Legal Commentary | Whitten Legal

Update to the Birthright Citizenship Executive Order Case(s)

Rollen Quicoy — Thu, 10 Jul 2025 17:32:42 +0000

There have been more Executive Orders signed by President Trump which have diverted some of the attention away from the Executive Order entitled Protecting the Meaning and Value of American Citizenship (i.e., the EO which ends birthright citizenship for certain categories of persons.

You will recall that the EO stated there would be no birthright citizenship for a child born to a mother who is “unlawfully present” or “lawfully present but temporary”, and whose father is not a US citizen or lawful permanent resident. Two weeks ago, a judge in Washington (a Ronald Reagan appointee) called it “blatantly unconstitutional”, issued a nationwide Temporary Restraining Order (“TRO”) against implementation, and scheduled the case for hearing on whether to extend the TRO into a Preliminary Injunction (which would typically stay in effect through final trial or until an appellate court ordered otherwise).

That Preliminary Injunction hearing occurred today, and in less than 20 minutes the court granted a nationwide Preliminary Injunction against implementation of the EO.

As a preliminary matter we should understand the legal grounds on which a trial court can grant a Preliminary Injunction. The basic requirements for a Movant to get a Preliminary Injunction include establishing that:

The Movant is likely to succeed on the merits at final trial;
Irreparable harm is likely to occur unless the preliminary injunction is granted;
The balance of equities tips in favor of the movants; and
The preliminary injunction is in the public interest.

Here, the trial court completely rejected the Government’s tortious arguments that the “subject to the jurisdiction” clause in the 14th Amendment somehow means something other than what its plainly states:

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.

The Government’s argument goes something like this: a person here illegally is not subject to the jurisdiction of the United States because her permanent domicile is not here (after all, she is subject to deportation), and her allegiance is to another country (because she is a citizen of another country).

Respectfully, this is much less than good faith legal reasoning. “Jurisdiction” is a legal term and concept that goes way back to when we turned Boston Harbor into a lightly caffeinated body of water. As has been a truism in the law since before our country was founded, a government has “jurisdiction” over all the land and persons within its geographic borders except persons with diplomatic immunity. The last time I checked, undocumented migrants are certainly subject to our laws, can be arrested, hauled into our courts, prosecuted, fined, imprisoned, deported, etc.

The Government makes additional arguments in favor of what it wants “jurisdiction” to mean, including that a person must be permanently domiciled in the United States for her child to enjoy citizenship at birth and not owe allegiance to any other country. However, no variation of the word “domicile” or “allegiance” is anywhere in the 14th Amendment.

Some of the court’s most clearly stated reasoning to reject grafting new words, meanings, and requirements onto what is a simple sentence which uses simple words that conveyed (and still convey) a simple meaning when they were written, is the following:

In interpreting the text of the Constitution, courts are “guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’

In other words, you shouldn’t have to be a creative lawyer to understand the Constitution. This principle of Constitutional interpretation was stated as recently as by the “conservative” Supreme Court in 2008, and back to another Supreme Court decision in 1931.

The trial court also notes that the Government’s interpretation of the Citizenship Clause contravenes long-standing Supreme Court precedent going back to 1898.

The full analysis by the trial judge is deeper than my brief summary, but it is still a quick and easy read (the entire Order is only 13 pages) and can be accessed here.

I have no doubt that this decision will be appealed to the 9th Circuit Court of Appeals, and then to the United States Supreme Court (along with other cases on this issue, including one in Massachusetts which also granted an injunction against the EO).

While many of my friends, acquaintances, and colleagues disagree with me on this (those on the “right” and on the “left”), I predict that the United States Supreme Court will strike this EO down in a 9-0 or 8-1 decision. This is just too easy of a call for it to not go at least 8-1. (If I’m wrong, feel free to heckle me).

