The Trump administration may regret making the birthright citizenship case its test of nationwide injunctions.
The Trump administration may regret making the birthright citizenship case its test of nationwide injunctions.
T his morning, the Supreme Court heard arguments in Trump v. CASA, Inc. and two other consolidated cases challenging Donald Trump’s executive order eliminating birthright citizenship for the children of transients and illegal aliens. CASA raises two distinct high-profile disputes: the constitutional definition of birthright citizenship under the 14th Amendment, and the scope of nationwide injunctive relief that can be ordered by district courts. Judging from the argument, it appears that the Court will focus its decision narrowly on the nationwide-injunction issue. The administration may live to regret choosing this case as a vehicle to decide that question.
National Birthrights
A brief recap is in order. Before 1866, the Constitution provided no written definition of citizenship. The 14th Amendment, which passed Congress in 1866 and was ratified by the states in 1868, began: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” [Emphasis added] Everyone agrees that the “all persons born . . . in the United States” language is, by itself, absolute and unlimited. What limits, then, are placed by the fact that it is qualified by “and subject to the jurisdiction thereof”?
At the time, there was much discussion in Congress about excluding from citizenship the children of three distinct groups, all of whom were considered outside of the jurisdiction of American laws even when on our soil: sovereign Native American tribes; ambassadors or kings of foreign nations; and soldiers of invading foreign armies. In United States v. Wong Kim Ark (1898), the Supreme Court concluded that this short list of people outside of the jurisdiction or protection of American law were the only ones whose children would not acquire citizenship at birth on our soil. While the facts of Wong Kim Ark involved the child of long-term legal residents, the Court’s reasoning cannot be reconciled with the Trump executive order.
Dissident scholarship questioning the application of Wong Kim Ark to the children of transients and illegal aliens has kicked around for a while, advocated in recent years by Edward Erler, John Eastman, and others affiliated with the Claremont Institute. The Trump executive order essentially adopts the Claremont view.
Unsurprisingly, lawsuits followed immediately when Trump issued his order, and the administration has lost in every court to consider the issue so far, because lower courts are not the proper place in which to challenge a Supreme Court precedent. Three separate district courts in Maryland, Massachusetts, and Seattle issued nationwide injunctions that prevented the Trump administration from taking even preliminary steps to assess how to implement the order. After getting nowhere with the appeals courts, the administration filed three petitions to the Supreme Court asking it to either hear the case or at least limit the scope of the district court orders.
When the Court took the case last month and gave a month for briefing before a full argument, I opined that “it would make little sense for the Court to do it this way unless it intends to settle the constitutional question or, at minimum, rule that it can’t be challenged by executive order without a change in statute.” But cases taken on emergency applications don’t have a specific, fixed “Question Presented” in the way that the normal certiorari process forces on petitioners. The Trump administration has given the constitutional merits of its own position only a cursory treatment in the briefs. It seems that the solicitor general hopes to repeat the Trump campaign’s legal strategy in Trump v. Anderson of winning the case on process questions, and in Trump’s criminal cases of winning on immunity. That’s also how the Trump team is handling a lot of the big immigration cases these days, arguing against judicial review more than in favor of the actual legality of its positions.
The justices followed the solicitor general’s lead. Several justices noted that they’d taken the case just to decide the nationwide injunction issue; Justice Samuel Alito was especially insistent on this point, and Chief Justice John Roberts even cut off solicitor general John Sauer at one point from spending time arguing the merits — ironically, just after Roberts had complained that Justice Sonia Sotomayor wasn’t letting Sauer answer a question. The challengers conceded that the Court would need to order supplemental briefing if it wanted to decide the birthright citizenship question.
That said, even some of the conservative justices were uncomfortable with leaving the issue hanging at length. Justice Neil Gorsuch asked both sides how the Court could get to the merits expeditiously. Roberts, offended at Justice Elena Kagan’s suggestion that cases get to the Court too slowly, retorted that “we’ve been able to move much more expeditiously — we did the TikTok case in a month.”
