Justices Appear Divided Over Whether to Curb Nationwide Injunctions

WASHINGTON — The Supreme Court appeared to be divided along ideological lines Thursday as it considered whether to remove the ability of lower court judges to issue nationwide injunctions.

During a highly unusual oral argument this late in the term, the conservative justices seemed to believe that judges at the district court level may be overstepping their authority by not limiting the scope of their actions to the specific parties before them.

But their liberal counterparts, including Justice Ketanji Brown Jackson, wondered if such a restriction would hamstring the courts, forcing them, as she said, to ignore the “collateral consequences” of cases they’re being asked to decide.

The consolidated cases that were the subject of two-and-a-half hours of oral argument before the justices on Thursday were Trump v. CASA, Inc., Trump v. Washington, and Trump v. New Jersey.

All three cases stem from President Donald Trump’s effort to redefine birthright citizenship under the 14th Amendment.

In an executive order signed just hours after he took the oath of office on Jan. 20, Trump declared that the longstanding premise that U.S. citizenship is immediately conferred to anyone born here, was null and void.

Specifically, Trump sought to designate two specific populations to whom the idea of ”birthright citizenship” does not apply — those born in the United States whose mothers are unlawfully present in the United States and whose fathers are neither lawful permanent residents nor citizens; and those born in the United States whose mothers are lawfully but temporarily present in the United States and whose fathers are neither lawful permanent residents nor citizens. 

Within hours of Trump signing the executive order, several individuals, organizations and states sued to halt its enforcement, arguing that it violated the 14th Amendment and statutory law. 

Three separate district courts ultimately entered nationwide preliminary injunctions preventing the government from enforcing the EO anywhere in the United States while the cases moved forward. 

Though the Trump administration appealed those injunctions, the courts of appeals associated with those courts denied its petitions.

The White House then filed an emergency petition with the Supreme Court, asking the court to limit the injunctions to the parties within the jurisdiction of the district court, so that it could enforce the executive order against individuals outside those jurisdictions.

Thursday’s hearing then, was unusual in a number of respects. First, it fell outside the calendar window — October through April — in which the justices ordinarily hear oral arguments.

In addition, there was the fact the court was hearing an oral argument on an emergency application, something it would normally handle behind closed doors.

Finally, there was the bifurcated nature of the case — on the one hand asking the high court to eliminate nationwide injunctions, while on the other hand, effectively forcing it to deal with the birthright citizenship question. 

The decision on the nationwide injunctions alone could have enormous consequences, particularly in regard to Trump’s ability to advance his agenda by executive order. 

Trump himself weighed in on the magnitude of the case Thursday morning in a post on Truth Social while he continued to travel in the Middle East.

“Big case today in the United States Supreme Court,” he wrote. “Birthright Citizenship was not meant for people taking vacations to become permanent Citizens of the United States of America, and bringing their families with them, all the time laughing at the ‘SUCKERS’ that we are!”

Trump went on to complain that the United States of America is the only country in the world that bestows birthright citizenship “for what reason, nobody knows.”

“We are, for the sake of being politically correct, a STUPID Country but, in actuality, this is the exact opposite of being politically correct, and it is yet another point that leads to the dysfunction of America,” he continued. 

“Birthright Citizenship is about the babies of slaves. As conclusive proof, the Civil War ended in 1865, the Bill went to Congress less than a year later, in 1866, and was passed shortly after that,” Trump said. “It had nothing to do with Illegal Immigration for people wanting to SCAM our Country, from all parts of the World, which they have done for many years. 

“It had to do with Civil War results, and the babies of slaves who our politicians felt, correctly, needed protection,” he said. “Please explain this to the Supreme Court of the United States.” 

Trump isn’t entirely wrong in his assertion.

Birthright citizenship is the legal right to citizenship afforded to anyone born on U.S. soil regardless of his or her parents’ immigration status.

There are some exceptions, including children born to foreign diplomats or to members of any hypothetical occupying military force are exceptions. 

The right stems from the citizenship clause of the 14th Amendment, which was adopted in 1868 to clarify the post-Civil War status of formerly enslaved people. 

It states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Courts have interpreted the clause to mean that being born on U.S. soil — even to undocumented immigrants — guarantees American citizenship to the child.

Trump also isn’t the first person to try to do away with that right to citizenship or to base the effort on the claim that the children of undocumented immigrants aren’t “subject to the jurisdiction” of the United States.

In the 1890s, for instance, anti-Chinese exclusionists hoped to challenge the right to birthright citizenship enshrined in the 14th Amendment. 

