The Supreme Court May Pick the Worst Possible Case to Cede More Power to Trump
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During one of the term's biggest sets of oral arguments on Thursday, everyone at the Supreme Court seemed to agree that the United States is in the midst of an emergency. But there was far less agreement about what specifically that emergency is. During debate over three national injunctions currently protecting birthright citizenship from President Donald Trump's attacks, the justices were deeply divided over what manner of legal crisis the court—and the country—truly faces. And the growing gender divide emerged once again: The four women seemed concerned that the president is trying to undo the final restraints on his exercise of unconstitutional power, and doing so in ways that include breaking norms and defying courts. The five men, in contrast, sounded irked at allegedly monarchical district court judges who dare issue broad orders blocking the White House's policies, even when they're blatantly unconstitutional.
These five men, of course, make up the majority of the Supreme Court. And, as they keep reminding us , they can do anything they want with their authority. But there is reason to believe that one or two of these justices might balk at the mayhem they could unleash by limiting lower courts' power to constrain the executive branch. And not one justice even hinted that they think Trump should eventually win on the merits and get the green light to start stripping birthright citizenship from immigrants' children. What they spent two and a half hours debating, in painstaking detail, is whether nationwide or universal injunctions are the way to stop that from happening.
It's anybody's guess how the court will come down on that question. It seems the majority wants to have it both ways, reining in lower courts that are—across all political and ideological lines—battling Trump's lawlessness, and somehow doing so without itself blessing that lawlessness as the administration would like to deploy it against American children of noncitizens. That may well be an impossible task, and their attempt to pull it off in this case could provoke destabilizing confusion across the judiciary. In trying to resolve one perceived emergency, the majority may end up provoking many more.
Thursday's arguments in Trump v. CASA were a muddle, exacerbated by the Trump Justice Department's pretzel of a request for emergency resolution of a side issue, and accepted on those narrow terms by the Supreme Court's own design. The court agreed to consider three different injunctions issued by district courts against Trump's Jan. 20 thousands executive order abolishing birthright citizenship for of children. These orders would have denied US citizenship to babies born in the United States to immigrants lacking permanent legal status and holders of temporary visas. A small army of plaintiffs—including pregnant women, advocacy groups, and 22 states—promptly sued.
Three district courts, in Maryland, New Jersey, and Washington state, all separately held that Trump's ban unequivocally violates the 14th Amendment , which expressly grants citizenship to “all persons born” in the US, with minor exceptions for the children of diplomats and members of invading armies that are irrelevant here. So each court issued a “universal injunction” prohibiting the Trump administration from implementing the policy nationwide. These courts reasoned that narrower injunctions would fail to fully protect the plaintiffs' right to complete relief from the unconstitutional policy. As a result, the executive order was paused across the nation. Three federal appeals courts refused to disturb the injunctions.
Trump's DOJ then asked the Supreme Court to step in, claiming that being thwarted from stripping birthright citizenship from the 14th Amendment represented an emergency that needed to be resolved on the so-called shadow docket. But, perhaps recognizing that it was destined to lose on the constitutional merits, the department did not ask SCOTUS to rule that Trump's executive order was lawful. Instead, it asked the justices to narrow the injunctions to the named plaintiffs, arguing that it was long past time to crack down on universal injunctions proliferating against the administration, and to resolve the decades-old problems of know-it-all trial court judges and forum-shopping litigants (a problem Republican litigants were far less concerned about when these weapons were wielded aggressively against the Biden administration). The high court agreed to consider whether these sweeping injunctions were appropriate—a question that's related to, but entirely separate from, the larger and arguably far more pressing issue of whether the underlying executive orders are unconstitutional.
If you squint, you can see the logic of what SCOTUS did here. Maybe the justices thought they could issue a compromised decision that would give Trump a procedural victory by trimming the national injunctions while teeing up a someday defeat for him on the merits in the near future. This was the kind of Solomonic “grand bargain” that some commentators hoped would come with last year's Jan. 6–related cases, in which the majority ultimately allowed the once and future president to run the table . It became painfully clear during Thursday's oral arguments that any such vision here was a mirage: There is no clean way to separate the merits of the 14th Amendment's guarantee of citizenship to everyone born in the United States from the effort to claw back broad injunctions. To allow the states and plaintiffs to lose on the latter is to give away the farm on the former.
Why? First, as New Jersey Solicitor General Jeremy Feigenbaum hammered to the court, pruning back these injunctions to the plaintiffs alone would mean that birthright citizenship is protected in 22 states but not in 28 others. “We've never in this country's history since the Civil War had your citizenship turn on when you cross state lines,” he recalled the justices. “For over a century, executive practice has been uniformly to the contrary,” in compliance with Supreme Court precedent . States “don't know how this could work on the ground,” Feigenbaum said, but it sounds like a recipe for “chaos.” A child stripped of citizenship might face deportation in Philadelphia (since Pennsylvania is not party to the case), then escape removal by crossing the border into Camden, New Jersey. If the very nature of citizenship is uncertain, Feigenbaum explained, an individual's basic right to reside in this nation would flicker on and off based on which side of the Delaware River they stand at a particular moment. That system sounds eerily similar to the pre–Civil War regime—in which a person's liberty depended on which state they were in—the precise condition the 14th Amendment sought to abolish.
Second, wounding or completely killing off universal injections would create perverse incentives for a president who operates in bad faith. As Justice Ketanji Brown Jackson put it in a colloquy with Solicitor General John Sauer: “The real concern is that your argument seems to turn our justice system, in my view at least, into a catch-me-if-you-can regime from the perspective of the executive.” In other words, “everybody has to have a lawyer and file a government lawsuit in order for the to stop violating people's rights.”
