly constitutional assumptions can be unsettled—and how creative legal strategies are now being used to hold the line.

The New Hampshire ruling, and the class it created, represent a new phase in this fight. Narrow in scope but vast in significance, the lawsuit calls on the judiciary to answer directly: Is a child born on U.S. soil a citizen, or not?

In that answer lies the future of constitutional meaning—and the measure of whether the law remains anchored to principle, or drifts with the political tide.

THIS ESSAY AND REVIEW WAS WRITTEN BY AI AND EDITED BY INTELLICUREAN

REVIEW: “Judgment Calls – From Diddy’s Acquittal To The Supreme Court’s Shift”

THE FOLLOWING IS AN “AI REVIEW” OF THE JULY 3 EPISODE OF “BLOOMBERG LAW WITH JUNE GRASSO” PODCAST TRANSCRIPT:

In the dimly lit chambers of American justice, two parallel stories unfolded this term—one involving the cultural phenomenon of Sean “Diddy” Combs, the other the ideological recalibration of the United States Supreme Court. Each, in its own way, exposed the tensions inherent in a legal system grappling with the competing imperatives of moral condemnation, procedural fairness, and the inexorable gravitational pull of politics.

In federal court, Combs emerged, if not unscathed, then improbably triumphant. After six weeks of graphic testimony and the steady drip of lurid detail, jurors acquitted him of the most sensational accusations: racketeering conspiracy and sex trafficking, crimes that, had they stuck, would almost certainly have resulted in a life sentence. Instead, he was convicted only on two counts of transporting sex workers across state lines to participate in what prosecutors termed “freak-off parties.” In the pantheon of celebrity trials, this outcome was remarkable not merely for the verdict itself but for the rhetorical overreach that defined the government’s case.

Robert Mintz, a former federal prosecutor turned defense attorney, spoke to the case’s cautionary lesson about prosecutorial ambition. RICO—the Racketeer Influenced and Corrupt Organizations Act—was never an intuitive fit for Combs, a music mogul whose business dealings, however flamboyant, bore little resemblance to the mafia syndicates the statute was designed to dismantle. In the final analysis, jurors appeared unconvinced that the machinery of Combs’s empire—record labels, promotional companies, an entourage that blurred the line between personal and professional—was itself the instrument of a criminal conspiracy. They were similarly unconvinced that the two women at the heart of the government’s sex trafficking charges had been coerced rather than entangled in a toxic, if mutually complicit, set of relationships.

Perhaps more striking still was the defense’s strategy: they called no witnesses. Rather than counter the government’s narrative with competing testimony, Combs’s lawyers focused their energy on cross-examination, unspooling the contradictions and ambivalences embedded in the prosecution’s evidence. Here, too, lay a broader truth about modern criminal justice. The power to define the contours of the case—the charges themselves—can be as determinative as the evidence marshaled to prove them. When the government chooses to depict a defendant as the capo di tutti capi of an illicit empire, it must persuade a jury not only of wrongdoing but of a sweeping criminality that often strains credulity. When that narrative collapses, as it did here, the defense is left with the simpler task of pointing out the seams.

But Combs’s legal jeopardy is not yet at an end. Though acquitted of the most serious charges, he faces up to twenty years in prison on the counts that remain, even if the federal sentencing guidelines suggest a considerably lower range. The presiding judge, troubled by videotaped evidence of Combs assaulting one of the alleged victims, declined to release him pending sentencing—a reminder that in federal court, the most powerful voice is not the jury’s but the judge’s. It is not inconceivable that the final chapter of this saga will be harsher than the defense’s celebration suggested.

If Combs’s courtroom drama offered a microcosm of prosecutorial overreach, the Supreme Court’s term showcased a more profound shift: a conservative supermajority willing to reconfigure the balance of power between the judiciary and the executive—and, by extension, between individuals and the state. In conversation with constitutional law scholar Michael Dorf, host June Grasso illuminated the breadth of these changes. Over the past year, the Court issued a series of rulings that, taken together, represent a quiet revolution in the way the federal courts interact with presidential authority.

At the heart of this transformation was the Court’s decision to curtail nationwide injunctions—sweeping orders issued by district judges to block federal policies across the entire country. For decades, these injunctions served as a vital mechanism by which civil rights plaintiffs, immigrant communities, and other marginalized groups could halt executive overreach before it inflicted irreparable harm. Their disappearance is no mere procedural adjustment; it recasts the balance between the judiciary’s protective function and the executive’s prerogative to govern unencumbered.

This doctrinal shift accrued almost exclusively to the benefit of President Trump, whose administration had faced a phalanx of legal challenges. Whether the issue was the forced deportation of migrants, the exclusion of transgender Americans from military service, or the elimination of birthright citizenship, the Supreme Court’s majority showed an evident willingness to side with the executive branch on an emergency basis—often with scant explanation. Dorf described this posture as striking not merely for its partisanship but for its inconsistency: lower courts that blocked Trump policies were overruled with alacrity, even as those same justices castigated nationwide injunctions as judicial overreach.

