The Outsider Perspective Issue 496 | The Beltway Outsiders

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Good Friday Morning! Somewhere in southern Tasmania this week, a 2,200-pound elephant seal named Neil is back on the roads, and the locals have given up pretending they are in charge. Neil is five years old, and every winter he comes ashore to molt. Molting is itchy. So Neil scratches, and because Neil is more than a ton of seal, the things he scratches against tend to lose. He has worked his way through fences, cars, building, and this past Saturday he shut down an intersection until police and wildlife officers could coax him back toward the water.

Neil is a repeat offender. He first went viral a couple of years ago for flopping across roads and batting around the traffic cones the authorities set out to protect him, and for the afternoon he parked himself behind a woman’s car and kept her home from work. His hashtag has tens of millions of views. The mayor’s official position is that Neil is both a beloved local celebrity and potentially dangerous, so please stop trying to pet him.

Closer to home, the country turns 250 this weekend. Two and a half centuries ago a handful of colonists decided that a faraway government accountable to no one was a bad way to live, and they did something about it. I will be away from the keyboard on the Fourth, so I will say it now: happy birthday, America. Read the Declaration to your kids, grill something that offends your cardiologist, and be grateful for a founding that has held this long.

That birthday is a decent frame for this week’s essay. Two hundred fifty years in, Washington is still fighting over what the founding documents actually say, and this term the Supreme Court answered the question again and again. I’ll get into the end of this term, why the anger at Amy Coney Barrett is ridiculous, and more – links to follow.

Quick Hits:

The Court finally took the AR-15 case, and the bans are living on borrowed time. On its way out the door for the summer, the Supreme Court agreed to hear challenges to bans on the AR-15 and similar semiautomatic rifles in Cook County, Illinois and in Connecticut, with argument set for the fall. Last term the justices ducked the same question out of Maryland. Brett Kavanaugh signaled where it was going anyway, calling the lower court’s ruling “questionable” and predicting the Court “should and presumably will address the AR-15 issue soon.” The doctrine here is not complicated. The Second Amendment protects arms in common use for lawful purposes, and the AR-15 is the best-selling rifle in the country. If the most popular rifle in America is not in common use, the phrase means nothing. The same six-justice majority just struck down a Hawaii gun law. It is not going to save these bans. This is likely the last gasp for AR-15 bans across the country.
Democrats turn to outright communism. The radicals taking over the Democratic Party aren’t exactly quiet about what they want. So what is the problem? According to Axios: Republicans “rebooting the Red Scare.” Nothing has changed in 100 years. The American press ignored the communist subversion of the country in the 20th century, and they’re doing it again now. It doesn’t matter if it’s the Soviets or the CCP. It’s the same strategy. That makes it a good time to highlight the definitive history of that era: Blacklisted by History: The Untold Story of Senator Joe McCarthy and His Fight Against America’s Enemies. Long story short: McCarthy was right. Nixon rose to early prominence by prosecuting the case against communists in the country, that McCarthy made the number one issue of his day. When we finally got a look at the Soviet archives, it turned out conservatives were right about everything.

Where you can find me this week

Please subscribe, rate, and review The Horse Race on YouTube — the reviews help listeners, and readers like you find me. Make sure to sign up for the Conservative Institute’s daily newsletter and The American Almanac.

The Court Took the Government’s Hand Off Elections – Conservative Institute

Democrats Called It a Coup When Trump Didn’t Defy the Courts. Now Their Own Mayor Does. – Conservative Institute

Stop Yelling at Amy Coney Barrett

Conservatives just had one of their strongest Supreme Court terms in years. The thanks the justices got was a pile-on.

Within hours of the birthright-citizenship ruling, Representative Nancy Mace told Congress to “impeach rogue, activist judges,” then added: “We’re looking at you Amy Coney Barrett.” Matt Walsh called Barrett, a mother of seven who adopted two of her children from Haiti, “a DEI hire, little better than Kentanji Jackson.” Megyn Kelly called her a “turncoat.” The charge is that she keeps “siding with the left.”

Days earlier, that same justice had voted to hand the president control over two dozen federal agencies and to strike a pillar of the Voting Rights Act. Both things are true. The justice conservatives spent late June cursing is not the one who sat on the bench all term. The anger is real. It is also pointed at the wrong target, and it holds up only if you ignore almost everything the Court did this year.

