The Supreme Court, Birthright Citizenship, and a Battle Over National Injunctions
On May 15th, the Supreme Court is set to hear arguments in a consolidated case, Trump v. CASA, a matter of significant constitutional importance. The core of the case revolves around a controversial executive order issued by former President Donald Trump, an order that seeks to redefine birthright citizenship and potentially strip citizenship from a substantial number of individuals born within the United States. The Court’s decision to grant a full hearing in May is notable in itself, as the justices typically reserve such hearings for issues deemed exceptionally urgent.
The article argues that Trump’s executive order is fundamentally flawed and likely unconstitutional. It challenges the bedrock principle of birthright citizenship enshrined in the 14th Amendment, which states that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." The article cites Judge John Coughenour, a Reagan appointee who initially blocked the order, emphasizing the clarity of the constitutional violation.
However, the specific legal questions before the Court are not directly focused on the merits of birthright citizenship. Instead, the central issue is the legality and appropriateness of "nationwide injunctions," court orders issued by lower courts that bind the entire federal government and prevent the enforcement of a particular policy across the nation. Three courts issued nationwide injunctions against Trump’s anti-citizenship order, effectively halting its implementation throughout the country.
The debate over nationwide injunctions has been ongoing for years, with proponents arguing that they are sometimes necessary to provide complete relief and ensure uniform application of the law, while opponents claim they grant excessive power to individual judges and disrupt the federal government’s ability to implement its policies.
Justice Neil Gorsuch, in a concurring opinion during the Trump administration, expressed his concern about the overuse of nationwide injunctions. He argued that injunctions should be limited to addressing the specific injuries suffered by the plaintiffs in a particular lawsuit. Allowing a single judge to halt a federal policy nationwide, Gorsuch argued, encourages "judge-shopping," where plaintiffs strategically seek out the judge most likely to rule in their favor, potentially leading to inconsistent and politically motivated decisions.
The article highlights that this "judge-shopping" phenomenon became particularly evident during the Biden administration, with a number of judges in Texas issuing injunctions against a variety of policies. The author cites Judge Matthew Kacsmaryk’s attempt to ban the abortion drug mifepristone as a prominent example.
The Supreme Court’s handling of nationwide injunctions has also been criticized as politically inconsistent. During the Trump administration, the Court often intervened swiftly to halt injunctions against Trump’s policies. However, when judges issued injunctions against Biden’s policies, the Court sometimes delayed its decisions for extended periods.
Interestingly, even the Biden administration, frustrated by the widespread use of nationwide injunctions, requested the Supreme Court to limit their scope. Former Solicitor General Elizabeth Prelogar filed a brief advocating for such limitations, even knowing that the decision could benefit the incoming Trump administration.
The Supreme Court has chosen to address the issue of nationwide injunctions in the context of the Trump v. CASA case. This is viewed as an odd choice given the strong argument for a nationwide injunction in this particular instance. The executive order, if allowed to stand, would create an administrative nightmare, requiring states and the federal government to track the citizenship status of individuals based on their parents’ membership in specific organizations or their state of residence. Such a system would be unworkable and potentially violate the Constitution’s equal protection principle.
The article reiterates the fundamental argument that Trump’s attack on birthright citizenship is unconstitutional. The 14th Amendment clearly states that all persons born in the United States and subject to its jurisdiction are citizens. The Supreme Court, in United States v. Wong Kim Ark (1898), further clarified that the exception for those not "subject to the jurisdiction" of the United States is very narrow, primarily applying to children of foreign diplomats or those born of alien enemies during hostile occupation.
Trump’s lawyers did not even ask the Supreme Court to fully restore his birthright citizenship order. They only asked the Court to limit the scope of the lower courts’ injunctions. This strategic decision acknowledges the overwhelming precedent against Trump’s position.
While the legality of Trump’s birthright citizenship order is questionable, the issue of nationwide injunctions presents a complex legal and policy challenge. Gorsuch and Prelogar raise legitimate concerns about the potential for abuse and disruption of government operations.
However, a complete ban on nationwide injunctions could render many court orders ineffective, particularly in cases where the remedy requires nationwide action. For example, in gerrymandering cases, redrawing the entire gerrymandered district is the only effective remedy. Similarly, in the birthright citizenship cases, limiting the injunction to the specific plaintiffs would create an administrative burden, requiring states and the federal government to track the membership status of individuals in particular organizations to determine their eligibility for citizenship.
The Supreme Court’s current precedents, particularly the principle outlined in Califano v. Yamasaki (1979), provide a framework for resolving this tension. Califano states that "injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs."
In many cases, Califano will preclude nationwide injunctions. However, in the birthright citizenship cases, a nationwide injunction appears to be the only way to provide complete relief to the plaintiffs and avoid an administrative nightmare.
The Trump administration also argues that the states challenging the birthright citizenship order lack "standing" to bring the lawsuit. However, the states contend that they will suffer financial harm if the order goes into effect because many federal programs tie funding to the number of citizens within a particular state. Additionally, the states argue that ending birthright citizenship would require them to make significant changes to public programs such as Medicaid and CHIP.
In conclusion, the Trump v. CASA case presents the Supreme Court with a complex set of issues. While the constitutionality of Trump’s birthright citizenship order is highly questionable, the debate over nationwide injunctions raises important questions about the balance of power between the courts and the executive branch. The Court’s decision in this case will have significant implications for the future of government policy and the ability of individuals and organizations to challenge those policies in court. The Court’s decision will likely offer insights into how the justices will approach the issue of nationwide injunctions in future cases, determining which injunctions are permissible and which are not.
