Live Updates: Supreme Court Wrestles With Judges’ Power to Freeze Government Actions Nationwide
Amendment XIV
Section 1.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
"In a case involving changes to birthright citizenship, the justices heard arguments on whether a single federal judge in a single district can block Trump administration policy across the country.
Supreme Court reporter
The Supreme Court wrestled with arguments on Thursday in a case that could limit the power of federal judges to hobble President Trump’s agenda while challenging the longtime practice of the 14th Amendment guaranteeing citizenship to all children born in the United States.
On issue after issue, individual judges have frozen Mr. Trump’s initiatives in place while they are litigated in court using nationwide injunctions, which block policy across the country and not just for the parties who sued. The justices considered a dispute that stems from the president’s executive order to end the automatic practice of birthright citizenship, a change was blocked by federal judges who ruled that it was unconstitutional.
“In the first Trump administration, it was all done in San Francisco,” Justice Kagan says, adding that during the Biden administration, Republican states went to Texas to secure national injunctions against federal policies. Kagan is getting at the fact both parties have relied on them to stop their political opponents. And many of the justices appear to be frustrated by those actions.
Corkran suggests a middle ground: allow universal injunctions only when a plaintiff is challenging a government action as violating fundamental constitutional rights, since that is a situation where there are concerns that other people harmed by the same action will experience irreparable harm.
Solicitor General D. John Sauer
Representing the Trump administration
Jeremy Feigenbaum
New Jersey’s solicitor general, representing state and local governments
Kelsi Corkran
Arguing for private individuals
The justices have been struggling with two contrary impulses. Many are troubled by injunctions issued by individual federal judges that block executive branch initiatives nationwide. But many of them are also troubled by the executive order seeking to ban birthright citizenship and frustrated by the difficulty of reaching the merits, as the Trump administration has only appealed on the first point.
New Jersey’s lawyer may have offered a middle ground, arguing that this is the rare case in which nationwide relief is needed because it is the only way to grant complete relief to the more than 20 plaintiff states.
Kelsi Corkran, representing individual challengers, is the third and last lawyer. She has 15 minutes, followed by a round of one-by-one questions. Then Sauer, the Trump administration’s lawyer, will get a brief rebuttal.
Feigenbaum, exploring the practical impact of having some states allowing birthright citizenship while others deny it, points out that not since the Civil War has a child’s citizenship status “turned on” (or off) when they crossed state lines. That could be the practical consequence of forcing judges to issue rulings that affect only the plaintiffs in a suit — in this case, a series of Democratic-led states that sued over the order.
Justice Gorsuch seems to be suggesting that getting to the merits promptly would allow the court to issue a ruling promptly about the constitutionality of the Trump executive order. And that ruling, by virtue of being a decision by the nation’s highest court, would in essence have the same effect as a nationwide injunction should the justices rule against the president.
If the government keeps losing in lower courts and chooses not to appeal to the Supreme Court, some justices have said, it is hard to see how the court can rule on the constitutionality of the executive order ending birthright citizenship.
Justice Gorsuch asks a key question: “How would you get the merits of this case to us promptly?”
Feigenbaum once served as a law clerk to Justice Elena Kagan.
Jeremy M. Feigenbaum, New Jersey’s solicitor general, has now begun arguing on behalf of blue states challenging the executive order. He has 15 minutes, followed by a round of one-by-one questions.
Justice Jackson characterizes the Trump administration’s position as a “catch-me-if-you-can regime” from the standpoint of the executive branch, where everyone has to hire a lawyer if the government is violating people’s rights. Sauer’s argument, she says, is that the government gets to keep doing an illegal thing until everyone who is potentially harmed by it figures out how to hire a lawyer. How is that “remotely consistent with the rule of law?” she asks.
Sauer says the administration would follow a Supreme Court ruling on the constitutionality of birthright citizenship. But he hedged on whether it would follow federal appeals court rulings within their geographic jurisdiction, saying the government “generally” would do so.
The assertion by Justice Thomas that “we survived until the 1960’s without universal injunctions” has been challenged by some legal scholars. Those scholars have found examples of the tool’s use going back as far as 1913, when the Supreme Court itself temporarily blocked the enforcement of a federal law not only against the plaintiffs in a case but others as well. In other cases from the 1930’s, lower courts issued statewide injunctions blocking the enforcement of state laws.
Solicitor General John Sauer, responding to a question from Justice Kavanaugh, delves again into the history of nationwide injunctions. Sauer notes that the during the flurry of legislative changes implemented during the New Deal, one policy prompted lawsuits from more than 1,000 individual plaintiffs, suggesting an alternate path to nationwide court orders. Sauer also says that these days are different: He said 40 such orders have been issued in only the past four months.
Justice Kavanaugh questioned how the administration would actually implement this new birthright citizenship policy. He questioned whether the 30-day period outlined in the executive order for the federal government to develop guidance on the policy was too short a window given issue’s complexity.
We’re about 45 minutes into the argument. As expected, the arguments have primarily been about the logistical and practical impact of a system where judges can issue nationwide or universal injunctions blocking executive action versus one in which judges rule on behalf of individuals who have to file their own cases one-by-one. There have been only glancing references to the substantive issue of Trump’s order to end birthright citizenship for children born on domestic soil to undocumented migrants.
Justice Kagan tells Sauer the Trump administration has lost on this issue in every court. Why would the government even appeal to the Supreme Court and risk a binding ruling against them? The government can just keep losing for individuals who bring cases, while continuing to enforce an unconstitutional order against everyone else, especially people who don’t have the resources to file a case."
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