Dem
47
GOP
53
Yesterday, utilizing the emergency docket, the Supreme Court heard oral arguments in a case concerning Donald Trump's executive order purporting to end birthright citizenship for certain classes of people born in the U.S.
In cases brought by states, immigrants rights groups, and pregnant women, three different district courts have already weighed in, and all have found that the XO violates the Fourteenth Amendment's clear language—not to mention Supreme Court precedent—that anyone born in the U.S. is a citizen regardless of how their parents arrived in this country. Each court preliminarily enjoined the Trump administration from enforcing the XO. The White House asked the appeals court for a stay pending appeal, and when the appeals court said "no," the administration went to SCOTUS for an emergency stay of the injunctions. Instead of denying the stay, and allowing the injunctions to remain in place, given how wrong Trump is on the merits, the Court decided that it would use this case to examine the so-called nationwide injunction problem.
As a brief background, given the slew of unlawful Executive Orders from Trump v2.0, we've seen an uptick in courts striking them down, with nationwide reach. The effect of striking them down is that they can't be used at all against anyone—not just against the parties involved in the case. We also saw this during Biden's presidency, of course, most obviously with Republicans filing suits to get in front of Matthew Kacsmaryk, who issued a nationwide injunction declaring mifepristone to be illegal for all Americans.
Yesterday, in a dynamic reminiscent of the presidential immunity case, the Justices excoriated anyone who tried to mention the actual facts of the case before them. Presumably this is because the facts here, like those in the immunity case, do not reflect well on Trump. This Supreme Court has really perfected the art of avoiding any issue where they might have to rule against Trump. Associate Justice Brett Kavanaugh might as well have been speaking directly to Trump when he decreed that every president who has used XOs has done so with good intentions and has perhaps been frustrated by the slow pace of Congress and has been tempted to "push the envelope." Yeah, right. Condemning hundreds of men to life in a torture prison in El Salvador without a finding of any wrongdoing, and doing so under a law to be used only during times of war, when the U.S. is clearly not at war, is a good-faith attempt to push the envelope? C'mon.
In this strange posture, the parties briefed only the issue of when, if ever, a district court should be able to issue an injunction that applies nationwide. The government is asking for a bright-red-line rule that a court NEVER has that authority, except in the context of a class action or to enforce a Supreme Court decision. The Court did not seem willing to go that far, but struggled with how to contain a district court that has abused its power and encouraged forum-shopping among certain parties (ahem, Kacsmaryk). Justice Ketanji Brown Jackson pointed out that the term "nationwide injunction" is itself a misnomer, because if the administration has broken the law through some executive action they claim applies to everyone, how is it legal to apply it to anyone? Chief Justice John Roberts implied that the Court's ability to act quickly when necessary would obviate any fallout from patchwork injunctions.
Meanwhile, Associate Justice Elena Kagan made the excellent point that the government holds all the cards here, because they have lost in every court on this issue. If the Court agrees that the injunctions issued so far are only effective as to the parties involved, and the only way for an order to apply nationwide is for the Supreme Court to weigh in, then if the government doesn't petition for cert, how does the issue ever reach the Supreme Court for it to weigh in? Solicitor General John Sauer also admitted that they would vigorously contest class certifications, and could very well end up back before SCOTUS with an argument that that avenue should not be available either.
Remarkably, even Justice Samuel Alito seemed skeptical that the Court could create a bright-red-line rule limiting a lower court's authority to provide equitable relief. Jeffrey Feigenbaum, solicitor general of New Jersey, argued for the states, and said that in terms of the Fourteenth Amendment issue, nothing other than a nationwide injunction is workable to avoid having one's citizenship turn on the state where one happens to be located. Imagine being a citizen in California but being stripped of citizenship if one moves to Texas?
Because this was heard on the court's emergency docket, we will probably see a decision before the Court's current session ends in either late June or early July. (L)