In August 1895, they filed a lawsuit against a customs official aimed at keeping Wong Kim Ark, a laborer who’d been born in San Francisco to Chinese immigrants, from reentering the country after a trip to China.

Wong sued, and in 1898, the Supreme Court ruled that, because he had been born in the U.S., Wong was subject to U.S. jurisdiction and could not be denied citizenship. 

The notion that the children of unauthorized immigrants are “subject to the jurisdiction” of the U.S. was affirmed again in 1983, in the Supreme Court decision in the case Plyler v. Doe, in which the court struck down a state statute denying funding for education of undocumented immigrant children.

Justice Brett Kavanaugh responded to the concerns of his liberal colleagues on Thursday by wondering whether the nationwide injunctions were needed when plaintiffs have long had the ability to file class action lawsuits.

But Justices Elena Kagan and Sonia Sotomayor suggested such a position is beside the point in the case at hand.

Both said theyfirmly believed that Trump’s executive order is unconstitutional on its face and that striking down the nationwide injunctions would allow the president to enforce an unconstitutional order, potentially for years.

“This case is very different from a lot of our nationwide injunction cases,” Kagan warned.

“As far as I see it, this order violates four Supreme Court precedents,” Sotomayor told Solicitor General D. John Sauer, who was representing the administration.

Sauer responded by arguing the use of nationwide injunctions “is a bipartisan problem that has now spanned the last five presidential administrations.” 

Among the problems they create, he said, is they prevent the “percolation of novel and difficult legal questions,: and encourage judicial forum shopping.”

If this weren’t enough, Sauer said, the push for nationwide injunctions by plaintiff attorneys forces judges to “make rushed, high stakes, low information decisions.”

Sauer said that there are currently 40 nationwide injunctions in place blocking some of Trump’s initiatives, many of which test the limits of presidential power under the Constitution including his elimination of whole agencies and staff positions, his rescission of federal funding bestowed by Congress … and the question of birthright citizenship itself.

While the liberal justices hammered hard on the birthright citizenship question, seeming to garner some support from Justices Kavanaugh and Amy Coney Barrett, it was unclear whether the current case will resolve that issue or whether the justices will eventually hear separate arguments on the legality of the executive order itself.

Outside the Supreme Court building on Thursday, about 100 very loud protesters expressed their displeasure with Trump and their support for birthright citizenship regardless of the immigration status of a child’s parents.

One of those protesters was Sara, from Levittown, New York, who said she felt compelled to stand in front of the courthouse due to her belief that if Trump were to overturn birthright citizenship and the 14th Amendment, “that would be the beginning of the dismantling of the Constitution of the United States and the consolidation of fascism here.”

“I’m a Quaker and believe in peaceful protest,” she continued, adding that her hope is that millions of people will rise up and make their voices heard.

“If that were to happen, if we were to make the government ungovernable, that would force him to step down,” she said. “And he has to step down as soon as possible, because waiting until the next election to remove him may be too late.”

Another protester, Ross from Takoma Park, Maryland, said he firmly believes birthright citizenship is enshrined in the Constitution and “is part of the rule of law.”

“To do anything to take that away is a huge injustice to our system of checks and balances and a full-fledged violation of the constitution … and I just hope the Supreme Court will do the right thing and shut this down.”

Ross said he was also inspired to protest Thursday by remarks attributed to Vice President JD Vance, that harkened back to former President Andrew Jackson’s famous assertion that the Supreme Court can make law, “now lets see it enforce it.”

“I mean, that’s the Trump administration’s whole strategy. So I think it’s important for people to be aware of what’s going in and to try and rally others, and push back on that in any small way that we can,” he said.

Only one individual waged a counter protest against that position.

Standing off to one side of the crowd with several large homemade signs, Frank Paul Lukas of McLean, Virginia, said he’s concerned about nationwide injunctions because he believes they effectively allow any one of the 600 appointed federal judges in the United States to usurp the will of the voters.

“I mean, in effect what they’re saying to Trump is, ‘You got elected, that’s nice. But it really doesn’t matter.’ And they’re saying the same thing to the members of Congress and the Senate.

“They’re saying, ‘I am a federal district court judge and I’m going to just undo everything that you just got voted in to do through a democratic system,’” Lukas said. “And this isn’t a partisan position on my part — I mean, the president impacted by this could have been Biden – nationwide injunctions are nothing new — it just happens that at this moment, it’s Trump.

“So I really think the district court judges have too much power … and if they, meaning the justices, don’t put an end to it, they should at least modify it and temper it in some way,” he said.

Dan can be reached at [email protected] and @DanMcCue

Photos outside the U.S. Supreme Court building by Dan McCue.