At the same time, the term’s most divisive rulings revealed a Court emboldened to advance a culturally conservative agenda. In a 6-3 decision, the justices upheld Tennessee’s ban on gender-affirming care for minors, dismissing the equal protection claims of transgender plaintiffs and casting doubt on whether such discrimination should trigger heightened constitutional scrutiny. In another ruling, religious parents were granted the right to withdraw their children from public school curricula that included LGBTQ-themed storybooks—a decision that critics warn will invite broader challenges to any teaching that conflicts with sectarian belief. In the aggregate, these rulings did more than roll back hard-won protections for LGBTQ Americans. They signaled a willingness to prioritize religious objections over the rights of vulnerable communities, an alignment that recurred throughout the term.

For Dorf, the most unsettling dimension was not the conservative tilt per se but the Court’s apparent comfort with what he called a “soft authoritarian” style of governance. The Roberts Court had already repealed the constitutional right to abortion and limited the federal government’s capacity to regulate firearms. What distinguished this term was its readiness to facilitate the Trump administration’s disregard for judicial orders—an erosion not of precedent but of the rule of law itself.

Whether these developments portend a lasting reorientation of American jurisprudence remains to be seen. What is clear, however, is that the ideological polarization of the Supreme Court is reshaping the lives of countless citizens in ways that transcend conventional partisanship. In this respect, the travails of Sean Combs and the ambitions of the Roberts Court are, improbably, two facets of the same American story: one in which the legal system’s power to punish and to protect is increasingly mediated by political will—and by the narratives that prevail when the evidence, the law, and the culture clash in the crucible of the courtroom.

Segment 1: The Verdict in Sean “Diddy” Combs’ Case

Guests:

  • Robert Mintz, former federal prosecutor, partner at McCarter & English

Topics:

  • Combs’ acquittal on the most serious charges (racketeering, conspiracy, sex trafficking)
  • Conviction on two lesser felonies (transportation to engage in prostitution)
  • Defense’s strategy to challenge overcharging
  • Impact of the 2016 video showing domestic violence
  • Potential sentencing: between ~2–5 years under guidelines, but judge has broad discretion
  • Judge’s refusal to release Combs pending sentencing due to danger concerns
  • Broader implications of prosecutorial overreach and the difficulties of proving coercion in complex, long-term relationships

Segment 2: The Supreme Court Term Review

Guest:

  • Michael Dorf, constitutional law professor, Cornell Law School

Topics:

  • The Supreme Court siding repeatedly with the Trump administration
    • Disbanding nationwide injunctions (limiting checks on executive power)
    • Facilitating major policy shifts (transgender military ban, deportations, birthright citizenship challenges)
  • LGBTQ rights decisions:
    • Upholding Tennessee’s ban on gender-affirming care for minors
    • Requiring schools to exempt religious families from LGBTQ-inclusive curricula
    • Concerns about the erosion of protections under equal protection doctrine
    • Forthcoming cases on transgender sports participation and conversion therapy bans
  • Second Amendment developments:
    • Court upholding ghost gun regulations
    • Declining to broadly immunize gun manufacturers
    • Signaling possible caution but not reversal of the pro-gun rights direction
  • Emergency docket criticism:
    • Pattern of granting Trump administration emergency relief with limited justification
    • Disregard for procedural norms
  • Overarching movement:
    • From traditional conservatism into enabling a more authoritarian style of governance

Summary

This episode of Bloomberg Law, hosted by June Grasso, offered an in-depth analysis of two major legal stories:

1. The Sean “Diddy” Combs Case
After a six-week federal trial with emotionally charged testimony, Combs was acquitted of racketeering and sex trafficking but convicted of transporting sex workers across state lines—a felony under the Mann Act. Prosecutors’ strategy to use RICO laws typically reserved for mob cases ultimately backfired, allowing the defense to argue overreach. While the jury found Combs’ conduct disturbing, they did not believe it rose to organized criminal enterprise. Despite securing partial convictions, the prosecution faces criticism for overcharging, which opened avenues for defense cross-examination and ultimately undermined their case. Combs remains in custody as he awaits sentencing, which could be significantly harsher than defense estimates due to the judge’s concerns about continued danger.

2. The Supreme Court’s Term
Professor Michael Dorf described a term marked by sweeping decisions that advanced a conservative agenda, often benefiting the Trump administration. The Court stripped lower courts of their ability to issue nationwide injunctions, effectively removing a key check on executive overreach. In LGBTQ cases, the Court upheld bans on gender-affirming care for minors, sided with religious parents seeking exemptions from inclusive curricula, and signaled openness to further limits on trans rights in upcoming cases. While the Court maintained some gun regulations, its overall jurisprudence continues a rightward trajectory, blending traditional conservative principles with deference to Trump’s more aggressive policies. Emergency docket decisions frequently favored the administration without full briefing, raising concerns about procedural fairness and erosion of judicial norms. Ultimately, the Court’s direction was characterized as not just conservative, but increasingly aligned with authoritarian tendencies.

THIS POSTING WAS WRITTEN BY AI AND EDITED BY INTELLICUREAN