In a lengthy oral argument that ranged from procedural matters to questions about the Trump administration’s commitment to the rule of law, the U.S. Supreme Court debated narrowing a nationwide pause of President Donald Trump’s executive order redefining birthright citizenship.
Hearing one of the most important cases of the term, the justices discussed only in snatches what has the potential to be one of President Trump’s most consequential executive actions. Instead, in more than two hours of questions, the high court focused on a procedural issue that could have major consequences for how courts resolve lawsuits involving the federal government.
The birthright citizenship order, issued hours after Mr. Trump’s inauguration on Jan. 20, would reinterpret the 14th Amendment and make the children of temporary or unlawful immigrants ineligible for automatic U.S. citizenship. Twenty two states and immigrant rights groups sued, and a trio of federal judges stopped the order from taking effect. Because the courts are likely to strike the order down as unconstitutional, the judges said, they issued nationwide injunctions preventing it from taking effect while their rulings are appealed.
Why We Wrote This
Forum shopping is hurting the United States, a majority of justices appeared to agree Thursday. But a majority also seemed to agree that the 14th Amendment doesn’t need reinterpreting.
It is these nationwide injunctions that the Trump administration is asking the Supreme Court to review. Specifically, the administration is arguing that the injunctions should be narrowed. While they are in effect, the government says it cannot begin detailing how the birthright citizenship order would be implemented. Narrowing the injunctions would also, in theory, allow the government to begin enforcing the order in portions of the country.
But this procedural question could also have profound consequences for how the federal judiciary operates. Nationwide injunctions have become increasingly common – and increasingly controversial, including on the high court – but they can also play an important role in preserving the legal status quo while courts weigh major legal and constitutional questions.
During the argument Thursday, the justices broadly agreed that nationwide injunctions are problematic. They disagreed, however, on what should replace them. And two conservative justices appeared sympathetic to the idea that this case – with 22 states suing – might actually merit a sweeping injunction.
“Why wouldn’t they be entitled to an injunction of the scope of the one that has currently been entered?” Justice Amy Coney Barrett asked Solicitor General D. John Sauer, who argued the case on behalf of the Trump administration.
Lurking in the metaphorical corner of the argument was the question of whether the birthright citizenship order is constitutional at all. It came up sparingly, but when it did, some justices appeared skeptical that the Trump administration would win on the merits.
“Legally and historically dubious?”
Animosity toward nationwide injunctions has been bipartisan. Republican and Democratic presidents alike have, in recent decades, bemoaned individual federal judges preventing their policies – such as student loan relief under President Joe Biden and immigration reform under President Barack Obama – from taking effect around the country. The increased prevalence of nationwide injunctions has in turn, scholars agree, encouraged what is known as “forum shopping” by opponents of both ideologies.
This animosity has reached a new height in the second Trump administration. As of late March, federal judges had issued 17 nationwide (also called “universal”) injunctions against Mr. Trump, according to the Congressional Research Service. With the birthright citizenship order, the Trump administration argues the problem of universal injunctions has reached “epidemic proportions.”
The Trump administration isn’t alone in questioning this judicial power. The Biden administration also ran into forum shopping, with 28 nationwide injunctions during its four years.
Some justices have voiced skepticism in the past, and those justices made themselves heard this morning.
Justice Clarence Thomas – who heard his 2018 concurrence stating that universal injunctions are “legally and historically dubious” referenced multiple times during the argument – questioned again whether universal injunctions have a strong grounding in U.S. legal history.
“So we survived until the 1960s without universal injunctions?” he asked Mr. Sauer. (Some legal experts argue the first nationwide injunction was issued in 1913; others, like Mr. Sauer, say 1963.)
Justice Samuel Alito criticized district court judges exercising power over the entire country through nationwide orders, describing them as acting on “an occupational disease.”
“That is the disease of thinking, ‘I am right and I can do whatever I want,’” he said. But while federal judges on multimember courts are restrained by their colleagues, he added, “a trial judge sitting in a trial courtroom is the monarch of that realm.”
Other justices countered that universal injunctions are an important tool for the federal judiciary. The alternatives – such as individuals challenging a government action either by themselves or as a legal class – would give the government more freedom to enforce unlawful orders.
Justice Sonia Sotomayor offered one hypothetical. If a president signs an order that the military confiscate every privately-owned gun in the country, she asked Mr. Sauer, “Do we and the courts have to sit back and wait until every plaintiff whose gun is taken goes to court?”
Even then, some justices posited, if courts are limited to granting relief only to specific individuals or specific groups, that would mean the rest of the country is still subject to a government action while courts are determining if the action is lawful.
The real concern, Justice Ketanji Brown Jackson said, “is this turns our justice system into a catch-me-if-you-can regime, where everyone needs a lawyer and needs to file a lawsuit to vindicate their rights.”
“Did I understand you correctly?”
In over two hours of argument, the debate oscillated between the practical and the profound, between procedural questions and constitutional ones, and to what extent the Trump administration would honor court decisions.
According to the government, the justices here are being asked to resolve a “modest” request. The court should “restrict the scope” of the nationwide injunctions, “limiting [them] to parties actually within the courts’ power.”
But the request raises a host of broader questions.
Most immediately: Say the Supreme Court does “restrict” the nationwide injunctions in the birthright citizenship case, what then? In this case and in future cases where large numbers of people claim they are being targeted by an unlawful action, what emergency relief could federal courts provide?
One option would be for a court to allow a group of similarly situated individuals to file a class action lawsuit against the government, a process known in the federal code as Rule 23. A second option would be to allow states to ask for emergency relief. A third option would be for the courts to rule on the merits of the action much faster than normal, a solution that Chief Justice John Roberts seemed to favor.
“We’ve been able to move much more expeditiously” than in the past, he said. “I think we did the TikTok case in a month.”
Several justices questioned if these replacements were workable, or if they would preserve nationwide injunctions in all but name. If Rule 23 actions and state lawsuits could proceed, Justice Alito asked, “would the practical problem be rectified to any substantial degree?”
Another problem the justices confronted was the Trump administration’s ongoing reluctance to follow lower court orders it disagrees with. For the first time since Mr. Trump began his second term, justices questioned the administration directly about this purported defiance.
While claiming that Rule 23 would be an appropriate tool to address emergency situations, Mr. Sauer conceded that the Trump administration would also challenge some class certifications under the rule’s “appropriately rigorous” criteria. He also suggested to Justice Kagan that the administration may not feel bound to follow an appeals court ruling if it provided relief beyond the parties involved in the case.
After a few minutes in which Justice Brett Kavanaugh dug into how the birthright citizenship order would be implemented on the ground, Justice Barrett circled back.
“Did I understand you correctly that the government wanted to reserve its right to not follow Second Circuit judgment because you disagreed with the opinion?” she asked Mr. Sauer.
This raises the potential for a Catch-22, Justice Kagan noted. Resolving an emergency lawsuit against the federal government “sort of depends on the government’s own actions,” she said.
If a discrete group successfully blocks an executive order from being enforced against them, “the government has no incentive to [appeal the] case to the Supreme Court, because it’s not really losing,” she added. The government “can still enforce its [order] against the vast majority of people to which it applies.”
The court is expected to issue a decision by the end of June.
