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The Supreme Court on Thursday seemed open to lifting a series of nationwide orders blocking President Donald Trump from enforcing his birthright citizenship policy, even as several of the justices wrestled with the practical implications of allowing the government to deny citizenship to people born in the US. After more than two hours of argument, it was uncertain how a majority of the court might deal with those two competing interests. Some key conservatives suggested that the groups challenging Trump’s order might look to other types of lawsuits to stop the policy from taking effect. Other justices suggested the court might be willing to quickly review the questionable constitutionality of Trump’s birthright citizenship order, which lower courts have consistently ruled against. At least part of Trump’s argument appeared to find purchase on the conservative court: That lower court judges were too frequently shutting down the president’s policies with too little review. Several of the court’s conservatives – and even some of its liberals – have raised similar concerns in past cases. But that left several of the conservatives questioning what to do, in the meantime, with Trump’s policy, which appears to conflict directly with the text of the 14th Amendment. Justice Neil Gorsuch, at one point, ruminated about the “patchwork problems” of allowing enforcement in some parts of the country but not others. Justice Brett Kavanaugh pressed the attorney for the Trump administration about “how it’s going to work” if the president’s order is allowed to take effect. Both are conservatives. Here’s a look at some of the key takeaways from the argument: Kavanaugh, a key vote, suggests class-action lawsuits instead Kavanaugh, a member of the conservative wing who sometimes sides with the liberals, suggested that class-action lawsuits would suffice for allowing the challengers to Trump’s executive order to get broad relief from the courts. He brushed away the suggestion from challengers that relying on class certification as a tool raises many of the same issues as nationwide injunctions the president is complaining about. It’s a technical point, Kavanaugh acknowledged, but a potentially important one. Part of what Kavanaugh seemed to be saying was that there was another way for the groups challenging Trump to quickly shut down the order. It might be more challenging and take more time, but, he said, it would be more consistent with the way courts normally work. “We care about the technicalities,” Kavanaugh said at one point. When judges certify a class of people who will be affected the outcome of a lawsuit, they must consider who would be affected by the court’s ruling. That’s a higher hurdle to clear than simply reviewing the policy for its likely legality and shutting it down. The Trump administration has pointed to class-action lawsuits as being the proper vehicle for courts to issue orders that would broadly block enforcement of an unlawful presidential policy while the issue travels up higher courts. But liberal justices on Thursday, and conservative Justice Amy Coney Barrett, grilled Solicitor General D. John Sauer on the possibility that the administration would even fight in court against a request for class certification in this case. So it’s not clear, they suggested, that would solve anything. Barrett in particular, seemed concerned about that avenue to allow plaintiffs to temporarily halt a policy or law that violated the constitution. “Are you really going to answer Justice Kagan by saying there’s no way to do this expeditiously?” an incredulous Barrett pressed Sauer. Sotomayor: Birthright order violates four precedents The court’s three liberals battered Sauer with questions about how rolling back nationwide injunctions would work in practice. They quickly sought to move the debate beyond the Trump administration’s assertion that its request was a “modest” one dealing with the technical issue of limiting the reach of nationwide injunctions. “The president is violating not just one, but in my count, four established Supreme Court precedents,” Justice Sonia Sotomayor told Sauer. “And you are claiming that both the Supreme Court and no lower court can stop an executive, universally, from violating those holdings.” It was clear, almost immediately, that the court’s liberal wing would oppose Trump. And they spent much of the argument focused on the practical implications of allowing the government to enforce the order. Trump signed the birthright order on his first day back in office. It bars agencies from issuing citizenship documents, like passports, to babies born to non-US citizens. “Let’s just assume you’re dead wrong,” Justice Elena Kagan said at one point. “Does every single person that is affected by this EO have to bring their own suit? Are there alternatives? How long does it take? How do we get to the result that there is a single rule of citizenship that is the rule that we’ve historically applied rather than the rule that the EO would have us do?” The court’s conservatives engaged with that discussion less, but several nevertheless raised the issue. Notably, Kavanaugh pushed Sauer on how hospitals and states would deal with the order if it were allowed to be implemented tomorrow. “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?” Kavanaugh asked. Sauer said that federal officials would have to figure out the implementation. “How?” Kavanaugh demanded. “So you can imagine a number of ways that the federal officials could—” Sauer said. “Such as?” Kavanaugh continued, seemingly skeptical of Sauer’s response. Concern over court power But several of the court’s conservatives raised concerns about the idea that a single judge could thwart a president’s power. Just last year, the court limited the scope of an injunction that blocked Idaho from enforcing its ban on transgender care for minors. All judges, Justice Samuel Alito said, “are vulnerable to an occupational disease, which is the disease of thinking that ‘I am right and I can do whatever I want.’” Justice Clarence Thomas, another conservative, raised the idea that courts, historically, did not hand down nationwide injunctions affecting people who were not parties to the litigation before them. “So we survived until the 1960s without universal injunctions?” Thomas asked at one point. But Alito also brought up a practical question: If those challenging Trump’s order could simply, as Kavanaugh suggested, file a class-action lawsuit and quickly shut down Trump’s policy that way, then why the huge fight over injunctions? “What is the point” he asked, “of this argument about universal injunctions?” Barrett emerges as key justice to watch Barrett, who has emerged as a key vote in several cases this year involving the Trump administration, pressed Sauer about why the government was entirely avoiding the merits of the birthright citizenship issue. Her line of questioning drew an important concession from Sauer, who acknowledged the legal arguments defending the merits of Trump’s order were “novel” and “sensitive.” “So this one isn’t clear cut on the merits?” Barrett asked. Barrett, who has occasionally joined her liberal colleagues in some hot-button cases, also pressed Sauer on why the administration is opposed to a nationwide injunction but generally willing to accept a class-action judgment that would likely have the same effect. Sauer responded with two points: First, securing a class action can be more difficult. Second, a class-action judgement would require challengers to put more skin in the fight. In other words, if the members of class action lost, they would collectively also be bound by the decision the same way the government is. “So they’re taking a grave risk, so to speak, by proceeding through a class action and it has this symmetry where the government is bound if we lose, they are bound if we don’t lose,” he said. “And that’s very, very important distinction.” How soon will the court rule? In the run up to the arguments, there was significant debate about what the case is actually about: Was it about judicial power, and the ability of lower courts to block a president or the practical impacts of allowing this president to enforce this order? Throughout the debate on Thursday, it was clear that many of the justices were also having difficulty separating those two issues. “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,” said Justice Ketanji Brown Jackson. “Everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights.” Even though the case has reached the Supreme Court in an emergency posture, it’s not clear how long it will take the justices to resolve it. The last time the court held arguments in an emergency case, an appeal last year dealing with environmental regulations, it took the justices several months. Given the complications involved in the birthright case, it’s possible the court will need until the scheduled end of its term next month. This story has been updated with additional developments
