The Supreme Court heard a blockbuster case on Thursday that impacts how challenging or easy it will be for President Trump’s executive orders to be enacted in the future, such as his order to end birthright citizenship for children born to undocumented immigrants.
Trump's birthright citizenship executive order hasn't been enforced because a few federal judges blocked the policy by issuing a nationwide injunction through lawsuits that challenged his order. A federal judge in one district has the power to block a policy nationwide, not just for the parties involved in the case.
In this case, the Trump administration did not ask the high court to weigh in on the legality of the executive order. Instead, the justices are looking at the scope of judicial power that federal judges have to block a president’s policies through a nationwide injunction.
This judicial tool has been a significant hurdle for the Trump administration to implement several other policies while litigation plays out in court, including Trump’s efforts to thwart illegal immigration, end diversity initiatives and downsize the federal government.
Solicitor General D. John Sauer, who argued the case on behalf of the Trump administration, said there’s an overuse of these nationwide injunctions. “Since January 20, district courts have now issued 40 universal injunctions against the federal government,” Sauer told the justices at Thursday’s hearing.
Sauer also said it’s a bipartisan problem “that has now spanned the last five presidential administrations” in an effort to curb the political agenda of a president.
New Jersey Solicitor General Jeremy Feigenbaum, who is arguing on behalf of the Democratic-led states that are challenging Trump’s order, agreed with the overuse concerns. However, he still argued for the use of nationwide injunctions, but said they should be used sparingly.
Here’s a closer look at the case and the key takeaways from Thursday’s hearing.
Key takeaways from the hearing
The federal government argued district court judges have overstepped their authority
Sauer, who argued on behalf of the federal government, said in his opening statement that, “Universal injunctions exceed the judicial power granted in Article 3, which exists only to address the injury to the complaining party.”
Justice Sonia Sotomayor says Trump’s order violates Supreme Court precedent
Sotomayor, one of the court’s three liberal justices, pressed Sauer on the legality of Trump’s birthright citizenship order.
“So as far as I see it, this order violates four Supreme Court precedents," she said. Sotomayor added that if nationwide injunctions were eliminated, then courts would have to wait for everyone affected to take action in court.
Justice Clarence Thomas takes a look at the historical use of nationwide injunctions
Thomas, who is one of the court’s six conservative justices, asked Sauer how long nationwide injunctions have been used. Sauer replied that they really started to be used in the 1960s.
"So we survived until the 1960s without universal injunctions?" Thomas asked. "That's exactly correct," Sauer responded.
Justice Elena Kagan pressed about the heart of the case
Kagan, a liberal justice, pressed Sauer on the logistics of the federal government’s request to limit the injunctions to the plaintiffs. If the Trump administration only wants injunctions to apply to people who bring lawsuits challenging a president’s policy, “Does every single person that is affected by this [executive order] have to bring their own suit?” Kagan asked. “How long does that take?”
Sauer said that people challenging an order could file a class-action lawsuit, but even that would likely mean the federal government would challenge that.
Conservative Justice Amy Coney Barrett jumped into the debate by asking Sauer, “Are you really going to answer Justice Kagan by saying there’s no way to answer this expeditiously?”
Chief Justice John Roberts appeared to throw Sauer a lifeline by suggesting that the court can act quickly when it needs to, citing the TikTok ban case.
Justice Brett Kavanaugh searched for clearer answers on enforcing Trump’s order
Kavanaugh, a conservative justice nominated by Trump, pressed Sauer on the logistics of how Trump’s birthright citizenship order would work once a 30-day “ramp up” period runs out.
“What do hospitals do with a newborn? What do states do with a newborn?” Kavanaugh asked. Sauer said they won’t need to do anything and that the onus is on the federal officials to implement Trump’s order. They will “figure it out,” Sauer said.
Justice Ketanji Brown Jackson presses on people having to hire lawyers
Jackson summarized the Trump administration’s argument as a “catch-me-if-you-can” position.
“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,” Jackson said, “where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights.”
Kagan spoke to the issue earlier in the argument saying the people who are going to suffer in this instance are the people who can’t afford to hire lawyers.
Lawyer representing Democratic-led states argues for nationwide injunction in this case
Feigenbaum said that nationwide injunctions should be used for issues that affect the whole country, and in narrow cases. This is one of those cases, he argued. If there is no nationwide injunction to block Trump’s birthright citizenship order, it could lead to "chaos on the ground where people’s citizenship turns on and off when you cross state lines,” depending on how states deal with the issue.
How did we get here in the first place? What did Trump’s executive order say?
On the first day of Trump’s second term, the president signed an executive order that ended birthright citizenship for children that were born in the U.S. to people who are not citizens. Trump’s order directed federal agencies not to recognize the citizenship of U.S.-born children unless at least one of their parents is a citizen or a lawful permanent resident.
Birthright citizenship is a post-Civil War era right that was enshrined in the U.S. Constitution's 14th Amendment. It states that 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." Courts and governments have long interpreted this clause to mean that anyone born in the U.S. is a citizen, no matter the citizenship status of the child's parents.
The Trump administration’s reinterpretation of the 14th Amendment in the executive order argues that the phrasing does not include children born to parents who aren’t citizens, or even to immigrants whose presence is lawful, but temporary, like university students or individuals with work visas.
What was the reaction to Trump’s executive order?
A slew of lawsuits came rushing in to challenge the constitutionality of Trump’s executive order in an effort to block it. They came from 22 Democratic state attorneys general, undocumented pregnant immigrants, as well as immigrant advocacy groups.
Those resulted in the following lawsuits:
Trump v. CASA: Filed by immigrants' rights groups and several pregnant women in Maryland
Trump v. Washington: Filed in Seattle by a group of four states
Trump v. New Jersey: Filed in Massachusetts by a group of 18 states, the District of Columbia and San Francisco
The Supreme Court did not hear each case separately on Thursday. Instead, the three cases were consolidated into one known as Trump v. CASA.
What happened in the lower courts?
The lower courts took up those lawsuits. Federal district court judges in Maryland, Washington state and Massachusetts issued nationwide injunctions to block Trump’s executive order from going into effect nationwide.
"With a universal injunction, a federal judge (or several in this case) can bar the government from enforcing an executive order – or, in another case, a law or policy – anywhere in the country," according to SCOTUSblog.
The Trump administration then requested in three appeals courts that the injunctions be lifted or that they should be narrowed down, all of which were denied.
What is Trump asking the Supreme Court to do?
Trump is asking the Supreme Court to narrow the birthright citizenship injunctions so that they only apply to the individual plaintiffs who brought the case. In this case, Trump wants the injunction limited to the people, organizations and potentially the 22 states that legally challenged his executive order.
What are the implications of the case?
If the Supreme Court decides to side with Trump and narrow the injunctions so they only apply to the individuals and others who filed lawsuits, there will be different birthright citizenship rules for different people while litigation plays out.
If the Supreme Court ultimately decides to limit national injunctions in general, the Trump administration would have a less challenging time trying to implement future policies going forward.
What’s next?
Now that the justices have heard arguments in the consolidated case, the Supreme Court will release its decision by the end of June or early July.
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