The Supreme Court heard arguments on Thursday in a case related to President Trump’s executive order trying to end so-called birthright citizenship for children born in the United States to undocumented migrants. But the question before the justices was narrower: whether a single district court judge has the power to block a policy across the country.
Here are four takeaways from the arguments.
The case was not really about birthright citizenship.
The justices were not considering the legal merits of Mr. Trump’s order, even though it brought greater attention to the arguments on Thursday.
Shortly after being sworn in to his second term, Mr. Trump signed an order that reinterpreted the meaning of the 14th Amendment, which has long been understood to grant automatic citizenship to nearly everyone born on U.S. soil.
The order seeks to deny citizenship to babies born to undocumented migrants and visitors without green cards. As a practical matter, that would start with agencies in the executive branch refusing them citizenship-affirming documents like Social Security cards.
Multiple courts around the country have blocked the government from obeying that order, ruling that it is most likely illegal. They did so using universal injunctions, or orders that apply nationwide and cover people in similar situations who were not parties to the cases. At this stage, the Trump administration is challenging only the ability of courts to issue such orders.
Still, the underlying issue came up several times. Several justices expressed skepticism about the legality of Mr. Trump’s proclamation. Justice Sonia Sotomayor, for example, said that it violated, “by my count, four established Supreme Court precedents.” No justice expressed clear support for the legality of the order.
Justices asked about the history of universal injunctions.
Some of the justices — particularly its longest sitting member, Justice Clarence Thomas — seemed interested in the history of nationwide injunctions, suggesting at times that the practice did not have deep roots in American jurisprudence. The Supreme Court has rejected certain legal practices — most prominently, the constitutional right to abortion — by arguing that they were not traditionally recognized in U.S. law.
At one point, Justice Thomas said the nation had “survived until the 1960s” without the use of nationwide injunctions. While some legal scholars have challenged that assertion, pointing to examples of the tool’s use as far back as 1913, Justice Thomas seemed to be expressing skepticism about the widespread use of the injunctions.
Echoing that position, D. John Sauer, the U.S. solicitor general, said that courts have typically worked by addressing claims filed by individuals. He noted that during the flurry of legislative changes enacted during the New Deal in the 1930s, one policy in particular prompted lawsuits from more than 1,000 separate plaintiffs.
These days were different, Mr. Sauer said, pointing out that nearly 40 nationwide injunctions had been entered by a court in the past four months. He said the number of such injunctions had soared over the past five administrations, describing it as a “bipartisan problem.”
The justices also wrestled with practicalities.
One of the major themes drawn out by lawyers for the plaintiffs was the practical effect of doing away with nationwide injunctions in a case that touched on an issue affecting all Americans. The lawyers worried that before the Supreme Court issued a final ruling on the question of birthright citizenship, there could be “chaos on the ground” if some states were allowed to keep the practice and others states did not.
Jeremy M. Feigenbaum, New Jersey’s solicitor general, pointed out that if Mr. Trump’s policy prevailed in certain states, children of immigrants born there might not be able to get Social Security numbers. That could become a problem, he suggested, if they later moved to states that did recognize them as citizens, particularly if they tried to apply for government benefits.
Mr. Feigenbaum also noted that if a person’s citizenship depended on what state they were in, there could be widespread confusion about their immigration status as well. He wondered aloud whether the children of immigrants might be subject to deportation in states that did not recognize birthright citizenship and yet be shielded from removal in states that did.
Several worried about a potential loophole.
Justice Elena Kagan, noting that every lower court that has looked at Mr. Trump’s birthright citizenship order so far has ruled that it is illegal, asked Mr. Sauer how such an issue could be definitively resolved without a universal injunction.
Mr. Sauer proposed a world in which, after a legal issue “percolates” among many different individual lawsuits in the lower courts, the Supreme Court eventually issues a ruling in one of them that becomes a binding precedent that resolves the rest.
But Justice Kagan suggested that the Trump administration might simply choose to never appeal any of its losses to the Supreme Court. That, she said, would allow it to keep denying citizenship documents to the overwhelming number of babies who were born to parents who lacked the resources or wherewithal to sue.
Mr. Sauer suggested that a class-action lawsuit might be the way to solve that problem, but he also acknowledged that the administration would most likely argue that the standards were not met to grant class certification to all children affected by Mr. Trump’s order.
Justice Neil M. Gorsuch remarked, “Justice Kagan asked my questions better than I could have,” leading to a rare moment of laughter in the courtroom. He again pressed Mr. Sauer, “How do you suggest we reach this on the merits expeditiously?”
Justice Gorsuch went on to ask whether the administration intended to appeal to the Supreme Court after it lost — he said “when” that happens, not “if” — on the merits before an appeals court.
“If we lose?” Mr. Sauer replied. “Yes, absolutely.”
Charlie Savage writes about national security and legal policy for The Times.
Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.
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