President Donald Trump wants to do a lot of things as president. A fair number of them appear to be either illegal or unconstitutional. To that end, Trump wants to make it harder to stop him in court and easier to keep doing things after courts have found them to be illegal. The Supreme Court’s nine justices appear to be divided on whether to let him win.
Oral arguments can be an imperfect indicator of how the court will ultimately decide a case. Tuesday’s session added to the uncertainty by giving no clear impression on some of the weightier matters in play. Some of the conservative justices appeared uneasy with the president’s lackadaisical approach to birthright citizenship. It’s also unclear whether a majority of the justices are prepared to support Trump’s demand to defang the lower courts.
“On the day after it goes into effect—this is just a very practical question, how it’s going to work—what do hospitals do with a newborn, what do states do with a newborn?” Justice Brett Kavanaugh asked Solicitor General D. John Sauer. He replied that he didn’t think they would do anything different because the order only disallows federal officials from accepting documents that have the “wrong designation of citizenship.”
“How are they going to know that?” Kavanaugh continued. “The federal officials will have to figure that out, essentially,” Sauer replied. That did not appear to satisfy Kavanaugh. “How?” the justice asked. “So you can imagine a number of ways that the federal officials could—,” Sauer began to say, before Kavanaugh interjected. “Such as?” he asked.
Sauer finally said that the officials could “require a showing of documentation showing legal presence in the country,” which only drew additional skepticism. “For all the newborns?” Kavanaugh said. “Is that how it’s going to work?”
At the same time, many of the justices aired their concerns about the potential warping effects that nationwide injunctions from federal district courts can have on the nation’s political system. “This case is very different from a lot of our nationwide injunction cases in which many of us have expressed frustration at the way district courts are doing their business,” Kagan told Kelsi Corkran, who argued on behalf of the immigrant plaintiffs.
She noted that because litigants can choose friendly jurisdictions, they can have a fairly good chance of success when asking for a nationwide injunction against the federal government. “You know, in the first Trump administration, it was all done in San Francisco, and then, in the next administration, it was all done in Texas,” Kagan noted.
The case, Trump v. CASA, is about Trump’s executive order that purported to no longer recognize birthright citizenship for some children born on U.S. soil to noncitizen mothers who are either “unlawfully present” in the country or whose presence is “lawful but temporary.” It did not apply retroactively, nor does it affect children with at least one U.S. citizen parent or who are born to green card holders.
In practical terms, Trump’s order would direct federal agencies to no longer provide documents to those children that would attest to their U.S. citizenship. More importantly, it would force those agencies to no longer recognize state or local documents that do the same. How this would work in practice is unclear, but the goal appears to be to deny documents like Social Security cards and passports to the targeted children.
Whatever the planned outcome may be, the order is unconstitutional on its face. The Fourteenth Amendment’s citizenship clause is unequivocal: “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.” Congress and the states ratified that clause in 1869 to overturn Dred Scott v. Sandford, the infamous 1857 case where the Supreme Court held that people of African descent could never be citizens, and to indisputably extend citizenship to all formerly enslaved people in the South during Reconstruction.
By virtue of that clause, anyone born on U.S. soil is an American citizen. Courts have traditionally interpreted the “subject to the jurisdiction” limitation to apply to children born to foreign diplomats stationed in the United States, since it could interfere with their ability to acquire citizenship in their parents’ country, and to Native Americans living under tribal jurisdiction. The latter category became defunct with the passage of the Indian Citizenship Act of 1924, which extended citizenship to all Native Americans in the country.
Some opponents of birthright citizenship, such as the Trump administration, have claimed that it does not apply to children born to foreign-born parents. There is ample historical evidence that the amendment’s drafters meant for it to apply as broadly as possible, and the Supreme Court itself accepted that approach in the 1898 case Wong Kim Ark v. United States, where it held that a California-born man whose parents were subjects of the emperor of China at the time was an American citizen from the moment of his birth.
For that reason, every federal court that has heard a legal challenge to Trump’s order has blocked it from taking effect. When the Justice Department asked the Supreme Court to intervene, however, it did not ask the justices to review the cases on the merits. Instead, the administration asked the high court to review the lower courts’ practice of issuing nationwide injunctions against the executive branch when they block federal policies.
Nationwide injunctions have bedeviled presidents from both parties over the last few administrations. With Congress hamstrung by the Senate’s filibuster and the House’s gerrymander-fueled hyperpartisanship these days, the White House has often sought to use existing legal powers in novel ways to carry out the agenda that it promised to voters. As a result, the Obama, Biden, and Trump administrations in particular have faced legal challenges against nearly every policy change that they try to make.
In some cases, federal judges have issued what are known as nationwide injunctions. (Some critics call them “universal injunctions,” but there is no evidence that they are obeyed on other planets or galaxies.) Courts generally have broad powers to order remedies for the litigants in a particular case. With nationwide injunctions, federal judges have ordered the federal government to not apply a policy change beyond the litigants themselves. In the birthright citizenship cases, for example, the lower court judges ordered the Trump administration not to enforce the executive order against anyone, not just the plaintiffs themselves.
Some of the justices have criticized this practice for exceeding a court’s traditional powers. “The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them,” Justice Neil Gorsuch wrote in a concurring opinion in 2020, which was joined by Justice Clarence Thomas. “Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.”
Presidential administrations are obviously not happy with this state of affairs either. Since senators have significant influence over the lower court appointments in their states, federal judges in many states tend to be ideologically homogenous. Trump has suffered frequent legal defeats at the hands of judges in California, New York, and other blue states. Obama and Biden had to run practically everything they did past a handful of federal judges in Texas thanks to forum shopping by conservative legal groups. That frustration even led Elizabeth Prelogar, the Biden administration’s solicitor general, to urge the justices to reconsider nationwide injunctions in a court filing last December.
