BOAT RACE

I’ve watched a good bit of the World Cup, mostly for the drama and pageantry and excitement.  I was in Philadelphia’s Reading Terminal Market at noon on the day Brazil played Haiti, and the scene was full of fun and energy, with hundreds of yellow-jerseyed fans lining up for pork sandwiches and cheesesteaks and soft pretzels, and singing their team songs.  I can’t say I follow the game or root for a particular team, but I was prepared to be a soccer fan for a couple of months.

 

In other words, I wanted to like the damn thing, and I did at first, but the tournament, as run by FIFA, will offend any real sports fan.

 

I will not dwell on the suspension of U.S. star Folarin Bologun, and his reinstatement following a phone call from Donald Trump to FIFA President Gianni Infantino, except to point out the only conclusion one can draw from the incident---that FIFA and Infantino really don’t care what the world thinks of their integrity and honesty.

 

Regardless of the merits of the Balogun suspension, there was only one possible response to Trump’s plea that would preserve some hint or intimation or soupcon or suggestion that FIFA and Gianni were on the square---the appeal HAD TO BE DENIED, perhaps with an explicit statement that FIFA had been reviewing the suspension but that the process was terminated when the American President attempted to intervene in FIFA’s internal deliberations. 

 

Instead, Infantino, the guy who invented the FIFA Peace Prize and presented it to Trump last December, rolled over.  He didn’t care what his actions said about FIFA and himself.  Or perhaps, in a perverse way, he did.   There is a dictatorial, boss-man mindset in some dictatorial bossmen that doesn’t want to be viewed as fair or impartial.  They just want the world to know THEY are in charge and if you don’t like it, the hell with ya.  Maybe that is the explanation. 

 

But that’s the executives, and bureaucrats, and Trump, and politicians.  It’s not what happens on the field, right?  The problem is that what happens on the field is even worse.

 

Results of games have been pre-arranged, either by refereeing or by agreement of the teams.  The Algeria-Austria match, for example, occurred in the final round of the group stage where a draw would give each squad a single point and allow both to proceed to the elimination rounds.  With Algeria leading 3-2, the final minute of the game featured an absurd spectacle where seven Algerians gathered near the left sideline while an Austrian was permitted to head the tying goal into the net.  The refs then whistled the game over before any more action could occur.

 

Then there was Iran’s surprising elimination when they had taken a 2-1 lead with seconds left in their final match against Egypt.  Their winning goal would have advanced them into the elimination rounds, but it was taken down based on an offsides alert from the Video Assistant Referee (VAR).  The on-field referee did not make the call himself, and the VAR “proof” is still being disputed.  But taking down the goal sent Iran home, which is all anyone wanted, apparently.

 

And that is the fundamental problem with the officiating.  The goal removals and delayed penalty calls only benefit the good guys, the teams FIFA likes and that are “supposed” to advance.  Nobody wanted Iran in the tournament in the first place, and somehow they wound up getting screwed.  Coincidence?

 

And no one is “supposed” to win more than defending champ Argentina with its beloved aging superstar Lionel Messi.

 

In the round of 16, the Argentines faced Egypt, and with the clock ticking away in the second half, the Egyptians forced a turnover in their own end, took the ball all the way down the field and scored to go up 3-0, which would have been an impossible margin for Argentina to overcome.  The referee then reviewed the VAR footage from the other end of the field and decided Egypt had to be penalized for the steal that had happened 40 seconds before the goal was scored.   This took down the goal and allowed the Argentines to execute their “miracle” comeback.

 

In the next game, the quarter-final match against Switzerland, Argentina took a 1-0 lead into the second half.  The Swiss, however, began to dominate play and scored a goal to tie.  IMMEDIATELY after the tying goal, the ref threw out one of the Swiss players, leaving Argentina with an extra man advantage for the remainder of regular time and overtime.  With the Swiss offense hamstrung, Argentina won easily.

 

Defenders of world soccer and the status quo will tell you that VAR, with its embedded cameras and lasers, allows much more accurate officiating.  But as we have seen, that is not what it is used for.  Since the on-field ref maintains complete authority to use VAR suggestions or reject them entirely, the video is used only as CYA evidence by a referee who wants to go back in time to make a call he didn’t make when it happened.  The Egypt penalty that was discovered only after the team had driven the length of the field and scored a goal is ample proof of that.

 

“Boat race” is an archaic bit of slang that only ancient horseplayers like me remember.  Nobody uses it anymore, not even horseplayers.  It means a fixed horse-race.   For many years, the race after the Kentucky Derby at Churchill Downs was reputed to be a boat race, and it may have been.  It was the perfect time to cheat since, after the Derby, nobody was paying much attention. 

 

As a sports fan, I am appalled by the World Cup.  It appears to be a boat race for Argentina.   That doesn’t mean they will necessarily win it all, since France and Spain and England will probably not cooperate.  (It’s not like pro wrestling where the loser knows he is supposed to lose.) It does mean that FIFA and its officiating will do everything in their power to send Messi and company out in a blaze of glory.