This was a conservative term

The record runs one way. In April the justices struck down Louisiana’s map and ruled the state leaned too hard on race when it drew a second majority-Black district. Alito wrote it. The result freed Republican mapmakers across the South months before the midterms. Last week the Court knocked out the Watergate-era limits on what a party can spend in step with its own candidates, a First Amendment win I wrote about last week. It struck down a Hawaii carry law and agreed to decide next term whether states can ban the AR-15. And it handed the president the biggest prize of all: the power to fire the officials who run the federal agencies.

This is not a Court drifting left. Ruling after ruling, it delivered the outcomes conservatives have chased for fifty years. A justice does not turn traitor in a term she spent mostly ruling your way.

Killing the 1935 rule was the win Trump wanted

The Court had spent recent terms clipping the power of federal agencies. Two years back it scrapped the Chevron doctrine, the rule that told judges to defer to an agency’s own reading of the law, and moved that power to the courts. This term it took the other half: control over who runs the agencies.

For ninety years, Congress could build agencies whose leaders no president could fire without cause, which meant documented misconduct or neglect of duty. The heads of the Federal Trade Commission and the labor board sat behind that wall. Trump fired two of them anyway and told them their work clashed with his priorities. The Court said he could. In overturning a 1935 precedent that had stood unanimous since the New Deal, the majority held that the people who enforce federal law answer to the elected president, not to a job protection Congress wrote to keep them at arm’s length. Roberts called the old line between “executive” and “quasi-legislative” agencies a legal fiction. The work these commissions do, writing rules and hauling companies before their own in-house judges, is executive power. Executive power belongs under a president the voters can remove. The ruling reaches roughly two dozen commissions, including the ones that police business mergers and referee union fights, and their leadership will now turn over with each administration.

The dissenters warned about exactly this: a president clearing out career experts and packing the agencies with loyalists. The worry is fair. But an unfirable commissioner answered to no one, and a president answers to the voters every four years. This is the whole conservative case against the administrative state, won in a single opinion.

Trump himself knew it. He waved off the birthright loss and sarcastically thanked China for its “massive Birthright Citizenship WIN.” Then he called the firing case the “biggest and most consequential Decision” of the term. He was right about which one mattered more. The justices his fans are branding traitors just handed him a prize the movement has chased since Reagan.

Birthright was the easy call

The fury comes down to two rulings and one non-ruling. The loudest is birthright citizenship. The Court held, 6 to 3, that a child born on American soil to parents here illegally or temporarily is a citizen, and it struck the executive order that said otherwise. Roberts wrote that such children “satisfy both elements of the Citizenship Clause” and are “citizens at birth.” Citizenship, he added, “was the right to have rights.”

None of this surprised me. In January 2025 I wrote that the order would fail, because an executive order cannot rewrite the Fourteenth Amendment and no honest reading of the text gets you where the president wanted to go. The history is not close. Before the Civil War, the Court ruled in the Dred Scott case that a Black man descended from slaves could never be a citizen. The Fourteenth Amendment was written in 1868 to bury that ruling and to fix the answer in the Constitution: a child born on our soil and subject to our law is an American. In 1898 the Court applied that promise to Wong Kim Ark, born in San Francisco to Chinese parents, after the government tried to bar him from the country on the claim that he was not a citizen. The Court said he was. It has read the clause the same way for the 128 years since.

The critical words are “subject to the jurisdiction.” A conservative judge, the Fifth Circuit’s James Ho, spelled out their meaning years ago: to be subject to the jurisdiction is to be obliged to obey our laws. The only people it leaves out are foreign diplomats and invading armies. A baby born in Houston to illegal immigrants is bound by American law the day she is born. Roberts found “scant evidence” for the government’s theory that citizenship turned on a parent’s permanent home.

The dissents never made the case the critics think they made. Clarence Thomas, joined by Neil Gorsuch, argued the clause was really about domicile, which would still make citizens of the children of immigrants who put down roots here (this was essentially the administration’s argument). Alito trained his fire on “birth tourists, women who come here solely for the purpose of giving birth to a child.” Gorsuch wrote separately to wonder whether the children of illegal immigrants who mean to stay should be citizens after all. Three dissenters. Three different theories. At most, there were two votes for the White House’s reading of the history (and even that’s not entirely clear with the Thomas dissent). Not one of them a clean argument for ending birthright citizenship. The live questions are narrower than the order that lost, birth tourism and the harder puzzle of the territories, and the Court did not have to touch them to decide this case.

