Since the beginning of the second Trump administration, federal judges across the nation, and many others who can simply read the text of the Constitution, have been of one voice: the president’s ahistorical effort to end birthright citizenship for the children of undocumented immigrants is unconstitutional. That conclusion, judges appointed by Democrats and Republicans have ruled, applies across the nation. Yet in a rush to judgment, acting at the behest of an administration that wants to make life miserable for noncitizens as quickly and rashly as possible, the Supreme Court on Friday failed to recognize that settled reality.
For more than a decade, going as far back as the presidency of Barack Obama, the Supreme Court has been grappling with what to do with nationwide, “universal” injunctions. At the time, attorneys general in Texas and other Republican-led states began joining as a group to challenge the president’s policies in the courts—from guidance on how to make bathrooms more inclusive for transgender students to protections for the undocumented parents of U.S. citizens. And federal judges in Texas aided this effort by issuing sweeping court rulings that would not only make the injunctions applicable in the complaining states, but everywhere. Joe Biden had a really hard time governing thanks to these nationwide rulings, many of them by Trump-appointed judges.
Several presidencies later, the Republican supermajority on the Supreme Court has finally settled the issue: These universal injunctions “likely exceed the equitable authority that Congress has granted to federal courts.” Yet in an attempt to bring order to this governance-by-litigation, the Supreme Court on Friday only made matters worse. And among its last orders of business before its summer recess, the justices ensured confusion and uncertainty will reign in all fifty states—by refusing to stop dead in its tracks Donald Trump’s patently unlawful executive order denying birthright citizenship to the children of noncitizens who may be here without legal status.
The 6-to-3 decision, dressed in legalese and procedural language, is shocking in that it makes no effort to even rule on the unconstitutionality of what Trump’s order, unprecedented in our nation’s history, attempted: a wholesale repudiation of the citizenship clause of the 14th Amendment to the Constitution, which for more than 150 years has guaranteed that everyone born in the U.S., independent of immigration status, is a citizen of this country. Six courts, across the board, had no problem doing that—swiftly blocking Trump from proceeding with this plan not long after he announced it on his first day in office.
You wouldn’t know any of this by reading the highly technical opinion written by Trump-appointed Justice Amy Coney Barrett, a former law professor to whom Chief Justice John Roberts assigned the watershed ruling. Instead, she studiously avoids what’s staring her in the face—by curtly noting that “the birthright citizenship issue is not before us.” In so doing, she’s casting aside worries, and the real-world effect, that the court’s ruling will cause: a country where only those who rush to court to challenge a clearly illegal order under our laws will have relief from it, and those who can’t—for various reasons, perhaps fear of getting rounded up, or even deported for not falling in line with the government’s wishes—will simply suffer in hiding or in silence.
Surprising no one, Trump reacted with glee, noting how litigants in “a very liberal state” or “liberal judges” won’t be able to “tie up a whole country for years” as a result of these injunctions. Barrett’s “decision was brilliantly written, from all accounts,” he added during a press briefing at the White House. He said the administration would also pursue actions that had been previously blocked by broader-than-necessary injunctions. “This should send a chill down the spine of every American,” Greg Casar, a Democratic congressman from Texas wrote on X. “Birthright citizenship was added to the Constitution at the end of the Civil War. It’s a basic idea: when you’re born in America, you’re an American. That’s what Trump is trying to take away.”
To be clear: Today’s ruling goes beyond birthright citizenship. Trump, or a future president, could order tomorrow that all his political enemies be rounded up and imprisoned without any process at all. Does that mean, under today’s ruling, that no one can sue to stop this flagrantly unconstitutional policy in its entirety? As Ketanji Brown Jackson puts it in a solo dissent: “The majority today says that, unless and until the other political rivals seek and secure their own personal injunctions, the Executive can carry on acting unconstitutionally with respect to each of them, as if the Constitution’s due process requirement does not exist.”
The only cold comfort in the ruling in Trump v. CASA, as this trio of related challenges to Trump’s worst order yet is known, won’t “take effect until 30 days after the date of this opinion.” But what good does that do? If living in a Republican-led state, which may already be hostile to undocumented people, a pregnant or new mother may simply wholly avoid trying to obtain public benefits that are rightly her child’s, let alone bring a lawsuit. And that’s because the bottom line from Barrett’s opinion is inescapable: The executive order is still the validly announced policy of the current government, and the Trump administration may even proceed with “developing and issuing public guidance about the Executive’s plans to implement the Executive Order.” The Supreme Court’s alternative—that people aggrieved across the country can file class-action lawsuits instead—can be an onerous, time-consuming, and expensive process that ignores how hard the justices have made it for people to band together to sue.
Why block the order nationwide right away, as a chorus of federal judges and appeals courts have done, rather than this piecemeal, balkanized, neo-Confederate approach where you’re only protected in the Democratic-led states, cities, and possibly areas where individual plaintiffs challenged the order? Why not declare what the law is—and what has been since Reconstruction—now, rather than wait for these cases to continue to play out needlessly in protracted litigation across the country? Is this the way to run a railroad of interconnected states where a uniform rule of law guides everyone? “I will not be complicit in so grave an attack on our system of law,” Justice Sonia Sotomayor, writing in dissent for herself and Jackson and Justice Elena Kagan.
Indeed, as she points out, the Supreme Court should’ve stared the unconstitutionality of Trump’s order head on rather than burying its head in the sand. The majority’s approach “would require creating a two-tiered scheme in which the Government’s recognition of some children’s citizenship status or eligibility for federally funded benefits would change based on whether a child resides in one of respondent States at any given moment,” she wrote. And there’s the reality that the Trump administration has a dim view of due process and believes it can deport anyone undocumented on sight, which may well leave newborn citizens stranded, stateless, or worse as they’re removed alongside their parents. “That unconscionable result only underscores why it is necessary, in some cases, for lower courts to issue universal injunctions,” she wrote.
Lurking behind these deep disagreements is Trump himself. Because if the second Trump era has shown us anything, it is that his administration and allies are engaged in an all-out war against judges—disobeying court orders, calling for their impeachment, and even suing an entire bench of judges for erecting rules the government dislikes. When Chief Judge James Boasberg in Washington found cause to believe that the Trump administration violated his orders in refusing to return planes carrying unlawfully renditioned migrants to El Salvador, and was moving towards holding officials in contempt, the Justice Department rushed to court to stop Boasberg’s inquiry—and two federal appeals court judges appointed by Trump did just that. Today, Boasberg’s work, and that of other judges working diligently to assess and invalidate Trump’s worst abuses, are being stymied by recalcitrance. And the Supreme Court just handed the president an important ax to hack at lower courts laboring overtime to put a check on clearly unconstitutional conduct.
The second Trump administration is not one that holds fast to laws and legal commitments that have been with us since the founding. Instead, it is one that plays fast and loose, and even misrepresents, what the Supreme Court itself does. Roberts’ conservative supermajority may believe it’s bringing order and stability to our laws, but they’re only creating more chaos. And Trump revels in that chaos. The high court’s refusal to put to bed the question of what our greatest amendment means today means the future is not certain. And in that future, as Sotomayor notes, “No right is safe in the new legal regime the Court creates.”
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