Sauer, Prelogar’s successor, urged the court to rein in the injunctions in his opening statement on Thursday. “They encourage rampant forum shopping,” he told the justices. “They require judges to make rushed, high-stakes, low-information decisions.… They operate asymmetrically, forcing the government to win everywhere while the plaintiffs can win anywhere. They invert the ordinary hierarchy of appellate review. They create the ongoing risk of conflicting judgments.”
At the same time, Trump’s executive order on birthright citizenship showed how they can be an important check on presidential power. The asymmetry noted by Sauer would go the other way in a world without nationwide injunctions: Every parent who gives birth to a child potentially covered by the executive order would have to sue on their child’s behalf to get it blocked. (Sauer acknowledged that the plaintiffs could bring a nationwide class-action lawsuit but insisted he would vigorously oppose certifying the class.)
Justice Elena Kagan told Sauer that the Trump administration’s procedural approach in this case could allow it to avoid future Supreme Court rulings altogether. She noted that every lower court that had considered the executive order on the merits had ruled against it. By definition, the winning party in a case can’t appeal a ruling that it won. At the same time, the Justice Department did not ask the justices to review the merits question, instead only seeking review of the lower courts’ ability to impose nationwide injunctions as a remedy.
If they prevailed, Kagan explained, that could lead to a scenario where the Supreme Court never gets to review the merits at all. “If you win this challenge and say there is no nationwide injunction and it all has to be through individual cases, then I can’t see how an individual who is not, you know, being treated equivalently to the individual who brought the case would have any ability to bring the substantive question to us,” she told Sauer.
Sauer replied that other individuals could ask a federal district court to intervene. “Yeah, and then they win, and, again, I mean, you need somebody to lose, but nobody’s going to lose in this case,” she said, to laughter in the courtroom. “You’re going to have individual by individual by individual [cases], and all of those individuals are going to win, and the ones who can’t afford to go to court, they’re the ones who are going to lose.”
After some dissembling by Sauer, Kagan stated her point more directly. “The real brunt of my question is, in a case like this, the government has no incentive to bring this case to the Supreme Court because it’s not really losing anything,” she explained. “It’s losing a lot of individual cases, which still allow it to enforce its E.O. against the vast majority of people to whom it applies.”
Justice Sonia Sotomayor framed the problem in terms that might resonate more with conservatives. “So, when a new president orders that, because there’s so much gun violence going on in the country, he comes in and he says, ‘I have the right to take away the guns from everyone,’ and he sends out the military to seize everyone’s guns, we and the courts have to sit back and wait until every named plaintiff whose gun is taken comes into court?” she asked. Sauer suggested that the courts could certify a class-action lawsuit on an emergency basis in such a scenario, which seemed insufficient to the task at hand.
In theory, the federal government could accept a court’s precedent as binding throughout that jurisdiction. But the Trump administration apparently had no interest in committing to that. At one point, Barrett pressed Sauer on whether it would respect a court’s opinion within its own jurisdiction. “Did I understand you correctly to tell Justice Kagan that the government wanted to reserve its right to maybe not follow a Second Circuit precedent, say, in New York because you might disagree with the opinion?” she asked.
“Our general practice is to respect those precedents, but there are circumstances when it is not a categorical practice,” he replied. “I’m not talking about in the Fourth Circuit are you going to respect a Second Circuit [opinion],” Barrett continued. “I’m talking about within the Second Circuit. And can you say if that[’s] this administration’s practice or a long-standing one?” Sauer began to reply that it was “as I understand it, long-standing practice,” to which Barrett sharply replied, “Really?”
Sauer suggested that there might be scenarios where the department would try to overturn circuit precedent, but Barrett brushed that aside. “I’m talking about this week the Second Circuit holds that the executive order is unconstitutional, and then what do you do the next day or the next week?” she asked. “Generally we follow that,” Sauer replied. “So you’re still saying ‘generally,’” Barrett reiterated. “Yes,” Sauer confirmed.
When members of the court pressed Sauer on whether they should grant certiorari before judgment—an emergency power that the Supreme Court can use to review district court cases without waiting for the appeals courts—the solicitor general again demurred, suggesting that the legal dispute needed more time to “percolate” in the lower courts before reaching the justices. There did not appear to be much appetite for that: Members of the court ranging from Sotomayor and Kagan to Gorsuch and Justice Samuel Alito all pressed the lawyers on whether they should also take up the underlying merits question.
Since the justices did not spend any substantial time discussing the merits of the Trump administration’s interpretation of the citizenship clause, it remains unclear whether even one of them would ultimately side with it. One possible outcome would be that the justices rehear the case next term by granting the plaintiffs’ oral request during Thursday’s arguments to take up the merits argument as well. That would leave the status quo on birthright citizenship intact until at least the end of the year.
To curb nationwide injunctions, the court would also need to reckon with empowering a president who has already shown clear disregard for the courts’ authority. “The real concern, I think, is that your argument seems to turn our justice system, in my view at least, into a ‘Catch me if you can’ kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights,” Justice Ketanji Brown Jackson told Sauer at one point.
The Supreme Court has already shown extraordinary deference to Trump over the last few years and has occasionally embraced absurd legal theories, such as presidential immunity, that he has proposed. Rewriting the separation of powers to let presidents commit crimes has already had severe consequences for the rule of law. Rewriting the citizenship clause on Trump’s behalf could redefine exactly what it means to be an American—a question that the clause was designed to put beyond the whims of presidents, justices, and lawmakers forever.