- The Supreme Court heard oral arguments in its birthright citizenship case on Thursday.
- Although some justices are concerned with whether Trump's birthright citizenship order violates the Constitution, most of Thursday's debate centered on the use of nationwide injunctions by lower court judges.
- Nationwide, or universal, injunctions have become increasingly common in recent decades as presidents from both parties have used executive orders to advance their policy agenda.
The Supreme Court on Thursday debated the use of nationwide injunctions in a case that could disrupt dozens of lawsuits against the Trump administration.
The case is focused on President Donald Trump’s birthright citizenship order, but the justices are expected to answer a broader question about whether federal judges in lower courts have the authority to prevent new policies from taking effect across the country as lawsuits play out.
As it stands, lower court judges regularly put universal injunctions in place, especially in cases involving executive orders.
Since Trump returned to the White House in January, 40 nationwide injunctions have been issued against the federal government, according to D. John Sauer, the solicitor general of the United States, who argued against the injunctions on Thursday.
Sauer said universal injunctions are a misuse of judicial power and urged the justices to limit their use. Moving forward, judges should only be able to protect individuals or groups who are actually involved in a case, at least until the case becomes a class action suit, he said.
Attorneys representing the states, cities, pregnant women and immigrants’ rights activists who sued to block the birthright citizenship order disagreed with Sauer’s characterization of the injunctions, arguing they’re a necessary and valuable tool. The court should also reject Sauer’s claims about class action suits, they said, since it’s unclear if their clients would even have access to that approach.
Although several of the Supreme Court justices have expressed frustration with universal injunctions in the past, Sauer faced several tough questions on Thursday.
As expected, the court’s three more liberal justices rejected his arguments about injunctions and class action suits, asserting that he was essentially advocating for a world in which even the Supreme Court had no power to block an unconstitutional order from taking effect.
Justice Sonia Sotomayor described a hypothetical scenario in which a president decided that rising gun violence justified a total gun ban. As the military went door-to-door collecting weapons, would judges really have to wait for each individual gun owner to join a lawsuit before they ordered the government to give them all back?
Sauer said past cases have shown that class action suits can be organized and decided on an emergency basis and noted that the Supreme Court would maintain the right to move quickly once it was presented with constitutional concerns.
What was surprising on Thursday was how many of the Supreme Court’s more conservative justices seemed dissatisfied with Sauer’s arguments, including his comments about class action suits.
For example, Justice Samuel Alito said that, in his mind, there’s not much of a practical difference between allowing for nationwide injunctions and allowing for the creation of huge class action suits.
Justice Brett Kavanaugh pushed back against the idea that the recent proliferation of universal injunctions is the fault of activist judges. Part of the increase can be explained by recent presidents’ growing reliance on executive orders amid congressional inaction, he said.
Kavanaugh’s comments point to the fact that all future administrations have a stake in the current case, since Democratic presidents are just as likely as Republican ones to see their policy moves derailed by nationwide injunctions.
Still, Thursday’s arguments made it clear that the case’s specific context matters quite a bit.
Some justices who might, in other cases, agree to limit the use of universal injunctions appeared to think they’re justified when it comes to Trump’s birthright citizenship order.
Birthright citizenship case
The order, which was released on Jan. 20, the day Trump began his second term, says that babies born to parents who are in the U.S. illegally or temporarily should no longer be granted U.S. citizenship automatically.
Many legal scholars say the order violates the Fourteenth Amendment and Supreme Court precedent, but the Trump administration says the Fourteenth Amendment was written to benefit the children of slaves, not of immigrants or foreign visitors.
Several lawsuits were filed to block the order’s implementation, and emergency rulings in three of those cases led to the current Supreme Court battle.
The rulings were based on lower court judges’ belief that the Trump administration would ultimately not be able to defend the order against constitutional claims. But rather than ask the Supreme Court to weigh in on that conclusion, the administration asked the justices to decide whether the judges actually had the authority to issue nationwide injunctions.
The Supreme Court agreed to hear the case on an expedited basis, but Thursday’s arguments made it clear that the justices aren’t ignoring the underlying question.
At several points in the conversation, various justices brought up the content of the birthright citizenship order and said that universal injunctions seem appropriate when an order violates the Constitution.
Without the injunctions, families, hospitals and government officials across the country would be stuck in limbo for three or four years as lawsuits worked their way toward the Supreme Court, Justice Elena Kagan said.
Attorneys for the people, organizations, states and cities challenging the order picked up on that refrain during their presentations, arguing that nationwide injunctions are necessary in situations where partial or temporary implementation of an order would cause legal chaos.
It’s possible that the Supreme Court will issue a ruling that generally discourages the use of universal injunctions, except in cases that satisfy certain requirements. Such a ruling would be a limited victory for the Trump administration, even if the court said the injunctions against the birthright citizenship order could remain in place.
If the court fully accepts Sauer’s arguments, then the birthright citizenship order — and other orders that are currently on hold due to nationwide injunctions — would likely take effect in the parts of the country that aren’t represented by the parties who brought the cases.
Another possible outcome is for the court to rule on the constitutionality of the birthright citizenship order or to postpone their ruling to make time for additional briefing and arguments on the constitutional questions.
In one of those two scenarios, the court’s ruling likely wouldn’t come until fall at the earliest. It’s currently expected by early July.