Mother Jones illustration; Bill Clark/CQ Roll Call/Zuma; Tim Mossholder/Unsplash
In one of the most anticipated decisions of this Supreme Court term, the justices today granted President Donald Trump’s emergency applications to stay a series of district court orders that had blocked his efforts to restrict birthright citizenship and upend who gets to be an American citizen.
“An infant would be a United States citizen and full member of society if born in New Jersey, but a deportable noncitizen if born in Tennessee.”
The justices decided in a 6–3 ruling that nationwide preliminary injunctions “likely exceed the equitable authority that Congress has given to federal courts.” The highly consequential decision takes away power from lower courts to rein in the federal government. For the majority, Justice Amy Coney Barrett wrote the injunctions should be narrowed “only to the extent that [they] are broader than necessary to provide complete relief to each plaintiff with standing to sue.”
In a dissenting opinion, Justice Ketanji Brown Jackson called the majority’s decision “profoundly dangerous” because it “gives the Executive the go-ahead to sometimes wield the kind of unchecked, arbitrary power the Founders crafted our Constitution to eradicate.” Justice Sonia Sotomayor, also dissenting, blasted the court for “shamefully” playing along with the government’s “gamesmanship.” She noted the Trump administration did not try to argue that the birthright executive order is constitutional—an “impossible task”—but instead asked the justices to “hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone.”
The Trump administration—through the birthright citizenship case—argued that lower courts should not have as many tools to stand in the way of its agenda; the Supreme Court agreed. It enraged Sotomayor. “The rule of law is not a given in this Nation, nor any other. It is a precept of our democracy that will endure only if those brave enough in every branch fight for its survival,” she wrote. “Today, the Court abdicates its vital role in that effort. With the stroke of a pen, the President has made a ‘solemn mockery’ of our Constitution.”
The issue before the justices didn’t directly concern the legality of Trump’s executive order reinterpreting the 14th Amendment of the Constitution to deny automatic citizenship to the US-born children of certain immigrants. Instead, they addressed a procedural question: whether the lower courts had the authority to block the executive branch from enforcing the order across the country. The decision comes after the justices in April consolidated three concurrent lawsuits and took up the government’s emergency appeal asking the high court to stay nationwide injunctions issued by judges in Maryland, Washington, and Massachusetts—and to allow the administration to partially enforce the executive order except for the plaintiffs and individuals born in the states covered by the injunctions.
Without the nationwide injunctions, an unknown number of children born on American soil every year would be deprived of citizenship in violation of the constitutional guarantee that “all persons born or naturalized in the United States” are citizens of the country. In defiance of the 14th Amendment and over 125 years of Supreme Court precedent, Trump’s day-one executive order instructs government agencies to stop issuing documents recognizing citizenship for the US-born children of undocumented immigrants and visa holders.
Expecting immigrant mothers, civil rights groups, and several states promptly sued the Trump administration, arguing the executive order violates the 14th Amendment and the Immigration and Nationality Act. Three days after Trump signed the presidential proclamation, a federal judge in Seattle dealt the first blow to the president’s plans and temporarily blocked the executive order, calling it “blatantly unconstitutional.” Addressing lawyers for the government, Reagan-appointed District Judge John C. Coughenour said, “I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order.” Coughenour later issued a preliminary injunction, finding that “the Government has no legitimate interest in enforcing an Order that is likely unconstitutional and beyond its authority.”
In early February, District Judge Deborah L. Boardman in Maryland issued a preliminary injunction in a case brought by two nonprofits and five pregnant immigrant women, stopping the executive order’s implementation nationwide. She found that plaintiffs were likely to succeed in showing that the administration’s efforts are unconstitutional. “The executive order conflicts with the plain language of the 14th Amendment, contradicts 125-year-old binding Supreme Court precedent and runs counter to our nation’s 250-year history of birthright citizenship,” Boardman said. “No court in the country has ever endorsed the president’s interpretation. This court will not be the first.” A federal judge in Massachusetts also subsequently ruled against the administration’s attack on birthright citizenship.
After three different federal appeals courts turned down the Trump administration’s requests to limit the scope of the district courts’ orders, the government went to the Supreme Court. In a rare move, the court granted oral arguments in an emergency docket case. During arguments May 15, the justices grappled with whether, and how, to limit lower courts’ ability to issue nationwide injunctions, a controversial legal instrument that critics say hamstrings the government and incentivizes the practice of forum shopping.
Sotomayor noted Trump’s birthright citizenship executive order violated at least four Supreme Court precedents, including the 1898 landmark case of US v. Wong Kim Ark. In that decision, the justices found that the US-born son of Chinese immigrants who couldn’t naturalize because of exclusion laws was, in fact, a citizen of the United States. Justice Elena Kagan also pressed the solicitor general, D. John Sauer, on how to achieve appropriate relief for plaintiffs, absent a nationwide injunction, if the court came to the conclusion that the executive order is unlawful. Pending litigation, Kagan asked him, “there are going to be an untold number of people who, according to all the law that this court has ever made, ought to be citizens who are not being treated as such?”
In a high-stakes case such as this, the nationwide injunctions have prevented a patchwork scenario in which restrictions on birthright citizenship could be enforced in some states and not in others, where an injunction remained in place. “Such an arrangement would threaten to fundamentally fracture the country,” the plaintiffs argued in a brief to the Supreme Court. “If a child’s citizenship depended on the state in which they were born, it would create a situation much like the one that existed between slave and free states, which produced Dred Scott and ultimately the Civil War.” They went on: “An infant would be a United States citizen and full member of society if born in New Jersey, but a deportable noncitizen if born in Tennessee.”