Trump’s birthright citizenship order may not fly — but activist judges could soon find themselves grounded

The U.S. Supreme Court
heard oral arguments Thursday in the case Trump v. CASA Inc., along with the related cases Trump v. Washington and Trump v. New Jersey, concerning President Donald Trump’s executive order ending birthright citizenship for children of illegal aliens.

The court was focused on procedural questions — particularly with regard to federal judges’ apparent efforts to direct U.S. policy through the imposition of nationwide injunctions — rather than the constitutionality of the order, although its legality came up on occasion.

The court, which is
expected to render its decision by late June or early July, may end up blocking the order but possibly also reining in meddlesome federal judges.

Background

Trump issued the executive order ending birthright citizenship on Jan. 20.

Days later, a Seattle-based U.S. district judge, responding to a lawsuit brought by four Democrat-led states, deemed the order “blatantly unconstitutional,” and slapped it with a nationwide injunction — one among the 40 issued in recent months that have
prompted accusations of a “judicial coup.” A Biden judge and an Obama judge similarly blocked the order before courts ruled on the legal merits.

Denied additional sets of eyes on the matter by federal appeals courts, the Trump administration
asked the U.S. Supreme Court in March for a partial stay but also drew the high court’s attention to the efforts of district judges to “govern … the whole Nation from their courtrooms.”

‘Enough is enough.’

Attorneys for the government noted in their application for a partial stay that “such universal injunctions, though ‘a relatively new phenomenon,’ have become ubiquitous, posing ‘a question of great significance that has been in need of the Court’s attention for some time.'”

The Congressional Research Service
indicated there were at least 17 cases of national injunctions between Jan. 20 and March 27. That number has since risen to at least 40 — including 35 from the same five judicial districts. According to the government’s application, district courts issued more nationwide injunctions and temporary restraining orders in the month of February than through the first three years of the Biden administration. Throughout the entirety of Barack Obama’s presidency, only 19 were issued.

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Attorneys for the government argued further that nationwide injunctions, which have “reached epidemic proportions since the start of the current Administration,” transgress constitutional limits on courts’ powers; are incompatible with foundational limits on equitable jurisdiction; are bad for the rule of law; risk the perception of the federal courts as an apolitical branch; and “compromise the Executive Branch’s ability to carry out its functions, as administrations of both parties have explained.”

“This Court should declare that enough is enough before district courts’ burgeoning reliance on universal injunctions becomes further entrenched,” wrote the government’s attorneys. “Only this Court’s intervention can prevent universal injunctions from becoming universally acceptable.”

The ask: Narrow down injunctions to the actual parties in the case.

Dr. John C. Eastman, founding director of the Claremont Institute’s Center for Constitutional Jurisprudence,
noted in a Blaze News op-ed Thursday that both conservative and liberal justices on the high court have previously criticized the practice of single federal district courts lobbing nationwide injunctions to block policies enacted by the political branches.

Justice Elena Kagan, for instance, reportedly suggested, “It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for … years.”

On Thursday, the government appeared keen to draw out those outstanding concerns.

Showtime

There was some
discussion during oral arguments about the legality of the order, what it would look like if partially implemented, and the government’s primary contention that the Citizenship Clause of the 14th Amendment related to the children of former slaves, not those of illegal aliens who — as U.S. Solicitor General D. John Sauer put it — “weren’t even present as a discrete class at that time.”

Sauer assigned more energy, however, to hammering home the point that the nationwide injunctions are a “bipartisan problem” that exceed the judicial power granted in Article III of the Constitution; require judges to make “rushed, high-stakes, low-information decisions”; require the “government to win everywhere while the plaintiffs can win anywhere”; and “prevent the percolation of novel and difficult legal questions” in the lower courts.

His efforts were not in vain.

‘We survived until the 1960s without universal injunctions.’

The justices seriously considered the legal basis for and impact of scrapping universal injunctions as well as alternative tools for expeditious legal action, including class action and certiorari before judgment.

After expressing a desire to temporarily “put out of our minds the merits of this and just look at the abstract question of universal injunctions,” Justice Samuel Alito suggested that there are 680 district court judges, and while dedicated and scholarly, “sometimes they’re wrong.”

“All Article III judges are vulnerable to an occupational disease, which is the disease of thinking that ‘I am right and I can do whatever I want,'” said Alito.

RELATED: The legal case against anchor-baby citizenship revisited

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Whereas colleagues on a multimember appellate court could keep that “occupational disease” at bay, Justice Alito suggested that a trial judge is relatively unbounded and unchecked as “the monarch of that realm.”

New Jersey Solicitor General Jeremy Feigenbaum, who represented the states challenging Trump’s order, characterized nationwide injunctions as inconvenient, potentially frustrating but necessary — something that should not be “categorically off the table.”

Justice Clarence Thomas noted, however, that “we survived until the 1960s without universal injunctions.”

‘At stake is nothing less than the legitimacy of the last election.’

Chief Justice John Roberts added that in recent months, the Supreme Court was able to take expeditious action — the suggestion being a nationwide injunction is unnecessary to achieve a similar end.

Justice Neil Gorsuch cast doubt on the relative timeliness of a class action, noting that certifying a class takes time, and the process involves other hurdles,
reported SCOTUSBlog.

Justice Sonia Sotomayor suggested that if Sauer was right in his assertion that Article III precludes universal injunctions, then class actions would similarly be illegal, a suggestion Sauer disagreed with “profoundly.”

While the conservative justices’ receptivity Thursday to the government’s arguments is no guarantee of a partial win on the matter of nationwide injunctions, it is a hopeful sign for critics such as Stephen Miller, White House deputy chief of staff, who
asked earlier this year, “Is there no end to this madness?”

Eastman noted, “Whatever the court decides, the consequences will ripple through the hundreds of lawsuits filed against the president’s executive actions. At stake is nothing less than the legitimacy of the last election — and whether unelected district judges can override the policies chosen by the American people.”

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