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“The Supreme Court on Thursday was divided over whether a federal judge has the power to block President Donald Trump’s executive order ending birthright citizenship while the case moves through the lower courts… Although several justices in recent years have expressed skepticism about so-called nationwide injunctions, which bar the government from enforcing a law or policy anywhere in the country, during more than two hours of oral arguments, it was not clear whether a majority of the justices were ready to bar such injunctions altogether…
“Arguments on Thursday mostly steered clear of the question of whether Trump’s order is legal under the Constitution – what is known as the merits of the case – instead focusing mostly on procedural questions. In particular, some justices were dubious about whether a proposed alternative to universal injunctions, a class action, would actually be an improvement, while others seemed to suggest that these disputes would be especially inappropriate ones to reach the question because, in their view, Trump’s executive order is so clearly unconstitutional.” SCOTUSblog
Here’s our previous coverage of birthright citizenship. The Flip Side
The left defends nationwide injunctions, arguing that they are necessary to protect against illegal policies.
“[Nationwide injunctions] didn’t become a regular occurrence until 2015. Back then, they were a thorn in the side of a Democratic Administration… Questions about the practice were exacerbated by litigants’ blatant forum shopping…
“Fifty-nine of the sixty-four injunctions against Trump during his first term were issued by judges appointed by Democrats; all fourteen against Biden came from Republican-nominated judges. This is not a good look…
“But although there are legitimate questions about whether lower-court judges have overstepped, there are also, as Thursday’s arguments illustrated, situations in which broad injunctions may be necessary. And birthright citizenship is particularly ill-suited as a vehicle for curbing them. Citizenship is, by definition, a national issue. It makes little sense to have a patchwork nation in which, while the question wends its way through the courts, children born in one state are citizens and those born in another are not.”
Ruth Marcus, New Yorker
“In a world without nationwide injunctions: Every parent who gives birth to a child potentially covered by the executive order would have to sue on their child’s behalf to get it blocked. (Sauer acknowledged that the plaintiffs could bring a nationwide class-action lawsuit but insisted he would vigorously oppose certifying the class.)…
“Justice Sonia Sotomayor framed the problem in terms that might resonate more with conservatives. ‘So, when a new president orders that, because there’s so much gun violence going on in the country, he comes in and he says, ‘I have the right to take away the guns from everyone,’ and he sends out the military to seize everyone’s guns, we and the courts have to sit back and wait until every named plaintiff whose gun is taken comes into court?’ she asked.”
Matt Ford, New Republic
“Consider what an end to nationwide injunctions would mean: A challenge to a government policy would have to be brought separately in each of 94 federal districts and ultimately be heard in every federal circuit court. It would create inconsistent laws — in the case of citizenship, a person born to immigrant parents in one federal district would be a citizen, while one born in identical circumstances in another district would not be — at least until, and unless, the Supreme Court resolved the issue…
“The president’s primary argument is that nationwide injunctions prevent the executive branch from carrying out its constitutional duties. But as Justice Elena Kagan pointed out, if the president is violating the Constitution, his action should be stopped. The oral arguments left no clear sense of how the court will decide the issue.”
Erwin Chemerinsky, Los Angeles Times
The right is critical of nationwide injunctions, arguing that they give individual judges too much power.
The right is critical of nationwide injunctions, arguing that they give individual judges too much power.
“The universal injunction gives individual judges extraordinary power. Don’t like a law passed by Congress? Gone. Don’t like an agency’s regulation? Dead. Don’t like one of the president’s policies? Sayonara… Nowhere does the Constitution say that district courts have this immense power. Nor has Congress ever authorized courts to issue universal injunctions…
“Yet individual judges around the country still claim they have the authority to bring the entire federal government to a screeching halt with the stroke of a pen. To make matters worse, judges often issue these universal injunctions after preliminary hearings with limited debate by the parties. There’s no jury. There’s no trial. There’s no real testing of the evidence at all… That’s why judges are able to shut down federal policies nationwide within days or even hours.”
Sen. John Kennedy, Fox News
“Judges strictly adhered to ruling on cases and controversies for the parties before [and] up until the 1960s — and the practice of issuing universal injunctions only exploded in the last few decades… During his first term, courts hit Trump with more than half of all universal injunctions — 64 of them — entered between 1963 and 2023…
“In notable instances, the Supreme Court ultimately overturned these rulings. But the public did not get the policies they voted for enacted while those cases were litigated… Will the Supreme Court stop radicals in robes from subverting the president and imperiling the separation of powers via rule by universal injunction? Or will it continue allowing any one of 680 district court judges to nullify the votes of tens of millions of Americans by hamstringing the commander in chief?”
Benjamin Weingarten, New York Post
“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, [Justice] Alito added, but district judges in their own courtrooms are ‘the monarch of that realm.’…
“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.”
Dan McLaughlin, National Review
