On paper, an oral argument in which not even Samuel Alito wants to argue for the meat of what the Trump administration is trying to do,
Amy Coney Barrett utters an incredulous “really,” and Elena Kagan subjects the solicitor general to a furious line of questioning — followed by
Neil Gorsuch saying Kagan asked his questions for him — is one that is not going well for the government.
Except it’s not that simple. At an abruptly scheduled hearing on Thursday, the justices had not been asked to rule on the substance of
President Donald Trump’s day-one executive order purporting to erase birthright citizenship for anyone who didn’t have at least one U.S. citizen or green-card-holding parent. Rather, the question was whether district court judges could each block
Trump’s order for the whole country. The argument made clear the administration would have cleanly lost on
the constitutional question. Instead, Trump and his people’s satanic talent for exploiting his opposition’s procedural weakness — and an instinctive sense for scrambling usual ideological lines — seemed to flummox the justices, and by the end of the day, it was not at all clear what would happen.
Solicitor general John Sauer wasn’t wrong when he started out his argument calling nationwide injunctions “a bipartisan problem,” even if almost everything else he said was false. He insisted that such injunctions “prevent the percolation of novel and difficult legal questions,” but there is nothing novel or difficult about birthright citizenship — which is spelled out in the 14th Amendment and has repeatedly been reinforced by generations of Supreme Court decisions — unless your goal is to toss out the Constitution so you alone get to decide who deserves the privileges of citizenship. (And if you don’t have those privileges, the administration separately claims, you also don’t deserve due process.) The government argues that the citizenship clause only applied to “children of former slaves,” even though in debating the amendment, Congress considered and rejected language that would be that narrow, in favor of the sweep of what we have now.
To argue about procedure was to set a clever trap, because probably the people most irritated that cherry-picked district court judges are ruling for the whole country are the nine justices. And this tool is both abused by and bedevils both sides, though not quite symmetrically. When the
Harvard Law Review crunched the numbers last year, it turned out that 92 percent of nationwide injunctions during Trump’s first term were issued by judges appointed by Democrats. During the Biden administration, it became even more polarized — 100 percent of the injunctions came from Republican-appointed judges.
Most infamously, that included Judge Matthew Kacsmaryk, whose Amarillo, Texas, courtroom was often the first stop for fellow movement conservatives to challenge liberal policies, issuing a 2023 order undoing the long-standing FDA approval of a pill used in medication abortion. (The Supreme Court undid it.) This time around, largely due to the Trump administration’s lawless executive orders, more nationwide injunctions and temporary restraining orders were issued in February of his year than the first three years of the Biden administration. Judges in Massachusetts, Maryland, and Washington State had blocked the birthright-citizenship executive order, including in response to claims brought by pregnant women seeking asylum whose future children would be denied citizenship to which they’re constitutionally entitled.
And yet, trying to strip newborns of their constitutional rights happens to be one of the few instances in which a nationwide injunction seems indisputably necessary. If a judge’s ruling only applied to a narrow jurisdiction, a baby’s citizenship status would depend on whether they happened to be born within those lines. Arguing for the states who challenged the executive order, New Jersey solicitor general Jeremy Feigenbaum pointed out that it would be totally unworkable for states to administer benefits that required a Social Security number, or in places where a birth certificate has been enough to prove citizenship. Even Brett Kavanaugh, who didn’t seem unsympathetic to the administration’s side, sounded skeptical when Sauer told him that federal officials would verify the immigration status of the parents before recognizing a newborn’s documents. “For all the newborns?” Kavanaugh said. “Is that how it’s going to work?” Equally unworkable would be demanding that each individual newborn hire a lawyer or bring a claim to block it from going into effect in the first place.
Recognizing how implausible this is, some of the conservatives floated class-action lawsuits instead of demanding nationwide injunctions. It sounded good, except for one thing. “When Kavanaugh and Gorsuch say the answer is class actions, I want to bang my head against the wall,” said Georgetown law professor Steve Vladeck after the argument. That’s because the same justices and their allies have over the years made it nearly impossible to bring class-action lawsuits. Chief Justice John Roberts said, optimistically, that maybe nationwide injunctions from single justices weren’t necessary because the Court itself could get its act together pretty fast, like it purportedly did in the TikTok case. This, too, was a misdirection. As NYU law professor Melissa Murray dryly
pointed out, the Court can also drag it out with the best of them, as it did in the criminal cases against Trump, until it ruled he had presidential immunity from criminal prosecution for “official acts.”
It fell on Kagan and Ketanji Brown Jackson to cut through the obfuscation. If a lower court judge was powerless to block an unconstitutional law for the whole country, Kagan pointed out, and only the party that loses a case can appeal it, the Court might never get the chance to say the executive order was constitutional. “It’s up to you to decide whether to take this case to us,” she said to Sauer. “If I were in your shoes, there is no way I’d approach the Supreme Court with this case.” Instead, the government wants to force “individual by individual by individual” into court, “and all of those individuals are going to win. And the ones who can’t afford to go to court, they’re the ones who are going to lose. Again, this is not a hypothetical. This is happening out there, right?” It is.
Jackson was even plainer. “If the government is saying no lower court can completely enjoin it, it actually means that the government just keeps on doing the purportedly unlawful thing,” she said, “and it delays the ability for this court to reach the underlying issue.” Kagan chimed in again: “So for years, there are going to be an untold number of people that this Court has said should be citizens who will not be treated as such.
It was an echo of the equally lawless “deport first, due process maybe later” immigration operations the administration has been conducting. And if the Supreme Court doesn’t figure out a way to swat it down, with or without ruling on the nagging issue of nationwide injunctions, the Trump administration might just get away with it.