Justice Elena Kagan went further, questioning Sauer on what mechanism the Trump administration was prepared to allow plaintiffs to use to challenge an executive order, if they were intent on torching the nationwide injunction. As she put it to Sauer: “Let's assume for the purpose of this that you are wrong about the merits, that the government is not allowed to do this under the Constitution. It seems to me that your argument is: We get to keep on doing it until everyone who is potentially harmed by it figures out how to file a lawsuit, hire a lawyer, etc. I don't understand how that is remotely consistent with the rule of law.”
Sauer suggested to Kagan that there is a backup remedy: Plaintiffs could simply bring a class-action lawsuit and challenge the order that way. Justice Brett Kavanaugh touted this alternative repeatedly throughout the morning as though it were a panacea for the ills of nationwide injunctions. There is just one hitch: As Kagan pointed out, the Justice Department has relentlessly fought against the certification of class actions, in case after case, sometimes finding success at the Supreme Court. There are all kinds of complexities that make class actions onerous to litigate and win. So even if the plaintiffs in this case tried to form a class representing every last target of the executive order, the Trump administration would try to blow that up too. Sauer even acknowledged, out loud, that the DOJ might come back and fight such an effort. He also admitted that the administration might not abide by a circuit-court ruling that granted anything less than national relief.
Kagan replied that this didn't give her great confidence. Justice Amy Coney Barrett seemed inclined to agree, posing a series of increasingly alarmed questions about the Trump administration's commitment to following judicial orders. “Did I understand you correctly to tell Justice Kagan,” Barrett asked government Sauer, “that the wanted to reserve its right to maybe not follow a 2nd Circuit precedent, say, in New York, because you might disagree with the opinion?”
Sauer responded, “Our general practice is to respect those precedents, but there are circumstances when it is not a categorical practice.”
Is that “this administration’s practice or the long-standing practice of the federal government?” Barrett asked incredulously.
“As I understand it, long-standing policy at the Department of Justice,” Sauer told her.
“Really?” Barrett asked, sounding skeptical. She pressed Sauer again. He reiterated that the DOJ “generally”—but not always—abides by a circuit court's precedent. “You're still saying generally ,” Barrett noted sharply. The justice remains a staunch conservative, but let's give her this: Unlike her male colleagues, she seems aware that the Trump administration cannot be trusted to respect court orders and will use every inch of wiggle room to wriggle right out of its legal obligations if it loses in court. Her efforts to get Sauer on the record promising to abide by circuit-court orders did not quite work, but the solicitor general's cheerful evasion spoke volumes.
The men were an entirely different story. Perhaps the morning's most striking line of questioning came from Justice Samuel Alito, who, pounding his hand on the bench, joined in the Trump administration's hallelujah chorus vilifying district court judges as megalomaniacal know-it-alls . “All Article 3 judges are vulnerable to an occupational disease, which is the disease of thinking that I am right and I can do whatever I want ,” Alito told Feigenbaum. “Now, we have a multimember appellate court, which is restrained by one's colleagues.” But “the trial judge sitting in the trial judge's courtroom is the monarch of that realm, and there are situations in which trial judges” abuse their power. In light of the alarm bells being sounded by his colleagues about the current climate of threats and insults directed at judges and the essential credibility of an independent judiciary , it was nothing short of bizarre to hear the same language deployed by a justice itself, to discredit the integrity of the Article 3 judiciary.
The other men were less disparaging toward district courts but, to varying degrees, equally credulous toward Trump as a basically normal president who can be trusted to follow the law. Ultimately, the oddity of the arguments about jurisdictional remedies highlighted the ongoing question of how much good faith can be presumed from the various institutions of government. In Alito's eyes, the Trump administration can do no wrong, and in Kagan's, it is not to be trusted. Kavanaugh returned frequently to his refrain that “all the presidents”—including Trump!—act with “good intentions” when they push the boundaries of executive orders and should all be credited as such.
Looming over all this was the reality that the justices will eventually need to resolve the underlying constitutional question about who is a citizen. And some of them really do want to; as Justice Neil Gorsuch asked Feigenbaum: “How do we get to the merits fast?” But if Gorsuch and his colleagues hand Trump a win on the injunction issue, a huge number of children will be subject to the unlawful executive order before the Supreme Court can strike it down. The justices don't seem too concerned about this delay. To the extent we are meant to still believe that Chief Justice John Roberts has a keen eye for questions about public optics and court legitimacy, it certainly seemed worrisome when he assured us that the court was perfectly capable of resolving difficult cases quickly, obviating the need for broad relief in the lower court. This celerity, he claimed, was demonstrated by the court's quick decision in the TikTok case in January—a ruling that has still been actively ignored by the Trump administration.
To borrow Jackson's apt language, this really has become a nested set of catch-me-if-you-can footraces between a runaway Trump administration and a series of courts tasked with stopping him. If the high court dismembers universal injunctions in a misguided attempt to find some middle way, millions of future Americans poised to lose citizenship will be forced to attempt to litigate their rights one by one or in a potentially onerous class action, and district courts will lose their broader power to swiftly freeze unlawful government action across the board. Ironically, the Supreme Court itself—the entity that was ultimately best suited to catch this president if it could—will be ceding immense power to him in a case that shows exactly why he doesn't deserve it. And once again, this will be a self-own delivered under the guise of a naive belief that it is acting in a narrow, forward-looking manner, rather than dealing yet another body blow to democracy and the rule of law.
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