Now, my more “unvarnished” opinions:

We have an immigration and border crisis. We may disagree about the extent, cause, proper solutions, who is at fault, etc., but I think virtually everyone in the country agrees we have a real problem.
A real problem deserves a real solution, not a “head fake” to cause cheers, jeers, or panic. This EO is just that and has as much chance of “fixing” (all or part) of the immigration / border problems as I have in qualifying for the Olympics in speed skating. Why? Because it will be struck down as unconstitutional by the Supreme Court. And anything proposed as a solution which has no chance of being implemented because of its unconstitutionality is a waste of time, paper, ink, hope, effort, and political capital.
Even worse, this EO has caused absolute panic in some of our most vulnerable communities among our most vulnerable neighbors. Perhaps one is not bothered by that because “those” people “shouldn’t be here anyway and it serves them right”. . . .. (which I’ve heard more than once).

But does it really “serve them right”?

If I am correct and this EO is never going to be implemented because of its unconstitutionality, why try (and succeed) to cause abject terror to people who went through abject hell to get here for a better life?

Should “they” be deported? Should there be exceptions? Should there be a path to citizenship? Those are questions that need to be debated, and whatever the result, so be it, as long as it is a legal and constitutional result.

But as a country how should we feel about ourselves if the “real purpose” is just to cause the highest levels of worry, stress, anxiety, and fear to people? That, from the most powerful and wealthiest country in the world, I believe is immoral.

Did the Attorneys (and Their Client) that Dallas Cowboys Quarterback Dak Prescott Sued, Blow Their Chance at a “Win”?

Rollen Quicoy — Wed, 03 Apr 2024 09:27:39 +0000

On behalf of the Law Office of Greg Whitten on Wednesday, April 3, 2024.

I recently posted an article about the lawsuit Dallas Cowboys quarterback, Dak Prescott, filed against two lawyers (“Zehaie” and “Zehaie”) and their client Victoria Shores (“Shores”), alleging extortion, defamation, and other claims, based on a demand that Dak pay her $100 million dollars to settle her claims arising from an alleged sexual assault in 2017. If you haven’t read that article, read it here before you read the rest of this article.

Fortunately for Dak, Shores and her attorneys did exactly the worst thing, strategically, that they could possibly do: they went ahead and filed a lawsuit against Dak alleging the sexual assault in February, 2017.

Why is this a BIG mistake on their part?

First, it is a huge mistake to have filed the lawsuit because they cannot win it. The statute of limitations for a sexual assault is 5 years, and the assault Shores claims occurred was 7 years ago. (Whether the sexual assault happened or not, I have no idea. Assuming it did happen, then it is a shame Shores did not sue Dak within the 5-year time limit.).

Of course, there is an exception to the 5-year statute of limitations (but it isn’t going to save Shores’ lawsuit): If Shores can prove that Dak has been physically outside of Texas for 2 years out of the last 7 years, then the statute of limitations defense would not bar the lawsuit. But think about it . . . how are they going to prove he has been outside of Texas for 2 out of the last 7 years? They can conduct written discovery (requesting his travel records from him, from the Cowboys, request his phone and text records, credit card and bank statements, etc., etc.) and they can take depositions of Dak, the Cowboy’s travel office personnel, and others. They will have to do all that and more to have a chance to identify every day over the last 7 years that Dak was not physically in Texas.

But . . . What is all that discovery and all those depositions going to cost in attorney’s fees and expenses? Since Dak has plenty of money to pay his attorneys, you can bet every objection, delay tactic, motion, legal maneuver, etc. will be used to delay, obstruct, and otherwise prevent the discovery from happening. By the time all the legal maneuvering is over, it could easily have cost Shores $100,000 or more in legal fees and expenses. And even if she can afford that, what are the chances of proving Dak was out of state for 2 out of 7 years? My guess is slim to none.

The second reason this lawsuit is a big mistake is that the whole premise of the Anti-SLAPP Motion to Dismiss that I discussed in my previous article is that Dak’s lawsuit was filed to prevent Shores from exercising her rights of free speech, association, and to petition for redress of grievances (i.e., file a lawsuit). It is a “little” harder to argue that Dak’s lawsuit was to prevent her from filing her own lawsuit, when her attorneys went ahead and filed the lawsuit against Dak!

