Supreme Court Divided on Injunction Question in Birthright Citizenship Case
The U.S. Supreme Court heard oral arguments on Thursday in a case relating to President Donald Trump’s executive order attempting to unilaterally redefine the meaning of the 14th Amendment’s birthright citizenship clause.
At issue before the court, however, wasn’t the order itself, but rather the topic of nationwide injunctions — sometimes referred to as “universal injunctions” — that several district court judges have used to halt the order’s enforcement throughout the country.
The Trump administration argues that judges at that level of the federal court system should not be allowed to issue nationwide injunctions (even though Trump and his allies have celebrated such rulings when they have happened under Democratic administrations).
During the Supreme Court hearing on Thursday, justices seemed to express little doubt that Trump’s executive order was unconstitutional. However, on the question of nationwide injunctions, there appeared to be a split between the justices concerning how restrictions on them would work in a practical manner.
Justice Elena Kagan asked U.S. Solicitor General John Sauer, who was arguing in favor of the administration’s position, how a blatantly unconstitutional law or order could be blocked in an expedient way, if an injunction can only affect a certain group of people or jurisdiction.
Theoretically, an injunction affecting only a small portion of the U.S. could be enforced while the unconstitutional action continues elsewhere in the country. If a presidential administration chooses not to appeal the injunction, the issue could potentially never reach the Supreme Court to be ruled on in a way that would affect the entirety of the U.S., leaving millions vulnerable to the unconstitutional action.
“There are all kinds of abuses of nationwide injunctions…[but] if one thinks that it’s quite clear that the EO is illegal, how does one get to that result, in what time frame on your set of rules without the possibility of a nationwide injunction?” Kagan asked.
Sauer’s position was that a wider injunction affecting more parties could come through a class action lawsuit — a notion that Justice Sonia Sotomayor said “makes no sense whatsoever,” as those types of lawsuits take much longer time to organize and argue, and the end result still might not reach the Supreme Court.
Conservative justices who have expressed dismay with nationwide injunctions in the past also spoke up, sometimes by agreeing with misleading statements made by Sauer. Justice Clarence Thomas, for example, appeared sympathetic to Sauer’s claims that nationwide blocks like these were a relatively new phenomenon.
“So we survived until the 1960s without universal injunction?” Thomas asked Sauer, who responded affirmatively. (In fact, the start of nationwide injunctions date back several decades before that time.)
Justice Samuel Alito also compared injunctions affecting the whole country to an illness in need of curing.
“Sometimes [judges are] wrong,” Alito said. “All Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right and I can do whatever I want.”
Several legal experts, however, expressed grave concern over what could happen if the administration wins the argument over nationwide judicial holds — including for the case at hand.
“Although several justices are skeptical of nationwide injunctions, Sauer failed at offering up alternatives, a fact that was especially relevant in a case where many justices were questioning the underlying validity of Trump’s EO to end birthright citizenship,” Law Dork’s Chris Geidner said.
“The five male justices sound eager to rein in universal injunctions or abolish them … but also appear split on what could replace them, which is a really messy problem,” Slate senior writer Mark Joseph Stern wrote on Bluesky, noting in a previous post that he finds it “very, very difficult to anticipate where the Supreme Court will come down on the universal injunctions currently protecting birthright citizenship from Trump’s assault.”
Civil rights lawyer Sherrilyn Ifill said it was disheartening that the case didn’t focus on the issue of birthright citizenship more — and what would happen to many living in the U.S. if the injunction rule is changed.
“I have to be honest about what I didn’t hear at oral argument at the SCOTUS today in President Trump’s challenge to nationwide injunctions issued by district courts that have kept him from enforcing his anti-birthright citizenship EO: How delays & partial injunctions would hurt the true victims,” Ifill wrote.
If the President is arguing to strip federal judges of the power to stop him from flagrantly violating the 14th Amendment citizenship rights of Americans — literally rendering some children stateless persons — that context is germane to [the] argument about the legitimate use of the federal court’s power.