Oral arguments can be an imperfect indicator of how the court will ultimately decide a case. Tuesday’s session added to the uncertainty by giving no clear impression on some of the weightier matters in play. Some of the conservative justices appeared uneasy with the president’s lackadaisical approach to birthright citizenship. It’s also unclear whether a majority of the justices are prepared to support Trump’s demand to defang the lower courts.
“How are they going to know that?” Kavanaugh continued. “The federal officials will have to figure that out, essentially,” Sauer replied. That did not appear to satisfy Kavanaugh. “How?” the justice asked. “So you can imagine a number of ways that the federal officials could—,” Sauer began to say, before Kavanaugh interjected. “Such as?” he asked.
At the same time, many of the justices aired their concerns about the potential warping effects that nationwide injunctions from federal district courts can have on the nation’s political system. “This case is very different from a lot of our nationwide injunction cases in which many of us have expressed frustration at the way district courts are doing their business,” Kagan told Kelsi Corkran, who argued on behalf of the immigrant plaintiffs.
The case, Trump v. CASA, is about Trump’s executive order that purported to no longer recognize birthright citizenship for some children born on U.S. soil to non-citizen mothers who are either “unlawfully present” in the country or whose presence is “lawful but temporary.” It did not apply retroactively, nor does it affect children with at least one U.S. citizen parent or who are born to green-card holders.
Whatever the planned outcome may be, the order is unconstitutional on its face. The Fourteenth Amendment’s Citizenship Clause is unequivocal: “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.” Congress and the states ratified that clause in 1869 to overturn Dred Scott v. Sandford, the infamous 1857 case where the Supreme Court held that people of African descent could never be citizens, and to indisputably extend citizenship to all formerly enslaved people in the South during Reconstruction.
Some opponents of birthright citizenship, such as the Trump administration, have claimed that it does not apply to children born to foreign-born parents. There is ample historical evidence that the amendment’s drafters meant for it to apply as broadly as possible, and the Supreme Court itself accepted that approach in the 1898 case Wong Kim Ark v. United States, where it held that a California-born man whose parents were subjects of the emperor of China at the time was an American citizen from the moment of his birth.
Nationwide injunctions have bedeviled presidents from both parties over the last few administrations. With Congress hamstrung by the Senate’s filibuster and the House’s gerrymander-fueled hyperpartisanship these days, the White House has often sought to use existing legal powers in novel ways to carry out the agenda that it promised to voters. As a result, the Obama, Biden, and Trump administrations in particular have faced legal challenges against nearly every policy change that they try to make.
Some of the justices have criticized this practice for exceeding a court’s traditional powers. “The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them,” Justice Neil Gorsuch wrote in a concurring opinion in 2020, which was joined by Justice Clarence Thomas. “Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.”
Sauer, Prelogar’s successor, urged the court to rein in the injunctions in his opening statement on Thursday. “They encourage rampant forum-shopping,” he told the justices. “They require judges to make rushed, high-stakes, low-information decisions. [...] They operate asymmetrically, forcing the government to win everywhere while the plaintiffs can win anywhere. They invert the ordinary hierarchy of appellate review. They create the ongoing risk of conflicting judgments.”
Justice Elena Kagan told Sauer that the Trump administration’s procedural approach in this case could allow it to avoid future Supreme Court rulings altogether. She noted that every lower court that had considered the executive order on the merits had ruled against it. By definition, the winning party in a case can’t appeal a ruling that it won. At the same time, the Justice Department did not ask the justices to review the merits question, instead only seeking review of the lower courts’ ability to impose nationwide injunctions as a remedy.
Sauer replied that other individuals could ask a federal district court to intervene. “Yeah, and then they win, and, again, I mean, you need somebody to lose, but nobody’s going to lose in this case,” she said, to laughter in the courtroom. “You’re going to have individual by individual by individual [cases], and all of those individuals are going to win, and the ones who can’t afford to go to court, they’re the ones who are going to lose.”
Justice Sonia Sotomayor framed the problem in terms that might resonate more with conservatives. “So, when a new president orders that, because there’s so much gun violence going on in the country, he comes in and he says, ‘I have the right to take away the guns from everyone,’ and he sends out the military to seize everyone’s guns, we and the courts have to sit back and wait until every named plaintiff whose gun is taken comes into court?” she asked. Sauer suggested that the courts could certify a class-action lawsuit on an emergency basis in such a scenario, which seemed insufficient to the task at hand.
“Our general practice is to respect those precedents, but there are circumstances when it is not a categorical practice,” he replied. “I’m not talking about in the Fourth Circuit are you going to respect a Second Circuit [opinion],” Barrett continued. “I’m talking about within the Second Circuit. And can you say if that this administration’s practice or a longstanding one?” Sauer began to reply that it was “as I understand it, longstanding practice,” to which Barrett sharply replied, “Really?”
When members of the court pressed Sauer on whether they should grant certiorari before judgment—an emergency power that the Supreme Court can use to review district-court cases without waiting for the appeals courts—the solicitor general again demurred, suggesting that the legal dispute needed more time to “percolate” in the lower courts before reaching the justices. There did not appear to be much appetite for that: Members of the court ranging from Sotomayor and Kagan to Gorsuch and Justice Samuel Alito all pressed the lawyers on whether they should also take up the underlying merits question.
To curb nationwide injunctions, the court would also need to reckon with empowering a president who has already shown clear disregard for the courts’ authority. “The real concern, I think, is that your argument seems to turn our justice system, in my view at least, into a ‘catch me if you can’ kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights,” Justice Ketanji Brown Jackson told Sauer at one point.
The Supreme Court has already shown extraordinary deference to Trump over the last few years and has occasionally embraced absurd legal theories, such as presidential immunity, that he has proposed. Rewriting the separation of powers to let presidents commit crimes has already had severe consequences for the rule of law. Rewriting the Citizenship Clause on Trump’s behalf could redefine exactly what it means to be an American—a question that the clause was designed to put beyond the whims of presidents, justices, and lawmakers forever.
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