 

Copyright2026MichaelKubacki

THE BIRTHRIGHT CITIZENSHIP CASE---CLARENCE THOMAS MISSES ONE

         “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”  ---Fourteenth Amendment, Section 1

 

         On June 30, the Supreme Court released its decision on birthright citizenship, with Justice Roberts writing for the majority in upholding the interpretation that has been generally accepted for the past 160 years.  In a 91-page opinion by Clarence Thomas, three justices dissented.

 

         Commentary on both sides has been harsh, especially from the losing side.  I have seen Roberts’ opinion described as “absurd,” and Thomas’s dissent called “brilliant” and a “tour de force.”  I don’t think either opinion is especially insightful or wise, and I’ll tell you why.

 

         First of all, the proper interpretation of the Fourteenth Amendment is not that complicated or open to varied meanings.  If we are “originalists,” which is supposedly what most of the Court is, all we do is look to the plain meaning of the words when they were written.  “Born or naturalized in the United States” is not at all fuzzy or ambiguous, and it means the same thing today as it did 160 years ago.  “Subject to the jurisdiction thereof” is also as clear as an azure sky despite the extraordinary efforts to muddy its meaning.

 

         We are talking about babies here, remember, because babies are the ones who get born.  We are not talking about their parents or the parents’ DNA or their nationality or homeland.  The ONLY question is whether the baby, the little guy or gal who got born here, is “subject to the jurisdiction” of the USA.  And of course the answer is yes.  He gets a birth certificate here instantly, and a social security number a few days later.  From the moment of his first breath, he is a tax deduction for somebody on their 1040.  If he is destitute, he is immediately eligible for welfare benefits here.  In a few years, he will be claimed by authorities in the education bureaucracy.

 

         In addition, there is no other jurisdiction with a claim on him.  Even if his parents are Guatemalan citizens, Guatemala will not even know he exists.  His parents may someday inform Guatemala they have a kid, and Guatemala may recognize the baby as one of theirs, but that may or may not ever happen.  All we know at the moment of birth is that the baby is a “person born…in the United States and subject to the jurisdiction thereof.”

 

         That should have been the Roberts opinion.  He should have taken my last three paragraphs and called it a day.  But Roberts blithers.  He often blithers, and it gets him into trouble.  Here, Roberts wanders off into an analogy about the English Common Law and what it meant to be a “subject” of the sovereign in 1608.  He has gotten endless grief and mockery for this, and he deserves it because, well, being a subject of the king of England in 1608 has nothing whatever to do with being a citizen of the US under the Fourteenth Amendment.

 

         Of course, Clarence Thomas does the same thing in his dissent.  Most of his “authority” is from academic articles and remarks by Congressmen (rather than from case law), but one case he cites multiple times is The Pizarro, 15 U.S. 227 (1817) which involved, believe it or not, the interpretation of a 1795 treaty with Spain and whether the ship was actually “Spanish” when it was seized by privateers.  It is certainly arguable that Thomas’s analogy is even less relevant than Roberts’ who-is-a-subject-of-the-king musings.

 

         The most troubling part of Thomas’s dissent, however, comes just after his citation of The Pizarro when he completely mischaracterizes the holding of The Slaughter-House Cases, 83 U.S. 36, a very important and often-cited Supreme Court opinion from 1873.

 

         First, Thomas writes, “This Court agreed: The Citizenship Clause ‘exclude[d] from its operation children of…citizens or subjects of foreign States born within the United States.’  Slaughter-House Cases, 16 Wall. 36, 73 (1873).”  Thomas Dissent, p.4.

 

         Interesting!  The ellipsis by Thomas conceals a world of meaning.  The actual language of the Slaughter-House opinion is this: “The phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.” Thus does Justice Thomas subtly try to score points for his side with a proposition that no one really disputes: children of foreign ambassadors or consuls do not become US citizens just by being born here.

 

         Worse than this, however, is Thomas’s omission of the next paragraphs from the Slaughter-House Cases, which nail down the OPPOSITE of what Justice Thomas claims the case holds: 

 

         

“The next observation is more important in view of the arguments of counsel in the present case. It is that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established.

 

Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. (Emphasis added.)

 

It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.”

 

Slaughter-House Cases, 83 Wall. 73-4.

 

         There is one rather obvious reason to exclude these paragraphs---because they demolish Thomas’s argument that a person born in the USA must also be “domiciled” here to be a citizen.  According to the Slaughter-House Cases, the legal meaning of the 14^th Amendment could not be more clear: if you are born in the United States, you are a citizen.  It doesn’t matter where your domicile is. 

 

         This error is more than a little disturbing.  Claiming a case says the opposite of what it actually says is not a little thing.  This is the sort of mistake one might expect from an AI-addled first-year law student, but never from a man regarded as one of America’s greatest legal authorities.  I can only hope this misstatement is brought to Justice Thomas’s attention, and that he takes whatever steps he can to rectify the situation.

