Supreme Court Justice Elena Kagan ridiculed President Donald Trump’s challenges to judicial injunctions and birthright citizenship on Thursday, telling the administration it has its strategy all wrong.
The Barack Obama appointee chided U.S. Solicitor General John Sauer for not challenging the legality of birthright citizenship outright. Instead, Sauer is challenging the judicial authority to issue nationwide injunctions—a focus Kagan said it made no sense for the administration’s ultimate goal of ending birthright citizenship.
“Let’s assume that you lose in the lower courts pretty uniformly, as you have been losing on this issue, and that you never take this question to us,” she said. “I mean, I noticed that you didn’t take the substantive question to us. You only took the nationwide injunction question to us… You’re losing a bunch of cases.”
The Trump administration asked the Supreme Court to consider ending the judicial power to institute sweeping injunctions, but did not ask the court to rule on the constitutionality of birthright citizenship. However, the two issues are related, as a district judge’s injunction is what is currently keeping Trump’s executive order to end birthright citizenship from going into effect.
Kagan said the Trump administration should have brought the issue of birthright citizenship to the Supreme Court outright. If the Trump administration succeeds in ending national injunctions, Kagan said it will require the lower courts to strike down cases one by one. She said those cases will all have the same outcome, not in the administration’s favor.
Sauer said he raised the issue of injunctions so it would be a “clean vehicle” for the high court, meaning it is free of complicating factors that would affect its judgment.
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Kagan was not impressed with that explanation.
“You’re ignoring the import of my question,” she interrupted. “I’m suggesting that in a case in which the government is losing constantly, there’s nobody else who’s going to appeal. They’re winning. It’s up to you to decide whether to take this case to us. If I were in your shoes, there is no way I’d approach the Supreme Court with this case.”
She added that “nobody is going to lose in this case,” as any parent whose kids are denied U.S. citizenship can go to court and point to the words of the 14th Amendment, which guarantees the right of citizenship to anyone born on U.S. soil.
“It‘s just, you’re going to have, like, individual by individual by individual, and all of those individuals are going to win,” Kagan said of the issue. She added that the only people who would lose are those who cannot afford to challenge the administration in court.
Sauer tried to keep up, but Kagan cut him off a second time.
“The tools that are provided to address hypotheticals like this…” he began.
Kagan interrupted, “This is not a hypothetical. This is happening out there, right? Every court has ruled against you.”
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