This Content Is Only For Subscribers
Please subscribe to unlock this content.
As the Supreme Court hears arguments Thursday on a major Donald Trump policy for the first time in his second term, the president could secure a significant win affecting many of the lawsuits against his administration out of a case that is otherwise widely seen as a legal loser. Trump has taken his attempt to end birthright citizenship – the longstanding practice of granting citizenship to any child born on US soil, regardless of their parents’ immigration status – to the high court. But in doing so, Trump officials made an intentional decision not to ask the court to review the constitutionality of the policy, which appears to run afoul of the 14th Amendment and more than 120 years of court precedent. Instead, the Justice Department wants the justices to focus on the power of lower court judges generally to issue orders blocking presidential measures nationwide – a major pet peeve of Trump. “We are thrilled to get this issue before the justices,” a senior administration official told CNN. Trump has seen scores of nationwide orders – also called universal injunctions – halting his administration’s initiatives, including in cases challenging his funding freezes, anti-DEI directives, mass layoffs of federal employees, cuts to public health research funding and various immigration policies. While every president in the 21st century has faced multiple court injunctions, Trump has, by far, seen the most as he has signed a record number of executive orders in his few months in office. Trump’s opponents in the case argue that his willingness to push and exceed the limits of executive power are why universal injunctions are needed in some instances, while noting that rolling back the nationwide orders in this case would present extraordinarily daunting logistical hurdles. “This is a fraught time for the relationship between the courts and the Executive Branch,” several Democratic attorneys general said in a brief to the court. “The Government is aggressively issuing Executive Orders of dubious legality, evading or ignoring court orders and attacking the judiciary. This is no time for this Court to limit the few powers that the courts have to do Equity in our Nation.” The frequency with which courts are issuing such blanket orders – a trend that took off when Republican-led states started asking for them to halt actions by President Barack Obama – has been subject to debate in the legal community. Justices across the ideological spectrum have signaled that the pattern deserves a closer look – though some have expressed more skepticism about the practice than others. On Thursday, the Supreme Court will be considering nationwide orders issued in multiple lawsuits challenging Trump’s birthright citizenship executive order – brought by Democratic-led states, immigrant advocacy groups and individuals who are pregnant with children who would be denied citizenship under the Trump proposal. Trump is asking the high court to limit the current injunctions to just the handful of individual plaintiffs – or at the very least, just in the roughly two-dozen Democratic states-led that challenged the policy in court. A ruling in Trump’s favor on that request would be a huge victory for him, even if the court ultimately strikes down the underlying birthright citizenship executive order. “Unlawful Nationwide Injunctions by Radical Left Judges could very well lead to the destruction of our Country! These people are Lunatics, who do not care, even a little bit, about the repercussions from their very dangerous and incorrect Decisions and Rulings,” Trump wrote on Truth Social in March, adding, “If Justice Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation IMMEDIATELY, our Country is in very serious trouble! If the Supreme Court puts any limits on when lower courts can issue nationwide injunctions – or eliminates them as a tool outright – the Trump administration would be able to pursue its agenda more quickly and effectively. And in the short term, if Trump is to prevail in scaling back the injunctions in this dispute, it would also let him, for some period time, terminate birthright citizenship for certain immigrants’ children – even with the overwhelming consensus that his executive order is unconstitutional. Legal merits in the background Trump’s new policy would end birthright citizenship for babies born in the United States if both parents lacked citizenship. It would apply not just to children of undocumented immigrants, but even children of parents in the country on a legal but temporary status, such as a student visa. Lower courts have ruled quickly and aggressively against his Day 1 executive order as a violation of the 14th Amendment, which says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Multiple court precedents have affirmed the long-held understanding that a parent’s immigration status does not rob a baby’s right to citizenship if he or she is born on US soil, and before the constitutional amendment was adopted, Congress passed a similar statute as well. Administration officials have privately expressed concern that the justices would not be willing to overturn court precedent that’s more than a century old and did not want to face a major loss so early in his term. Samuel Bray, a University of Notre Dame Law School professor and prominent critic of nationwide injunctions, told CNN that because the Supreme Court is not likely to uphold Trump’s policy in the end, the dispute is an attractive option for the justices to use to limit or end the use of universal injunctions. In other recent Supreme Court cases dealing with nationwide injunctions against presidential policies, the justices ultimately reversed the injunction because the policy itself was lawful, meaning that the justices didn’t have the opportunity to decide whether it was appropriate for the lower