The Supreme Court heard arguments on Thursday regarding the Trump administration’s attack on birthright citizenship — the constitutional right to citizenship of any child born on U.S. soil. The ruling could reshape the judicial system if things swing in Trump’s favor. The judges aren’t being asked to rule directly on the constitutionality of the 14th Amendment, but rather on the ability of lower federal courts to block the president’s executive orders — regardless of whether they are constitutional.
The case centers on a challenge two immigrant rights groups, CASA and the Asylum Seeker Advocacy Project (ASAP), brought against the administration following Donald Trump’s January executive order attempting to end birthright citizenship. The order was blocked by multiple federal courts, and the government is arguing before the Supreme Court that these lower courts do not have the authority to issue “universal injunctions” to block directives issued by the executive branch.
While the justices seemed broadly skeptical of Trump’s efforts to outright ban birthright citizenship, some of the court’s more conservative justices seemed open to placing limitations on the power lower courts have to block the president’s agenda. It would be a roundabout way for the conservative-controlled Supreme Court to allow the Trump administration to implement its platform with little interference. On the other hand, it would deal a potential death blow to the power of the judiciary as a check and balance on the other branches of government.
Justice Ketanji Brown Jackson summed up the government’s position in a heated exchange with U.S. Solicitor General John Sauer. “Your argument turns our justice system into a catch me if you can kind of regime from the standpoint of the executive where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights,” the liberal justice said.
Sauer argued on behalf of the government that groups seeking a nationwide injunction against a presidential directive or order could instead file a class-action lawsuit to seek relief against the government.
“Let’s assume for the purpose of this that you’re wrong about the merits, that the government is not allowed to do this under the Constitution,” Jackson responded. “It seems to me that your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to file a lawsuit, hire a lawyer, et cetera. And I don’t understand how that is remotely consistent with the rule of law.”
At one point, Sauer referenced the ancient English Court of Chancery, which was barred from leveling enjoinments against English kings during its existence. Jackson slapped down the comparison. “The fact that courts back in the English Chancery couldn’t enjoin the king, I think is not analogous or indicative of our system,” she said. “The executive is supposed to be bound by the law, and the court has the power to say what the law is. The court can say, ‘This conduct is unlawful, and you have to stop doing it.’”
The court’s conservatives seemed more amenable to the administration’s argument about the power of the lower courts. At one point, Justice Clarence Thomas said that the United States had “survived until the 1960s without universal injunction.” Justice Samuel Alito, one of the most conservative and Trump-aligned members of the court, said during his line of questioning that district court judges — and other Article III judges — “are vulnerable to an occupational disease. Which is the disease of thinking I am bright and I can do whatever I want.”
Justice Brett Kavanaugh seemed open to Sauer’s argument that class-action lawsuits could be an adequate way for Americans to challenge the order. “Why doesn’t that solve the problem?” Kavanaugh asked. Justice Neil Gorsuch also appeared interested in class-action lawsuits as a potential solution.
Kavanaugh seemed a little more skeptical about to the push to end birthright citizenship, questioning Sauer about how the Trump administration could possibly enforce a change in the law. “The day after it goes into effect. It’s just a very practical question. How it’s going to work. What do hospitals do with a newborn?” Kavanaugh asked.
Sauer gave a roundabout answer, first claiming that federal officials would simply not “accept documents that have the wrong designation of citizenship,” and then that those same federal officials would simply have to “figure that out,” or potentially make parents present their immigration documents after a birth.
Kavanaugh interjected to ask precisely how the government planned to enforce the law. Sauer ultimately admitted: “We don’t know.”
Justice Sonya Sotomayor, a liberal, noted that the executive order repealing birthright citizenship “violates four Supreme Court precedents,” on its face. As to the government argument, Sotomayor said that the Trump administration’s desired limitations on judges powers would mean that “that both the Supreme Court and no lower court” could stop the executive from violating established law and precedent. In another moment, liberal Justice Elena Kagan summarized much of the sentiment expressed by the liberal justices during the hearing. ”If I were in your shoes, there’s no way I’d approach the Supreme Court with this case,” she said.
Justice Amy Coney Barrett, who drew the ire of the right when she sided with liberals on a decision about Trump’s use of the Alien Enemies Act to deport migrants, could wind up being a key vote. She notably seemed incredulous when Sauer told her outright that it was the policy of the Department of Justice to “generally […] but not necessarily,” respect rulings from lower courts.
“You would respect the opinions and the judgments of the Supreme Court and you’re saying you would respect the judgment, but not necessarily the opinion of a lower court?” she asked.
“In the vast majority of instances our practice has been to respect the opinion in the circuits as well, but my understanding is that has not been a categorical practice in the way respect for the precedents and the judgements of the Supreme Court has been,” he said.
The Supreme Court may not issue a final ruling on the case for some time, but after granting presidents virtually unquestioned immunity from prosecution last year, it wouldn’t be surprising if the court’s conservative majority erased yet another check on Trump’s abuses of the nation’s highest office.
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