 

         Following the six pages of introduction, which concludes with the mistakes noted above, Justice Thomas presents a 45-page argument that citizenship under the 14^th Amendment REQUIRES that the person be domiciled in the United States.  I think the fact that this screed rolls on for 45 pages is itself evidence of its fundamental weakness, but there is a much bigger problem.  Not only do the Slaughter-House Cases explicitly hold that there is no requirement of domicile for citizenship to exist, but the 14^th Amendment itself includes no hint that domicile has any relevance at all. 

 

         The word “domicile” has been around for hundreds of years.  It appears in statutes and legal writings that long pre-date the 14^th Amendment.  Every person in Congress and in state legislatures who debated passage of the 14^th Amendment knew the meaning of the word.  I don’t know whether there was any debate over using the word in the text of the Amendment, but there could have been.  In any event, the people who wrote the 14^th Amendment could have used the word “domicile” and, for whatever reason, they chose not to.  Instead of “domiciled” in the United States, they said “subject to the jurisdiction” of the United States, and that makes all the difference.  “Subject to the jurisdiction” is a very different standard from “domiciled.”  Justice Thomas is demanding that we import a different standard into the 14^th Amendment than the standard that is there.

 

         Being “subject to the jurisdiction” of a place is very easy. Almost everyone present in a place for any period is subject to the jurisdiction thereof.  (Exception: diplomatic immunity.)  Being “domiciled” there is much more difficult.

 

         To be subject to the jurisdiction of a place, you need merely pass through it.  If you run through a stop sign while driving through Florida, you may have to pay Florida a fine.  If you spend a night in Nevada and impregnate a woman there, you may be subject to Nevada law for purposes of child support.  You may even be subject to the jurisdiction if you never physically enter a place, but enter into a contractual relationship with someone there.  As the Slaughter-House Cases informs us, “subject to the jurisdiction” excludes almost nobody.  Simply being born here is usually enough to make you a citizen.  “[i]t is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.“   Slaughter-House, 83 U.S. at 74.

 

         Thomas’s proposed “domicile” standard would exclude a large percentage of Americans who have been treated as citizens since birth.  Being “domiciled” somewhere is not easy.  “Domiciled” means you live there, for at least a substantial portion of your time.  You pay taxes there.  If you want to drive, you need a license from the government there.  You may be called for jury duty.  If there is a military draft, you may have to fight for the place.  Justice Thomas would change the common understanding of “subject to the jurisdiction thereof” and suddenly demand an enormous commitment of time and money and effort from those we have regarded as citizens for the past 160 years.   And all because he feels the word “domicile” should appear somewhere in the 14^th Amendment. 

         

             I think of myself as Clarence Thomas’s biggest fan.  Over the years, I’ve probably read half of his opinions.  His dissent in Gruter v. Bollinger, the affirmative action case, brought tears to my eyes.  I have told friends many times that 250 years from now, his opinions are the only ones that will still be read.

 

         This dissent, however (and I hate to say this), looks suspiciously like a results-oriented piece where the justice decides in advance what he wants the opinion to conclude and then drafts an argument to reach that conclusion.  I have never before seen a Clarence Thomas opinion that made me suspect such a thing.  The leftists on the Court do this all the time, of course.  Roberts also does it often, and he may have done it in this case.

 

         Thomas has certain prejudices, as all of us do, but they are not political in nature, and I’ve never read an opinion of his where I thought his political views tilted his legal judgment.  It would be a shame if, as we approach the end of his brilliant legal career, that began to happen.  

 

Finally, let’s go back to the beginning.  How did we get here?

 

         President Trump’s Executive Order, signed on January 20, 2025, put forth the most extreme position he could possibly have adopted on birthright citizenship.  For 160 years, Congress, courts, and presidents had understood and accepted that Section 1 of the 14^th Amendment meant that babies born in this country (with a few exceptions), were citizens.  Trump attempted to change that history by edict.

 

         There is nothing in our laws that permits a president to change unilaterally the meaning of a Constitutional provision.  Section 5 of the 14^th Amendment states that “The Congress shall have the power to enforce by appropriate legislation, the provisions of this article.”  But Trump wasn’t interested in that.  He decided he could personally reverse generations of legal meaning because he didn’t like the accepted interpretation.  And he probably believed that once his views became law, hundreds of thousands of people who thought they were American citizens would have to go “home” to places they had never even visited, like Mexico, Pakistan, and Syria. 

 

         If the concern is “birth tourism” or anchor babies, there is still nothing that prevents Congress from enacting “appropriate legislation” to address those issues and further the aims of the 14^thAmendment.  It is even possible that Trump alone could nibble around the edges of current law by Executive Order.  What he CANNOT do is what he did.

 

 This Supreme Court decision is no surprise.  What is surprising is that the decision was not unanimous. 

 

Copyright2026MichaelKubacki