courts to block the policy nationwide. “The court has teed up the remedy question very clearly” in the birthright citizenship case, Bray said. There’s not likely to be a scenario where the Supreme Court says it does not need to address the appropriateness of lower court orders blocking Trump’s policy nationwide because it believes that the executive order is likely lawful, Bray said. One case where the court majority avoided the issue was the challenge to the Trump first term travel ban targeting mostly majority Muslim countries. The Supreme Court ultimately upheld the policy, but in a concurrence, Justice Clarence Thomas, a conservative, warned that court might need to end the practice of nationwide injunctions more generally. Justice Neil Gorsuch, another conservative, echoed the sentiment in another case, writing that the “routine issuance of universal injunctions is patently unworkable.” Speaking at a university event in 2022, Justice Elena Kagan, a liberal, addressed how nationwide injunctions – when coupled with forum-shopping – were hamstringing administrations of both parties, asserting that “It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process,” Kagan said. Even on the court’s far-left wing, Justice Ketanji Brown Jackson acknowledged in a 2024 opinion that universal injunctions raised “contested and difficult” questions, but stressed the answer was not “straightforward” and that the court should take its time in resolving it. Suzette Malveaux, a Washington and Lee University School of Law professor who signed a friend-of-the-court brief in this case, cautioned against seeing all various justices’ comments as suggesting that they’re all aligned with conservative calls for ending universal injunctions, as “some concerns seem more constitutional, while others seem more pragmatic.” “The question about whether or not a nationwide injunction should ever be allowed … that seems to be far reaching,” she told CNN. “There are concerns – concerns from Democrats and Republicans alike, too – but I think we’re in a context where it makes it very clear why nationwide injunctions are important and how valuable they can be.” A long-running debate Thursday’s hearing could surface the many criticisms that have been raised about nationwide injunctions in what has been a long-running debate. Presidents of both parties and their allies have expressed frustration with their use, but Trump and his Republican allies have doubled down on the issue in recent months. Opponents say lower courts’ embrace of preliminary, universal orders quickly catapults high-stakes legal fights to the Supreme Court’s emergency docket, forcing the justices to weigh in on major legal questions that haven’t had the chance to percolate among several lower courts. Outside of such emergency circumstances, justices tend to favor taking up cases that present legal questions that have been reviewed by multiple courts – especially if those questions have prompted disagreements between appeals courts about how they should be resolved. “If one loss binds the government forever against everyone, then we are going to lose out on the opportunity to get the wisdom of a great many judges as to how to solve a problem,” said Paul Larkin, a senior legal research fellow at the Heritage Foundation, a conservative think tank. How litigants have funneled cases to courts that are perceived to be favorable to their causes – a practice known as forum shopping – has heightened criticisms of nationwide injunctions. Republican and conservatives upped the ante during the Biden administration when they directed their lawsuits against the administration to single-judge court divisions, essentially allowing the litigants to choose their judges. In one such case, a Louisiana judge halted all White House communications with social media companies and in another, a Texas judge barred the Biden administration from making changes to the federal government’s deportation priorities. (The Supreme Court ultimately reversed both injunctions, but not on the grounds that their nationwide nature was inappropriate.) Friend-of-the court briefs opposing Trump in the birthright citizenship case argue that the forum shopping issue doesn’t exist in this dispute, as the rulings against the measure were issued by several courts in multiple circuits across the country. They also say, given that the relevant precedent is more than a century old, that this is not a case where the justices would need more lower court “percolation” of the issue to properly decide it. Then there are the practical issues if the justices were to rule that Trump’s policy should only be blocked for specific plaintiffs while the litigation continues. It would require state and local governments to develop complex verification systems for determining whether a baby is entitled to the benefits of citizenship under Trump’s policy, while imposing additional administrative burdens on new parents and injecting even more stress around the birth of a new child. Even halting the policy in some states but not others would create a mess for government officials, Democratic attorneys general argued in a brief led by New Jersey. If a baby covered by Trump’s policy was born in Pennsylvania, which is not party to any of the lawsuits, she would not have citizenship there, but could have her citizenship recognized in New Jersey, under the patchwork system Trump is proposing. Any family that wanted to challenge the denial of citizenship to their US-born child would almost certainly prevail if they filed a case in court. But, if universal injunctions were ended, courts would have to deal with each of those cases one by one, according to Omar Noureldin, who leads the policy and litigation team of Common Cause, which filed a friend-of-the-court brief opposing Trump. “And that’s totally unworkable,” Noureldin told CNN. CNN’s Casey Gannon contributed to this report.