Even Brett Kavanaugh, who agreed the order was illegal, rested that on a federal statute rather than the Constitution, and he noted that Congress “has not yet” written any exception. Some conservatives read it as a roadmap: if you want a new rule, pass a law and defend it in court. That is the honest path. It runs through Congress, not through a decree the president signs alone. Any party who brings the wrong tool and the wrong history loses.

Cook’s case isn’t finished

The second grievance is Lisa Cook. The same week, the Court refused to remove her from the Federal Reserve while she fights her firing in the lower courts. Biden put her on the Fed’s board. Trump moved to fire her over mortgage-fraud allegations. She denies them.

Critics saw it as Barrett caving to the liberals again. It was an emergency order, not a decision on the merits. The justices never reached the question of whether the president can fire a Fed governor. They held only that the administration skipped the process the statute requires, with no notice and no chance for Cook to answer, before it moved against her. And they treated the central bank as a special case, a century-old arrangement they would not upend on an emergency motion.

The constitutional question about the Fed is still open. Do it by the book, and the administration may well win. You cannot brand a case a betrayal before the case is over.

Mississippi’s own law was on trial in the ballot case

The third complaint unravels on contact. Before the birthright decision, the Court held, 5 to 4, that states may count mail ballots postmarked by Election Day but arriving a few days late. Barrett wrote it. The critics logged another loss for the left.

The fight did not run left against right. The Court upheld Mississippi’s law, a red state’s five-day grace period, defended in court by Mississippi’s Republican secretary of state. The challenge came from the Republican National Committee. And the people who urged the justices to protect these grace periods included the red state of Alaska, because a third of Alaska’s precincts depend on the mail to move ballots out of villages that sit off the road system, reachable only by boat or bush plane.

This was a fight over how elections run in hard country. Barrett read the statute as written: the federal law sets the day for voting, and, in her words, “we cannot add to the words Congress chose.” Conservatives have asked judges to read statutes that way for forty years. Mail voting has real problems worth arguing over. This case, with a red state’s law and rural Alaska on the same side, is not the proof of treachery it was sold as. We’re not dealing with the issues in California, Illinois, or other states.

Barrett spent the same week ruling for Trump

On the same morning Barrett struck the birthright order, she also joined the 6-3 majority that let states keep transgender athletes out of girls’ and women’s sports. Days earlier she had sided with the administration as it stripped deportation protections from hundreds of thousands of Haitian and Syrian immigrants. The same justice, the same stretch, cutting both ways. That is what a judge looks like when she reads cases instead of counting votes for a side.

The turncoat charge collapses on one fact. Barrett cast a decisive vote to overturn Roe v. Wade. A justice who did that is not siding with the left.

Charles Cooke of National Review pointed out the contradiction: last week Barrett was awful for her deportation vote “despite having a Haitian child,” and this week she is awful in the birthright case “because she has a Haitian child.” Amy Swearer, a conservative scholar Thomas cited in his own dissent, disagreed with the ruling and still told the mob to grow up, noting that “some of ya’ll out here acting like a man didn’t write the majority opinion.” Roberts wrote it. The attacks on Barrett’s sex and her adopted children are not arguments. They are what people reach for when the ruling is sound and they are angry anyway.

The Constitution decided these cases, not the president

A judge applies the law in front of her, and the law does not always run one way. This term it ran the conservative way far more often than not, and once, on a birthright order the Fourteenth Amendment could not abide, it ran against the president. Barrett and the majority followed the text both times.

The president went shopping for a Court that would rule for him no matter what. He got one that reads the Constitution instead. The same reading that struck his birthright order will bind the next president who tries to govern by decree. Barrett spent the term reading the law and casting conservative votes, and the birthright ruling did not change that. The people yelling at her are aiming at the wrong target.

Changing birthright citizenship – as I wrote over a year ago – likely requires a full amendment. That point has been clear for over a century. Birth tourism and citizenship in the U.S. territories could offer more fertile land for the administration.

But regardless, the Supreme Court is on much firmer ground. We’ve witnessed the administrative state curtailed, Roe eradicated, racial gerrymanders nuked, and far more. This is a Supreme Court that is adhering closely to the constitution in ways that conservatives have dreamed about. And I’m looking forward to seeing the AR-15 bans go down in flames next term.