National Injunctions
The Trump administration is playing for arguably bigger stakes here than the definition of citizenship: an end to the routine practice of district courts entering nationwide injunctions under which individual judges in deep-blue (or deep-red, when a Democrat is president) districts tie the hands of the entire executive branch while a case is working its way through the courts. Such orders often begin with a temporary restraining order that is issued before the Justice Department’s lawyers can even get in the courthouse door to make their case. It’s a sufficiently frustrating dynamic that even Justice Elena Kagan expressed some exasperation with it. As Alito observed, theatrically thumping the bench for emphasis, there are 680 district judges in the country, and every Article III judge has the occupational hazard of thinking they’re right. That tendency can be restrained by one’s colleagues on a multimember appeals panel, Alito added, but district judges in their own courtrooms are “the monarch of that realm.”
There are practical and jurisprudential arguments for and against nationwide injunctions. The three main such arguments against them:
(1) They encourage forum-shopping for favorable judges and give too much power to individual judges.
(2) They are asymmetrical: If the government wins nine times out of ten, it’s still under one injunction nationwide. That violates the usual rule in civil litigation that the decision binds both sides, but only the people actually before the court. The people who lost the first nine cases still get to win. That problem can be fixed by filing a class action, but certifying a class slows down the process of issuing an injunction.
(3) Accelerated proceedings often dump cases in the Supreme Court’s lap before the factual record is clear and before the lower courts have had time to let the legal issues “percolate” by different appeals courts taking a crack at them.
The case in their favor:
(1) It’s anomalous and sometimes impractical for the federal executive branch, which by design makes and executes policy decisions on a nationwide basis, to spend years operating under conflicting court orders in different states or circuits.
(2) It’s wasteful to demand that every individual — sometimes millions of them — affected by the same decision to file duplicative lawsuits. The liberal justices focused on what Justice Ketanji Brown Jackson dubbed the “catch me if you can” problem of the executive branch losing constantly in court but continuing to apply an “illegal” policy to anyone who couldn’t afford a lawyer.
(3) Congress has often authorized judicial relief against the executive in terms that assume a broad power to enjoin unlawful action. The Administrative Procedure Act, which is the vehicle for many of these suits, tells courts to “hold unlawful and set aside agency action” that fails to meet its standards. It authorizes “actions for declaratory judgments or writs of prohibitory or mandatory injunction” and provides that “the reviewing court . . . may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.” This is broad authorizing language that never suggests a geographical limit to where an unlawful action is to be enjoined, set aside, or postponed.
In the long run, the legality of executive branch actions can be settled by the Supreme Court. But as Justice Brett Kavanaugh noted, citing Biden-era rules such as the vaccine mandate and eviction moratorium that took a year or more to reach the Court, it can matter quite a lot whether or not an executive rule is in effect while the cases play out in court. Justice Amy Coney Barrett quizzed Sauer on when the solicitor general’s office will follow lower-court decisions — a query that led him to note that the office’s policies had always been somewhat nuanced in this area. The injury to individual rights is obvious enough when the president or the executive agencies are acting illegally for years until the Court weighs in (Joe Biden did this openly in the eviction moratorium case), but the injury to the public interest when the executive can’t act on the nation’s behalf for half of his elected term is also significant — especially in areas such as national security, public safety, and public health.
The states, meanwhile, emphasized at argument how disruptive it would be to have different citizenship rules temporarily in place in different states — that being exactly the situation the 14th Amendment’s citizenship clause was intended to avoid. The administration responded — and this is its strongest case — that it was ridiculous to complain that there was insufficient practical guidance from the federal government on how to implement the executive order when the executive branch had been enjoined from even studying the issue. It will not surprise me if that aspect of the injunctions comes in for criticism when the Court issues opinions.
