Yesterday, during an oral argument spanning nearly two and a half hours, the Supreme Court justices grilled the newly installed Solicitor General D. John Sauer over the Trump administration’s request that it be allowed to enforce a flagrantly unconstitutional executive order ending birthright citizenship. Sauer repeatedly refused to say how the case could be swiftly resolved. Instead, he suggested that President Donald Trump may wish to enforce the order to the hilt unless and until the justices themselves—no one else—tell him to stop.
Still, Sauer may walk away with a narrow win.
The central dispute yesterday morning was not about the birthright-citizenship order itself. Instead, it was about the relief that plaintiffs ought to get assuming that the order is unconstitutional. It’s a procedural question. At times, that lent the proceedings a weirdly artificial air. President Trump is moving to deny citizenship to countless newborns and we’re fighting about whether courts can say no?
Well, yes. And for good reason. The argument yesterday was about the power of lone federal-court judges to enter what are called “universal” or “nationwide” injunctions. These injunctions prevent the government from enforcing a policy not just on the plaintiffs who filed a given suit, but on anyone and everyone in the United States. As recently as the administration of President George W. Bush, such universal injunctions were very rare. Today, they are a more or less standard judicial response to perceived presidential overreach.
Universal injunctions have a distinctly partisan cast. When the president is a Democrat, they are the tools of right-wing judges. During Joe Biden’s presidency, for example, judges in Texas entered universal injunctions against COVID-vaccine mandates, the cancellation of $430 billion in student-loan payments, and expanded protections for transgender students. Democrats cried foul play.
Under Republican presidents, the valence shifts. Then, it’s disproportionately liberal judges who deploy universal injunctions. The second Trump administration has already been hit with a couple dozen nationwide injunctions against its actions, including its ban on transgender service members, its cuts to university research funding, and its deportation of gang members under the Alien Enemies Act. And also, of course, the birthright-citizenship executive order.
Now it’s Republicans who are outraged. “STOP NATIONWIDE INJUNCTIONS NOW, BEFORE IT IS TOO LATE,” Trump wrote on Truth Social. “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!”
I don’t say this often about Trump’s Truth Social posts, but he has a point. As the University of Chicago law professor Samuel Bray and I argued in this magazine back in 2018, universal injunctions can’t be squared with the traditional judicial role of the courts, which is to resolve disputes between parties, not to protect theoretical parties who aren’t in court at all. I elaborated on the point in testimony I gave to the Senate Judiciary Committee in 2020:
They enable opportunistic behavior by politically motivated litigants and judges, short-circuit a process in which multiple judges address hard legal questions, and inhibit the federal government’s ability to do its work. By inflating the judicial role, they also reinforce the sense that we ought to look to the courts for salvation from our political problems—a view that is difficult to square with basic principles of democratic self-governance.
Not long after Trump signed the birthright-citizenship order, about half the states and some nonprofit groups sued. Very quickly, several judges blocked the order from taking effect.
The judges’ rationale was straightforward: The order is illegal, and wildly so. It contradicts the text of the Fourteenth Amendment, which says that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” And it violates case law from the Supreme Court, too, including an 1898 decision called Wong Kim Ark. The judges were appalled: “I’ve been on the bench for over four decades,” one wrote. “I can’t remember another case where the question presented is as clear as this one is. This is a blatantly unconstitutional order.”
For all of the judges who heard the challenge, the question of the order’s legality was not hard. The problem is determining what they can do about it. Three blocked it nationwide. One New Hampshire judge blocked it only in New Hampshire.
Sauer wants the Supreme Court to adopt a categorical rule that universal injunctions—or, more precisely, injunctions where relief extends to non-parties to the case—are never okay. But he had trouble answering a series of questions about speed.
Justice Elena Kagan, for example, acknowledged that “there are all kinds of abuses of nationwide injunctions.” But without a nationwide injunction, she asked, how could this case get quickly resolved for everyone whose citizenship might be called into question during the pendency of litigation? “If one thinks that it’s quite clear that the EO is illegal, how does one get to that result, in what timeframe, on your set of rules, without the possibility of a nationwide injunction?”
Sauer said that the plaintiffs could try to certify a class action. Fine, Kagan said. Would he stipulate that a class action would be appropriate in this case? Sauer said no, and insisted on preserving the right to challenge class certification if he won on his core argument. Justice Amy Coney Barrett was incredulous at Sauer’s refusal to make a tactical concession: “Are you really going to answer Justice Kagan by saying that there’s no way to do this expeditiously?”
Kagan went further. Assume, she said, that the Second Circuit—the court of appeals covering New York, Connecticut, and Vermont—held that the citizenship order was unconstitutional. Would the Trump administration follow that ruling, even in the absence of an injunction, in those three states?
Again, Sauer refused to commit. “Generally, our practice is to respect circuit precedent within the circuit, but there are exceptions to that.” He reserved the right to apply a court of appeals decision only to the parties who filed suit.
Now it was Kagan’s turn to be incredulous. “You’re not willing to commit to abiding by the Second Circuit’s precedent. Suppose that there’s a single person who brings a suit and it gets all the way up to us after three or four or five years.” Then the Supreme Court rules in that person’s favor and holds that “your EO is illegal. Is that only going to bind the one guy who brought the suit?”
