Supreme Court Hears Arguments On Trump Birthright Citizenship Restriction

At least five conservative Supreme Court justices appeared supportive of arguments in favor of limiting how federal district courts can issue universal nationwide injunctions on executive branch policies, which could allow President Donald Trump’s executive order limiting birthright citizenship to, at least temporarily, go into effect.

The Trump administration brought this case to the Supreme Court after dozens of federal district courts issued nationwide injunctions blocking Trump’s executive order, which would deny birthright citizenship to any child born to noncitizen parents in the United States. Instead of challenging the underlying legality or constitutionality of Trump’s order, the administration asked the Supreme Court to rule on whether district courts can issue universal nationwide injunctions at all.

This procedural question dominated arguments on Thursday, and it appeared that a majority of conservatives agreed, at least somewhat, with the Trump administration’s arguments against universal nationwide injunctions. If the court were to accept such an argument, it would allow Trump’s executive order rewriting the rules of birthright citizenship to go into effect for everyone except for the individual plaintiffs who sued and won at federal district courts.

While the justices often seemed uncertain on the ticky-tacky details, there seemed to be significant sympathy among the conservative justices for some form of restrictions on nationwide injunctions, which, in the absence of any clarification or an intentionally narrow ruling, would allow the birthright citizenship order to go into effect. However, the arguments also left open the possibility of the justices issuing a more narrow ruling to allow for changes to injunctions without giving free rein to the birthright restrictions.

The uncertainty keeps in play the possibility of a patchwork of citizenship throughout the country for the first time since the end of the Civil War, one that would make it far more difficult for the children of non-citizens to bring suit to obtain the citizenship owed to them by birth under the Constitution.

Solicitor General D. John Sauer argued for the administration, making the case that courts may only grant relief to the plaintiffs who brought the suit. This argument would exclude non-parties who are in a similar situation but who did not join the suit outside of a class-action lawsuit, which carries with it greater challenges to obtain a certification of a common group of people as a class before the court.

The reason the administration brought this procedural and technical question to the court is because they are likely to lose on the merits. As four district courts have ruled, Trump’s executive order restricting the constitutional right to birthright citizenship is plainly unlawful.

“The argument here is that the president is violating not just one, but four established Supreme Court precedents,” Justice Sonia Sotomayor said, but that it may continue violating those precedents for anyone who doesn’t individually bring and win a case in court.

This creates a “catch-me-if-you-can” problem, Justice Ketanji Brown Jackson said, “where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights.”

But at least four conservative justices seemed more concerned with limiting universal nationwide injunction and showed less concern for how the administration could game the court system to continue denying citizenship to children born in the U.S. to noncitizens.

Justice Clarence Thomas limited his questions entirely to the origin and history of nationwide injunctions, clearly as an effort to prove that they are a modern invention without a history or tradition that traces to the founding.

Meanwhile, Chief Justice John Roberts repeatedly interjected to steer Sauer back to the questions of how the courts could readily handle this case absent nationwide injunctions when the liberal justices had him in a corner.

Allowing the government to deny citizenship to U.S.-born children of noncitizens while they seek individual relief from an unconstitutional act by the president is similar to requiring every individual gun owner to sue on their own if a president ordered the military to take all guns from U.S. citizens, Sotomayor argued.

Roberts jumped in to steer the conversation to more favorable territory. He noted that there are some situations, like voting rights or gerrymandering cases, where universal relief is a byproduct of the relief for the individual.

Again, after Justice Elena Kagan tried and failed to get Sauer to explain how his theory against universal relief would allow the Supreme Court to ever rule on the underlying merits of the order, Roberts jumped in to note that the courts can move quickly when necessary. Roberts noted the fast movement in the case surrounding the law requiring the sale of TikTok, although he failed to mention the consequentially slow movement in the Trump v. U.S. case.

Justice Samuel Alito similarly focused on how there are other avenues that plaintiffs could take to seek classwide relief absent nationwide injunctions. And so did Justice Neil Gorsuch, although he seemed to have more reservations about the workability of those avenues.

“If we were to hold that the states have standing and it’s possible for a plaintiff to get emergency certification of class. Suppose we agreed with you on universal injunctions, but allowed those other two avenues, would the practical problem be rectified?” Alito said.

“How do you think we address the merits of this case expeditiously?” Gorsuch asked.

What may tilt this case in the other direction was how clearly Sauer telegraphed that the Trump administration would oppose every other remedy he suggested that those affected by the order could take.

