The Supreme Court’s ruling on Friday in Trump v. CASA is a disastrous moment for the American constitutional order. In a 6–3 decision, the court’s conservative justices curbed the judiciary’s power to prevent the executive branch from carrying out blatantly unconstitutional policies and orders.
The court effectively granted Trump three major victories in one stroke. First, the ruling severely narrowed federal judges’ power to temporarily halt the Trump administration’s actions in general, freeing the president from a major constraint on his policy agenda.
In response to lawsuits, lower courts had often issued what are known as “nationwide injunctions,” which blocked the executive branch from enacting a new policy while litigation continued in court. Those injunctions typically applied beyond the plaintiffs in a particular case. But Justice Amy Coney Barrett, writing for the court, held that courts had acted unlawfully by granting relief to anyone beyond the plaintiffs themselves. “Federal courts do not exercise general oversight of the executive branch; they resolve cases and controversies consistent with the authority Congress has given them,” she wrote. “When a court concludes that the executive branch has acted unlawfully, the answer is not for the court to exceed its power, too.”
Though procedural in nature, the real-world implications of the court’s decision are vast. It will generally require anyone harmed by the executive branch’s policies to hire lawyers and sue the government themselves to obtain relief. Barrett left open the possibility that federal courts could provide similarly broad relief through class-action lawsuits, which are allowed under Rule 23 of the Federal Rules of Civil Procedure. But some of her colleagues tipped their hand on this one as well.
Justice Samuel Alito, in a concurring opinion joined by Justice Clarence Thomas, said that the court must now police those types of lawsuits more heavily as well. He indicated that the court’s real concern is not the precise mechanism by which Trump administration policies are blocked but whether they are blocked by lower courts at all.
“Of course, Rule 23 may permit the certification of nationwide classes in some discrete scenarios,” Alito wrote in a concurring opinion. “But district courts should not view today’s decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23. Otherwise, the universal injunction will return from the grave under the guise of ‘nationwide class relief,’ and today’s decision will be of little more than minor academic interest.”
Trump’s second victory was on the merits. Friday’s ruling came in response to what may be the most egregiously unconstitutional policy of his second term thus far: his attempt to nullify the Fourteenth Amendment’s citizenship clause, which extends citizenship to virtually anyone born on U.S. soil. Thanks to the Supreme Court’s ruling, Trump’s order will partially go into effect in the next 30 days.
The clause’s text is clear and unambiguous: “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.” Congress and the states enacted it in 1868 to overturn Dred Scott v. Sandford, which held that people of African descent could never become citizens, and place questions of American citizenship beyond the democratic process.
To that end, the sole exception to its sweeping language was that it did not apply to anyone who was not “subject to the jurisdiction” of the United States. This was understood at the time to be a few narrow categories of individuals: children born to foreign diplomats stationed in the U.S. and Native Americans living in tribal lands outside the U.S. government’s control. The former category is so minute that no statistics exist on how many times it has come up. Congress erased the latter category in 1924 by extending citizenship to all Native Americans through the Indian Citizenship Act.
As a result, for the last 150 years, the prevailing legal consensus has been that anyone born in the United States is automatically a citizen of the United States. The Trump administration and a small minority of right-wing legal scholars have recently tried to claim that children of undocumented immigrants and migrants are not “subject to the jurisdiction” of the United States. Those arguments are weak and self-serving. They typically rely on willful misreadings of some legal sources and precedents while painfully ignoring contradictory evidence, of which there are ample amounts. No court has ever accepted them.
Nonetheless, Trump has sought to transmute them into legal reality. On the day he took office in January, he issued an executive order that required federal agencies to no longer recognize the U.S. citizenship of anyone born to noncitizen parents on U.S. soil, with the sole exception of children born to green-card holders. Though the order was not retroactive in effect, it would likely apply to tens of thousands of children born in the United States each year. Again, every lower court that considered the order found it to be unconstitutional and blocked it accordingly.
Justice Sonia Sotomayor, in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, denounced the executive order for flouting the undisputed law of the land for more than a century and a half. She pointed to the Supreme Court’s 1898 case Wong Kim Ark v. United States, where the justices held that a man born in San Francisco to Chinese immigrant parents was a U.S. citizen. “That holding conclusively settled any remaining dispute over the Citizenship Clause’s meaning,” Sotomayor said. “Since then, all three branches of government have unflinchingly adhered to it.”
Barrett, writing for the majority, claimed that the court had not reached the merits of the case in Friday’s ruling. Of Sotomayor’s dissent, she said that her colleague’s analysis “is premature because the birthright citizenship issue is not before us” and that “we take no position on whether the dissent’s analysis is right,” referring to the court as a whole.
The net effect of the court’s ruling, however, is to allow Trump’s executive order to go into effect in 30 days. Perhaps the court wanted to dispose of nationwide injunctions in a case where they seemed most justified—thereby constraining lower court judges from attempting to issue nationwide injunctions in less extreme cases—and still plan on striking down the order on the merits later. The sole evidence to support this interpretation is that it left intact the lower court’s order that blocked federal agencies from “developing and issuing public guidance” on the executive order for the next 30 days.
