It is often difficult to persuade anyone other than lawyers to care about the more technical, procedural minutiae of Supreme Court decisions. But Thursday’s oral argument in three Supreme Court cases challenging President Trump’s efforts to restrict birthright citizenship is a powerful example of how such technicalities can sometimes be even more important than the substantive legal question the justices are purportedly answering.
The Trump administration is asking the justices, in effect, to let the president’s (almost certainly unlawful) limits on birthright citizenship go into effect across most of the country without actually upholding them. If a majority of the court agrees, it will not just lead to widespread chaos and uncertainty over which babies born in the United States to immigrant parents are and are not citizens; it will also make it much harder for courts to halt any unlawful government action on a nationwide — or even statewide — basis. Such a holding would be a self-inflicted judicial wound, one from which the American legal system, and perhaps the rule of law itself, will not quickly recover.
The substantive legal question at the heart of the three cases the court heard on Thursday is whether Mr. Trump can deny citizenship to children born in the United States to at least some noncitizen immigrant parents. Three lower courts (in Maryland, Massachusetts and Washington State) all said no, he could not — and issued what are known as “nationwide” injunctions. Such rulings barred the federal government from relying upon Mr. Trump’s executive order to deny citizenship not just to children born to the named plaintiffs, but also to those born in the United States to any immigrant parent.
In a bit of legal chicanery, the Trump administration is not asking the Supreme Court to hold that the executive order is lawful. Rather, it’s seeking relief it characterizes as more “modest” but which would be, in reality, much broader: It is asking the justices to do away with the use of nationwide injunctions. If the court agrees, lower federal courts could only block government officers from acting against specific plaintiffs and no one else — unless they successfully bring their own lawsuits or the Supreme Court conclusively resolves the question. Not only would filing lawsuits challenging the same federal policy in each federal court across the country take a lot of time and money, but such a ruling would also leave open the possibility that while these cases progress, children born to immigrants could be denied citizenship based on any number of random factors: the rules in the state in which they are born, the status of their parents’ lawsuits and even the date on which they entered the world.
The massive real-world implications of such a technical ruling wouldn’t be limited to birthright citizenship. Many of the dozens of injunctions federal courts have issued against other unlawful behavior by the Trump administration are also “nationwide.” Small groups of plaintiffs have been able to, among other things, halt the Department of Government Efficiency’s access to Americans’ Social Security data, block mass firings by government agencies and require federal agencies to spend and disburse money Congress has allocated. If the administration successfully convinces the Supreme Court to strip federal district courts of their ability to rule on a nationwide basis, the court wouldn’t formally be upholding what Mr. Trump is doing in any one of those cases, but it would be kneecapping many of the current (and future) attempts to block him.
Nationwide injunctions are, to be sure, imperfect. Critics argue that they tend to ratchet up the stakes of individual lawsuits, they can often short-circuit the ordinary percolation of legal issues through the lower federal courts and, during ordinary times, they run the risk of dragging the lower federal courts more directly into nationwide policy disputes. In a world in which federal courts could trust the executive branch to go out of its way to comply with court orders, a request to eliminate nationwide injunctions might, indeed, seem like a “modest” response.
But these aren’t ordinary times, and this executive branch can’t be trusted. Consider, in this regard, litigation over the government’s efforts to conduct mass summary removals of Venezuelan nationals under the Alien Enemies Act. Initially, the American Civil Liberties Union successfully obtained a single nationwide ruling blocking those efforts against anyone who might be subject to the policy. But on April 7, the Supreme Court ruled that challenges to the Trump administration’s uses of that statute had to be brought on a case-by-case (or at least district-by-district) basis. Practically overnight, the government started moving detainees into districts that didn’t yet have court orders blocking the use of the act and out of districts that did. It was a transparently cynical attempt to use the act without either a court order saying it could or in overt defiance of a court order saying it couldn’t. None of that would have been necessary if the A.C.L.U. had been allowed to bring a single nationwide suit. This week, the question for the justices in the birthright citizenship cases is not whether they are going to reaffirm the 14th Amendment’s guarantee of citizenship, but whether they’re going to undermine it indirectly — through a ruling disguised as a technical, procedural holding that takes away a tool that has been used consistently over the past decade to rein in presidents of both parties. If the justices side with the Trump administration, they will end up making it that much harder for lower federal courts to stop systemic bad behavior by this or any future administration — even when everyone agrees it is lawless.
Stephen I. Vladeck is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”
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