On this, Sauer finally relented: “That would be a nationwide precedent that the government would respect.” Kagan was not mollified. “For four years, there are going to be, like, an untold number of people who, according to all the law that this Court has ever made, ought to be citizens who are not being treated as such.” Sauer had no good answer to that one.
The colloquy, and a similar follow-up with Barrett, was fascinating not only for what it said about this case, but for what it indicates about the Trump administration’s attitude toward the courts. At least for the administration’s top priorities, Sauer suggested that the executive branch would pay much less heed to lower courts than previous administrations—and that it would take a ruling from the United States Supreme Court to prevent it from breaking the law.
The plaintiffs also faced tough questioning. Their lawyers—one for the state of New Jersey, representing a group of blue states, and the other on behalf of two civil-rights groups—both acknowledged that universal injunctions should be rare. But they had two arguments for why injunctions were acceptable in this case.
First, the plaintiffs said that they needed a broad injunction to give them complete relief for their injuries. By way of analogy, think of a lawsuit against a power plant that’s spewing pollutants. If a plaintiff wins, she might secure an injunction to stop the plant from operating. That would incidentally benefit lots of people who live near the power plant, even if they aren’t parties to the case.
The same logic applied here, the plaintiffs said. New Jersey’s lawyer, Jeremy Feigenbaum, argued that the executive order would inflict injury on the states because it would require them to abide by burdensome and confusing rules governing citizenship when administering a range of state programs. Confining the injunction to the plaintiff states wouldn’t solve that problem. Why? Because people move.
Feigenbaum used the example of someone moving from Philadelphia to Camden and back again: “It’s a very porous part of the country.” Does citizenship toggle on and off? How is a state supposed to manage that uncertainty? Only an injunction that extended to all states could protect New Jersey from “that sort of chaos on the ground.”
Some of the justices seemed receptive to the argument, especially Barrett. Chief Justice John Roberts, too, used his opening question to emphasize that giving a plaintiff complete relief will sometimes require a pretty sweeping injunction. That may be enough to sustain the injunction here.
If that’s the argument, however, then this is not a true universal injunction. Universal injunctions are those that are not necessary to provide complete relief to the plaintiffs, but are needed to protect non-plaintiffs. Here, New Jersey says that it and the other blue states aren’t trying to protect the non-plaintiff red states. They’re trying to protect themselves, and they need an order that covers the whole country to get that relief.
Which takes us to the plaintiffs’ second argument. Arguing for two civil-rights groups, Kelsi Brown Corkran said that true universal injunctions ought to be available in narrow circumstances, in particular when a government policy infringed on “fundamental rights” and when there were doubts about “the legal and practical availability of relief to similarly situated parties.” (Corkran and I are old friends, and I participated in an early moot court for her in this case.) She offered the example of when the Trump administration made a midnight attempt to deport Tren de Aragua members to El Salvador.
Justices Sonia Sotomayor and Ketanji Brown Jackson were both attracted to an approach along those lines. But several other justices, including Justice Samuel Alito, were skeptical. “All Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right and I can do whatever I want. Now, on a multimember appellate court, that’s restrained by one’s colleagues. But the trial judge sitting in the trial judge’s courtroom is the monarch of that realm,” Alito said. It’s tempting, Alito continued, for him or her to say, “This is unlawful and I’m going to enjoin it and I’m so convinced I’m right so I’m not going to stay the injunction.” Kagan and Justice Neil Gorsuch both voiced similar concerns.
What’s likely to happen? As always, predicting Supreme Court decisions from oral argument is treacherous. But the swing justices on the Supreme Court—here, Justices Brett Kavanaugh and Barrett—both signaled that they’re looking to rein in universal injunctions. The only question is how hard they’ll yank.
Sauer did his case no favors by refusing to give an inch on questions pertaining to class certification and the administration’s willingness to abide by circuit precedent. Nonetheless, Kavanaugh and Barrett were sympathetic to Sauer’s argument that the proper way to get classwide relief is to certify a class, not by pushing for a universal injunction. If they hold to that view, Sauer may get what he asked for: a categorical bar on universal injunctions. That would be a big win for the executive branch.
At the same time, some of the justices suggested that supplying complete relief in this case might require an unusually broad injunction. In particular, Barrett hinted that the right approach might be to send the case back down so that a judge could decide whether providing complete relief to New Jersey and the other blue states might support an injunction that covered the whole country. Alternatively, or in addition, the Court may clarify that plaintiffs can secure preliminary relief on behalf of a class even before that class is formally certified. If that were to happen, I’d expect the plaintiffs to promptly get relief on behalf of a very broad putative class.
In other words, the Trump administration may win the fight over universal injunctions—but lose the fight over this injunction.
That, of course, would leave unresolved the constitutionality of the birthright-citizenship order. It’s hard to say how long it will take before that question is squarely presented. Much depends on what the Supreme Court says and what the lower courts do. In the meantime, however, my best guess is that the order will never be allowed to take effect.
What will the Supreme Court say when it eventually rules on the merits? On that, it was hard to read the justices as anything but deeply skeptical of the Trump administration’s argument. Barring truly extraordinary events, the Court will one day hold that the birthright-citizenship order is unequivocally unconstitutional. The only question is when its obituary will be written.
The post The Birthright Citizenship Case Isn’t Really About Birthright Citizenship appeared first on The Atlantic.
