If anything was clear during Wednesday’s Supreme Court oral argument in the birthright citizenship case, Trump v. Barbara, it’s that President Trump is going to lose. The justices’ questions were skeptical enough to suggest that somewhere between six and eight of the justices will hold that Mr. Trump’s executive order purporting to limit birthright citizenship is unlawful, whether because it violates an immigration statute Congress enacted in 1940 and updated in 1952, the citizenship clause of the 14th Amendment, or both.
In retrospect, and despite efforts by some right-wing commentators and scholars to muddy the waters, this has always been an open-and-shut case under almost any approach to constitutional and statutory interpretation.
What may get lost in the discussion of such an outcome is the uniquely twisted procedural path that this case took to the Supreme Court — one that, along the way, made it much harder for lower federal courts to block lawless executive action. That distinction won’t end up mattering here; whatever the Supreme Court ultimately decides about birthright citizenship will necessarily have nationwide effect.
The real question we should be asking is whether this case will come to be the exception going forward, not the rule — and whether the government will, in the future, simply stop appealing its lower-court losses all the way to the nation’s highest court.
Recall that the Supreme Court first tackled the birthright citizenship executive order last spring. Initially, the issue the justices took up was not whether Mr. Trump’s order was lawful; it was whether the three Federal District Courts that had blocked its implementation had exceeded their authority by having their rulings apply on a nationwide basis. In a 6-to-3 decision handed down in June, the Supreme Court’s Republican appointees all said “yes,” and substantially limited the ability of Federal District Courts to issue so-called nationwide injunctions.
In May, during the first oral argument, addressing three consolidated cases, Justice Elena Kagan highlighted an alarming possibility that such a ruling would create: that the government would lose a bunch of cases brought by individual plaintiffs but never appeal its losses, so that it could continue to enforce a patently unlawful policy against anyone who didn’t bring her or his own lawsuit to challenge it.
An injunction issued by a Federal District Court in Los Angeles, for instance, wouldn’t directly benefit anyone other than the specific individuals who had brought that particular lawsuit. Without an appeal, the district court’s ruling wouldn’t indirectly benefit anyone, either; unlike decisions by the Supreme Court and federal appeals courts, district court rulings don’t have precedential force in other cases.
Justice Neil Gorsuch pressed John Sauer, the U.S. solicitor general, to do something extraordinary: publicly commit to bringing the merits of the birthright citizenship issue back to the Supreme Court if and when the government lost on remand. Mr. Sauer, understanding the costs of saying he couldn’t or wouldn’t, agreed to do so — a concession Justice Amy Coney Barrett memorialized in her majority opinion.
To his credit, Mr. Sauer was true to his word. When lower courts responded to the Supreme Court’s narrowing of nationwide injunctions by finding other ways to block the birthright citizenship executive order, he dutifully brought the case back to the justices. Though the Trump administration has been remarkably selective about which lower-court losses it has chosen to appeal to the Supreme Court, here, Mr. Sauer’s hand was essentially forced. And rather than leaving lower court rulings intact, the justices — who clearly wanted the opportunity to provide a nationwide answer on the merits — took up the case, heard Wednesday’s oral argument and will deliver that answer in the next few months.
But the justices didn’t ask Mr. Sauer to commit to appealing — and he made no promises to appeal — any other district court losses, of which there have been quite a few. Even if we don’t count immigration detention cases, the Trump administration has now been on the short side of coercive lower-court rulings in at least 150 cases.
This gap has led to what the University of Arizona constitutional law professor Andrew Coan calls “the appellate void” — the very real possibility that the government will frustrate the normal appeals process by refusing to appeal district court losses in individual cases. Thanks to the rise and fall of nationwide injunctions, that void became a serious concern only since Mr. Trump returned to office.
In the nine months since the Supreme Court’s ruling constraining nationwide injunctions, we’ve seen how difficult it has been to challenge everything from immigration detention to the conduct of federal agents in and around Minneapolis, to the administration’s summary cancellations of federal programs and grants authorized by Congress.
Many of these types of cases have two things in common, both of which distinguish them from the birthright citizenship example. First, the variations in individual cases make it difficult, if not impossible, to certify a nationwide (or even statewide) class action, where one lawsuit could be brought on behalf of all parties affected by the government’s alleged wrongdoing. A class action is a great legal tool when everyone has the same basic claim. It is less so when the facts of individual cases differ. Second, the Supreme Court doesn’t normally compel the government to appeal its losses.
When the Supreme Court rules against the Trump administration’s attempt to constrict birthright citizenship, we should applaud that result. We must not lose sight, however, of the opportunities the court won’t have to rein in the administration when it overreaches — and the court’s own responsibility for creating such an increasingly dangerous reality.
Stephen I. Vladeck writes the One First Supreme Court newsletter and 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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