The right-wing justices on Thursday were amenable to the Trump administration’s bid to pare back universal injunctions, a type of relief where lower-court judges block government policies for the whole country and not just the parties who brought the case.
The case stems from Trump’s perhaps most blatantly unconstitutional executive order, in which he seeks to rip up the United States’ sacrosanct guarantee of birthright citizenship, enshrined in the 14th Amendment.
The administration is challenging a handful of district court orders blocking his executive action, arguing that these judges should only have the authority to block the order for specific states or organizations.
There are good-faith arguments against universal injunctions, which both political parties routinely seek at friendly venues to block executive branch actions when the opposition controls the White House.
“This case is very different from a lot of our nationwide injunction cases in which many of us have expressed frustration at the way district courts are doing their business,” Justice Elena Kagan said. “Because of the forum selection process, a party goes to one place — in the first Trump administration it was all done in San Francisco, in the next administration, it was all done in Texas. There is a big problem created by that mechanism.”
But, she added, that “is not this case. This case, what’s problematic about it is that the courts keep deciding the same way and nobody really thinks that the lower courts are gonna do anything different.”
She and Justice Sonia Sotomayor kept circling around this same point: The government keeps losing on the merits of their birthright citizenship gambit in every court, yet is asking the Supreme Court for a decision that would clear the way for it to enforce the order for nearly everyone in the country, at least until the case gets up to the high court on the merits.
The conservative justices, though, sounded more amendable to the Trump administration’s arguments, which involve a possible workaround of a class certification to prevent each individual from having to bring a lawsuit herself. They were interested in the logistics of how eliminating or narrowing universal injunctions would work: when would they still be available, how would you get cases up through the appellate process quickly?
Chief Justice John Roberts, likely a vote the liberal wing would need to reject Trump’s case, lobbed softballs to Solicitor General John Sauer to make it clear that he personally isn’t worried about the workability of a new world order.
“We’ve been able to move much more expeditiously — I think we did the TikTok case in a month,” he said, adding: “Is there any reason in this particular litigation that we would be unable to act expeditiously?”
The outcome of the case will have massive ramifications, both for the application of the birthright citizenship policy and for Trump’s policies at large. With congressional Republicans largely abdicating any oversight role over the administration, the courts have stood as the surest bulwark against many of the Trump administration’s actions. Should Trump succeed in this part of the case, courts will find their power to stop his unlawful acts greatly diminished.
“As far as I see it, this order violates four Supreme Court precedents and you are claiming that both the Supreme Court and no lower court can stop an executive universally from violating those holdings by this court,” Sotomayor said, prompting disagreement from Sauer.
I’m sure Thomas and Co can live with that when a Qatari 747 shows up on his doorstep. I hear that is the current ‘gratuity’ for a US government official these days.
I’m seeing media organizations all over the place on birthright citizenship.
They’ll screw us again.
"Can you say ‘bad faith?’
Ugh. The type of nationwide / universal injunctions during the first Trump admin were not the same as the crap the Republifascists were pushing during the Biden admin. The injunctions they sought were highly problematic because they couldn’t articulate a reasonable harm of the policy in question (Kacsmaryk’s mifepristone antics, for example). It always boiled down to “we don’t like it; stick your head in doo doo.” The EOs in the first Trump admin (eg. Muslim ban) and current stuff like removing birthright citizenship have OBVIOUS harms and are a clear departure from the status quo ante. It’s not even in the same ballpark. I’m sure if I tried really hard I could come up with a good bothsides argument about some nationwide injunction during the first Trump admin that really probably shouldn’t have been nationwide, but Jesus Herbert Walker Christ that’s not what the bulk of this stuff has been! It kinda pisses me off that Kagan was willing to make that false equivalency in service to her point.
Pretty rich for Roberts to extol how rapidly the Supreme Court can respond, when he let the presidential immunity case drag out for unnecessary months. By the time they ruled, it was too late to do anything except screw up the case, and allowed Trump to run out the clock.
So tell me again how expeditiously the Supreme Court can act on matters of constitutional importance, John. You left out the unsaid part-- “when we want to.”