The Supreme Court heard oral arguments on President Trump’s executive order denying birthright citizenship to children born in the US to parents who are “unlawfully” in the country. The order has been blocked by multiple lower courts through nationwide injunctions.
The Trump Administration petitioned the Supreme Court to halt the nationwide injunctions, except as applied to specific plaintiffs and states involved in the lower court decisions. U.S. Solicitor General D. John Sauer argued that nationwide injunctions contradict the equitable tradition that prohibits applying injunctions to individuals not involved in lawsuits.
Sauer invoked constitutional originalism, telling the Court that the order “reflects the original meaning of the 14th Amendment,” which, he argued, was only intended to apply to the children of former enslaved persons. Justice Clarence Thomas started the questioning, asking Sauer about the origins of nationwide injunctions.
Thomas seemed to suggest that they lack a historical analog, signaling problems under the constitutional originalism lens favored by the Court’s conservative majority. Sauer agreed, arguing that the closest historical analogs involved discrete claims for discrete groups, but never broad, nationwide relief.
Justice Sonia Sotomayor pushed back on Sauer’s historical arguments and emphasized the likely unconstitutionality of the order, which, as she sees it, violates at least four Supreme Court precedents. Chief Justice John Roberts seemed to see value in Sauer’s percolation theory and did not seem too concerned about inefficiencies arising from removing nationwide injunctions.
Justice Elena Kagan asked whether getting rid of nationwide injunctions would force every single person affected by the executive order to bring an individual lawsuit. Justice Neil Gorsuch emphasized the hurdles of class certification, questioning if they were appropriate amid immediate and ongoing harms caused by the order.
Kelsi Corkran, representing the private plaintiffs challenging the order, urged the Court to reject the government’s stay of the preliminary injunction, highlighting the unconstitutionality of the order and arguing that the government is wrong in thinking injunctions cannot apply to nonparties. Justice Ketanji Brown Jackson asked Corkran to clarify how the Court should view nonparties who are served by nationwide injunctions.
The oral argument did not present a clear outcome, with many justices and advocates pointing out that the government does keep losing in the lower courts, and the order appears unconstitutional on its face. A decision is expected by late June or early July.
In similar cases, the use of executive orders has been a subject of debate, with some arguing that they are necessary to prevent harm to affected individuals, while others see them as an overreach of judicial power. The Supreme Court’s decision in this case will likely have significant implications for the use of nationwide injunctions in the future.
The Court’s consideration of the validity of nationwide injunctions is complex, with both sides presenting strong arguments. While the government argues that nationwide injunctions are an abuse of judicial power, the plaintiffs argue that they are necessary to prevent harm to affected individuals, such as those affected by human rights violations.
It is a complex issue.
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