Supreme Court takes on birthright citizenship: Liberals balk at Trump argument to end nationwide injunctions
The Supreme Court is hearing oral arguments Thursday in a challenge to President Donald Trump‘s effort to end birthright citizenship, a case that could more broadly call into question the powers of lower courts to block executive branch actions.
U.S. Solicitor General John Sauer used the bulk of his opening arguments Thursday to reiterate their view that universal injunctions exceeded lower courts’ Article III powers under the Constitution, noting that the injunctions “transgress the traditional bounds of equitable authority,” and “create a host of practical problems.”
Universal injunctions “require judges to make rushed, high stakes, low information decisions,” he said. “They operate asymmetrically, forcing the government to win everywhere,” and “invert,” in the administration’s view, the ordinary hierarchical hierarchy of appellate review. They create the ongoing risk of conflicting judgments.”
During a five-minute rebuttal period, Justice Sonia Sotomayor questioned Sauer on what authorities the courts, under their argument, would have in this scenario – an important line of questioning likely to be revisited again.
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“Your theory here is arguing that Article III and principles of equity [clause] both prohibit federal courts from issuing universal injunctions to have your argument,” she said.
“If that’s true, that means even the Supreme Court doesn’t have that power,” she noted later.
Justice Elena Kagan, meanwhile, noted the purely practical problems that the high court would face in trying to weigh in on all the issues heard now by the lower courts, which have already been hit by hundreds of federal lawsuits in Trump’s second term.
She also noted the adminstration’s poor track record with the lower courts.
“This is not a hypothetical; this is happening out there,” she told Sauer. “Every court is ruling against you.”
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As expected, several conservative justices on the court expressed skepticism on the use of universal injunctions.
Justice Clarence Thomas, who in 2018 described their use as “legally and historically dubious,” noted Thursday that it was not until 1963 that the first universal injunctions were used, appearing to agree with the government’s assertion that they could survive without them.
But Justice Samuel Alito, for his part, expressed a somewhat surprising degree of skepticism.
He asked Sauer about the possibilities of plaintiffs seeking emergency class certification, and de facto nationwide relief via other avenues, to highlight the point that blocking universal injunctions would not resolve the practical problems raised by the government.
And if that’s the case, he said, “then what is the point of this argument about universal injunctions?”
Justices on the high court agreed in April to hear the case, which centers on three lower courts that issued national injunctions earlier this year blocking Trump’s executive order on birthright citizenship. The order reinterprets the 14th Amendment to deny automatic U.S. citizenship to children born in the U.S. if their mother is unlawfully present or temporarily in the country, and if their father is neither a U.S. citizen nor a lawful permanent resident at time of birth. Trump’s action remains on hold nationwide pending Supreme Court intervention.
The Trump administration asked the Supreme Court in March to review the case, arguing that the three lower courts in question had exceeded their authority in issuing the universal injunctions.
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“These injunctions exceed the district courts’ authority under Article III [of the Constitution] and gravely encroach on the President’s executive power under Article II,” U.S. Solicitor General John Sauer told justices on the high court in a filing before arguments began. “Until this Court decides whether nationwide injunctions are permissible, a carefully selected subset of district courts will persist in granting them as a matter of course, relying on malleable eye-of-the-beholder criteria.”
Plaintiffs told the high court that there is no reason for them to intervene here, objecting both to the executive order in question, which one lawyer described in a brief as “citizenship stripping,” as well as any effort to block the nationwide injunctions. The lower court orders “preserve the status quo that has existed for more than a century, and the federal government suffers no harm, much less irreparable harm, by continuing to follow long-settled laws while the appeals proceed,” Nicholas Brown, the Attorney General of Washington state, said in its filing.
Oral arguments are expected to focus not only on the lower courts that blocked Trump’s birthright citizenship order – but also on whether federal judges can issue universal injunctions halting executive actions nationwide. The Supreme Court has never ruled directly on the practice, though several conservative justices, including Justice Thomas, have raised concerns.
A Supreme Court decision here could have sweeping national implications, setting a precedent that would affect the more than 310 federal lawsuits that have challenged White House actions since Trump’s second presidency began on Jan. 20, 2025, according to a Fox News data analysis.
The consolidated cases before the court are Trump v. CASA, Trump v. the State of Washington, and Trump v. New Jersey.
It’s unclear when the justices will rule, but their decision to fast-track the case means an opinion or order could come within weeks – or even days.
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