There are two wrinkles that make this case different from other nationwide injunction cases. One, which would seem to make this an appealing vehicle for the Trump administration, is that it’s a case about an executive order rather than agency action, so the APA doesn’t apply. But the other cuts against it: There’s no reason in this case to wait for the legal questions to percolate through the lower courts, because really only the Supreme Court can decide to overturn or limit Wong Kim Ark. Nor is this a case with any factual record that needs developing, unlike in agency cases where a determination of what’s “arbitrary and capricious” or in cases where a constitutional challenge under the equal protection or due process clauses require some assessment of the facts. The entire question at issue can be decided on the basis of whether the Supreme Court, in 1898, correctly interpreted how constitutional text was understood in 1868.
That’s bad news for the administration’s position in making this its test case, because it loses some of the most forceful concerns that arise in other cases about the poor quality of justice that can be delivered when individual district judges turn themselves into instant arbiters of national executive policy.
History and Practice
Justice Clarence Thomas has questioned, as far back as his concurring opinion in Trump v. Hawaii (2018), where in the Constitution or statutes the courts are given the authority for nationwide injunctive relief that benefits people who are not parties to the court. Some of his concerns have been shared by Alito and Gorsuch. Thomas, characteristically, focused on the history and the rarity of true nationwide injunctions before the 1960s (the class action rule in its modern form also dates only to 1966). Thomas’s case from history was much contested: Sotomayor cited a few examples from Supreme Court cases as far back as the 1920s, while Jackson argued that two centuries of Supreme Court precedent modeling the equitable powers of federal courts on the practices of the English Court of Chancery at the Founding should be disregarded because the president, unlike the king, can be subjected to court orders. Jackson also emphasized, as she has written in prior APA cases as a district judge, that nationwide injunctions arise from the fact that the defendant (the federal executive) is properly before the court.
The history alone may not move five justices, given how little the Constitution’s text says on the topic and how central the question is to practical matters of the administration of the judicial power. As far back as Marbury v. Madison, the Court has taken care to define the judicial power in ways that strike some sort of balance between a law-free executive branch and a judiciary with a general supervisory warrant. If Roberts and some of his colleagues are convinced that they are being asked to do something unworkable to unsettle that balance, they won’t.
A case worth watching for some clues will be Laboratory Corp. of America Holdings v. Davis, which was argued two weeks ago and is likely to be decided before CASA. The Lab Corp. case is framed as a question of Article III theory: Can a class action be brought when some class members would not have standing to sue, or must the class consist only of legal claims that each, individually, could have been brought in federal court? The justices, however, seemed disinclined at the argument to stand on Article III theory if they are not offered a practical way to make class actions work under Rule 23 of the Federal Rules of Civil Procedure if the rule against uninjured class members is absolute, rather than being an aspect of the Rule 23 practical inquiry into the manageability of the case as a class action.
This case could easily end the way the Lab Corp. case seems headed: not with a bright-line rule that limits the judicial power, but with some effort at limiting principles handed down to try to get district courts to restrain themselves. For that to be a workable solution, Roberts and his colleagues may have to take more cases on that TikTok timeline.
Standing Aside
Finally, there are standing-to-sue issues in this case, focusing mainly around whether states have the right to sue over the birthright citizenship of their citizens. States argue that they are harmed by Trump’s order in a number of ways (such as increased paperwork) that were not found to be a basis for standing in the Obamacare mandate case. But the states are not the only challengers here, and the argument didn’t focus very much on the standing issues.
Finally, there’s the sleeping elephant in the room: Congress. Many of the worst features of nationwide-injunction litigation could undoubtedly be fixed by the two parties getting together to find common ground and write a statute that reforms forum-shopping, provides three-judge district courts and expedited appeals for cases seeking nationwide relief, prevents successive suits for the same relief, offers statutory standards for injunctions, and otherwise does the sort of lawmaking that is supposed to come from the lawmaking branch — not from a war of attrition between the imperial executive and the imperial judiciary.