When asked by Kagan how the country could get to “a rule that there’s one rule of citizenship,” Sauer suggested that plaintiffs file a class-action lawsuit but added that the administration would oppose it. This contradicted Roberts’ effort to argue that the courts could deal with the case quickly. Sauer also suggested that the administration would question whether the children of noncitizens constituted a class to begin with.

“If one thinks that the [executive order] is illegal, how does one get to that result without the possibility of a nationwide injunction?” Kagan followed up.

The case would need to wind through multiple courts with appeals and challenges, Sauer responded, effectively making a case that there would be limited recourse for any fast relief.

“Are you really going to answer Justice Kagan that there’s no way to do this expeditiously?” Justice Amy Coney Barrett asked.

Sauer hemmed and hawed, repeating his statement that the courts can do this through a class action.

But Kagan wanted to know if the administration would obey a decision in a non-class-action case brought by an individual that covered all individuals who live in that circuit, bringing up a Second Circuit court decision as an example.

Sauer was noncommittal. “Generally our practice is to respect circuit precedent,” Sauer said.

This contention that the administration would not follow a decision from a circuit court elicited further questions about the administration’s trustworthiness and faithfulness to the law. Barrett, in particular, seemed incredulous at Sauer’s assertions.

Where Barrett appeared to be on the side opposed to the administration’s arguments around nationwide injunctions, other conservatives like Justice Brett Kavanaugh and, at times, Gorsuch appeared split. They wanted to limit nationwide injunctions, but would also like to rule that the executive order is unconstitutional.

“What do hospitals do with a newborn? What do states do with a newborn?” Kavanaugh asked, one of the few times a conservative justice directly addressed the practical impacts of the order. He seemed a bit taken aback after Sauer suggested the government would screen the parents of all newborns for visa or legal status.

In what seemed to be an effort to poke holes in the history and tradition argument that Thomas pursued, Kavanaugh approached the development of nationwide injunctions as a response to political developments between the executive and Congress. With legislation much harder to enact in a divided and logjammed Congress, presidents have resorted to executive actions far more frequently in recent years and courts have more often found them overstepping their powers, he suggested.

Both Gorsuch and Kavanaugh also asked about how the court could reach the merits of the order itself. Sauer suggested they could ask for a supplemental briefing tomorrow. Kelsi Corkran, the lawyer for the individuals and immigrant rights groups who brought the initial lawsuit, jokingly stated that she was asking the court right now to do so.

A possible alternative out for the justices was presented by New Jersey Solicitor General Jeremy Feignebaum, who represents a group of 23 states challenging the order. He suggested the justices could decide that there are limits on nationwide injunctions, but that this case meets those limits and therefore the injunctions should remain in place while courts decide on the merits of the order.

Limits on nationwide injunctions could still have deleterious impacts on other cases.

Without nationwide injunctions, University of Michigan law professor Margo Schlanger told HuffPost ahead of the arguments, there would be an increasing onus on people to form necessary class actions — a difficult and complicated proposition on which the Supreme Court itself has put restrictions.

Look at the 2011 decision from the Supreme Court in Walmart v. Dukes, she said.

In that case, the high court ruled 5-4 that 1.5 million female employees at Walmart couldn’t sue for pay discrimination as a nationwide class because they had failed to show that they were raising common questions of law or fact. While statistics on gender bias and evidence of pay disparity were presented to the courts at various stages, the anecdotes were seen by conservative justices as “too limited” and the statistics were “too aggregated to establish a pattern” of discrimination against the female Walmart employees.

Writing for the majority, Justice Antonin Scalia urged that legal claims required commonality, or for grievances to be formed “in one stroke.”

But class-action suits, by their very nature encompassing the grievances of a large group of people, are hard to fit within those parameters.

“Class-action practice is slow and cumbersome,” Schlanger said, noting how it can require extensive pretrial research and discovery.

“Right now, there are ‘two trends’ occurring,” she said.

There’s the Trump administration’s approach of “move fast and break stuff,” and the “super-duper careful ideologies that underlie class action practice.”

If the Trump administration can convince the Supreme Court that nationwide injunctions are improper, or they can get the court to drastically limit how injunctions should apply, Schlanger said the outcome would be bleak not only for people using over one issue, but anyone whose rights end up the subject of a court battle.

But such a decision would, in this case, preserve citizenship for hundreds of thousands of children born to noncitizens as the challenges to Trump’s order, viewed almost universally as unconstitutional, go forward.