Unless the Supreme Court takes up a challenge to the executive order’s merits in the next 30 days, however, it will go into effect except for the plaintiffs who have received their own relief in the lower courts. In this particular case, those plaintiffs include 22 states where it cannot take effect. Absent further intervention by the court—which is now entirely dependent on the actions of third parties—there will be two citizenship clauses by this time next month: one for the states challenging the executive order and one without birthright citizenship for the other 28 states.
Sotomayor noted that this will bring immense practical difficulties and consequences in service of a blatantly unconstitutional executive order. Affected children in one state will be able to get Social Security numbers at birth, while children in another state will not. What happens, Sotomayor asked, when children from the latter states move into the former? “No matter how it is done, discarding the nationwide status quo of birthright citizenship would result in chaos,” she warned.
Trump’s third victory was over the separation of powers itself. Congress, which is controlled by Republicans loyal to him, is effectively moribund as a coequal branch of government. The White House has asserted the power to freeze congressionally appropriated spending for any reason or none at all, to dismantle and disband congressionally established agencies at a whim, and to order the military to preemptively attack countries without congressional authorization. In response, Republican majorities in the House and Senate have largely shrugged.
Federal courts have been a more reliable check on presidential power over the last six months. Trump has responded by defying court orders on multiple occasions, especially in immigration cases, and publicly denouncing judges who rule against him. The Supreme Court initially put up some resistance by ordering the administration to halt some Alien Enemies Act deportations to El Salvador earlier this year, which it had done in apparent defiance of court orders. It also enjoined some executive orders while letting others take effect, as is more normal.
Friday’s ruling sharply tips the balance toward Trump. Whenever the executive branch appealed nationwide injunctions to the Supreme Court in recent years, it has sought to defeat the injunctions on the merits by arguing that the policies are lawful. For birthright citizenship, the Trump Justice Department took a different tack: It appealed only the nationwide reach of the lower court’s injunction, leaving intact the ruling for the plaintiffs themselves.
“Why?” Sotomayor asked in her dissent. “The answer is obvious: To get such relief, the government would have to show that the order is likely constitutional, an impossible task in light of the Constitution’s text, history, this court’s precedents, federal law, and executive branch practice. So the government instead tries its hand at a different game.
“The gamesmanship in this request is apparent and the government makes no attempt to hide it,” she continued. “Yet, shamefully, this court plays along. A majority of this court decides that these applications, of all cases, provide the appropriate occasion to resolve the question of universal injunctions and end the centuries-old practice once and for all.”
“Of all cases” only hints at the absurdity of the court’s discretion here. Conservative justices have complained openly about nationwide injunctions for roughly a decade now. While they upheld them to restrain Trump on multiple occasions in his first term, the court took no holistic action when right-wing judges in Texas abused them to block virtually everything the Biden administration tried to do over the last four years. Only now, six months into Trump’s second presidency, has the conservative majority finally decided to do something about them in response to the most flagrantly unconstitutional executive order in recent history.
“No right is safe in the new legal regime the court creates,” Sotomayor wrote. “Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship.” This may be somewhat optimistic on her part: It is hard to imagine that the conservative majority would act so ploddingly or meekly if President Gavin Newsom federalized the National Guard in every state and sent it door-to-door to collect everyone’s AR-15 rifles.
The high court’s approach to executive power is driven too much by the president’s party affiliation to assume otherwise. When the Biden administration sought to forgive up to $20,000 for federal student loan debtors, the justices bent over backward to welcome a plaintiff with standing to stop him. When oil companies and their GOP allies wanted to narrow the Environmental Protection Agency’s ability to regulate carbon emissions, the court let them challenge a long-defunct power-plant regulatory scheme that had never gone into effect to achieve their desired outcome. The major-questions doctrine, which allows courts to nix regulatory actions if the judges think Congress did not “speak clearly” enough to allow them, has yet to be applied by the Supreme Court to a Republican president.
Jackson criticized the court in a decision earlier this month for the troubling ways it uses its discretion. She warned in a solo dissent on Friday that the court’s ruling in CASA would also be highly destructive. “In essence, the court has now shoved lower court judges out of the way in cases where executive action is challenged, and has gifted the executive with the prerogative of sometimes disregarding the law,” she wrote. “As a result, the judiciary—the one institution that is solely responsible for ensuring our republic endures as a nation of laws—has put both our legal system, and our system of government, in grave jeopardy.”
In response to Jackson’s overall arguments, Barrett claimed that her colleague “decries an imperial executive while embracing an imperial judiciary,” drawing the absurd conclusion from this entire chain of events that the lower courts, not the president, are the real threat to the American constitutional order. “No one disputes that the executive has a duty to follow the law,” Barrett argued. “But the judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the judiciary from doing so.” If that is the case, then neither the law nor the judiciary will matter for that much longer.
The post The Supreme Court Just Gave Trump Three Victories in One Ruling appeared first on New Republic.