The third reason it is a mistake for Shores to have filed the lawsuit against Da, is that when it is all over and she loses the lawsuit on Dak’s statute of limitations defense, she is going to feel victimized all over again. And, it could be worse than that, as Dak could seek sanctions against her for filing a frivolous lawsuit that is doomed to be lost from the beginning. It is foreseeable that she could be ordered to reimburse to Dak all of his attorney’s fees and expenses ($100,000? More?).

The lawsuit Shores filed against Dak can be downloaded here. Check back with me from time to time as I will follow this case and update developments.

If you, or a loved one has been the victim of assault, family violence, or dating violence, please call us. We can help!

Dallas Cowboys Quarterback, Dak Prescott, Files Defamation Case

Rollen Quicoy — Thu, 14 Mar 2024 09:37:43 +0000

On behalf of the Law Office of Greg Whitten on Thursday, March 14, 2024.

Is This a Game Winner or Game Loser?

A very interesting case was recently filed in Collin County, Texas.Victoria Shores (“Shores”) hired two attorneys (“Zehaie” and “Zehaie”) to send a demand letter to Dallas Cowboys quarterback, Dak Prescott, alleging that he committed sexual assault against her in 2017. Dak Prescott denies the allegation.

If Dak pays her $100 million, Shores will settle and “forego pursuing criminal charges, along with disclosing this information to the public.” This is certainly a bold demand, since the statute of limitations for Shores to sue Dak in civil court expired two years ago, and any lawsuit she filed would likely be dismissed by summary judgment.

Dak Prescott did not wait to be sued. Instead, his attorneys blitzed – they filed a lawsuit against Shores and her attorneys, asserting various causes of action for defamation, civil extortion / duress, civil conspiracy, and others. While it is reasonable to question the strength of the claims behind Shores’ demand, that is not what is interesting to me. To me what is interesting is:

Did Dak Prescott just expose himself to payment of the other side’s attorney’s fees, plus potentially high monetary sanctions, by filing this lawsuit?

Texas has the Texas Citizen Participation Act (TCPA), also known as the Texas Anti-SLAPP Statute (SLAPP stands for “Strategic Lawsuits Against Public Participation”). In short, this law protects the ability of a person to exercise her constitutional rights of freedom of speech, freedom of association, and freedom to petition the government for redress of grievances. Basically, whether our motives are pure or not, and whether our facts are true or not, if we are sued because of the exercise of one of these rights, Anti-SLAPP comes into play. The public policy for the statute is that we cannot allow someone to use the court system to bully someone else into not being able to freely exercise their rights to freedom of speech, association, and to petition.

In other words, if Dak Prescott’s lawsuit is based on Shores’ and her attorneys’ exercise of the freedom of speech, the freedom of association, and/or the freedom to petition the government for redress of grievances (and it certainly is, at least in large part), then they can respond with an Anti-SLAPP Motion to Dismiss against Dak.

When Defendants file their Anti-SLAPP Motion to Dismiss, a hearing will be held in 60 – 90 days, at which time Dak Prescott will have to put forward sufficient evidence on each element of each challenged cause of action. If he fails to do so, then his case will be dismissed. And if it is dismissed, he will be ordered to pay Defendants’ attorney’s fees and expenses. In a case such as this, that could be $50,000 or more.

Even more significantly, the Court can enter a sanctions order against Dak, in an amount “the court determines sufficient to deter [him] from bringing similar actions” in the future. For someone with the wealth of Dak Prescott, how big would a sanctions order have to be to dissuade him from bringing a similar lawsuit in the future? $1 million? $10 million? $20 million? More?

By analogy, imagine a big game in which the Dallas Cowboys are winning by 5 points, with three seconds left, and all that Dak Prescott has to do is take a knee. Instead, Dak passes – will it be intercepted and returned against him for a game winning touchdown?

Anti-SLAPP situations can occur in many situations, and often are often found in family law cases when a claim of defamation is made against the other party (I have one of those now).The case is styled Rayne Dakota Prescott vs. Victoria Baileigh Shores, Bethel T. Zehaie, and Yoel T. Zehaie, and filed in the 493rd Judicial District Court, Collin County, Texas, The Honorable Christine Nowak Presiding.

You can download the lawsuit here and you can read an article about it here.