The injunction against national injunctions
Defending the birthright
The Trump Administration got a relatively rare win last week in a Supreme Court decision regarding Trump’s attempt to reverse the Constitution’s birthright citizenship clause. The most interesting part of the decision was that the Supreme Court did not rule on birthright citizenship even though that issue was the basis for the case. Hot takes saying that the Court allowed Trump to ignore the birthright citizenship precedent are wrong.
The case before the Court was focused on a far more narrow question: whether lower court judges have the authority to issue nationwide injunctions that bind areas outside their jurisdiction. The question of nationwide injunctions has been a bugaboo in conservative legal circles for far longer than Trump has been on the scene.
Nationwide injunctions can be traced back to the 1960s when there were a number of nationwide injunctions related to the Civil Rights movement, but the judicial tool really became common in the modern era of the Obama and Trump presidencies. The practice seems to have evolved as an answer to presidents increasingly ruling by Executive Order as a means of bypassing a divided and gridlocked Congress.
While I’m not a fan of nationwide injunctions, I’m also not a fan of making it tougher for Americans to fight abuses of power and a government that continues to encroach on the Constitution. The right to judicial redress is particularly important when the issues at hand include the very status of Americans as citizens, the ability to fight wrongful deportation, and the possibility that they will be subjected to indefinite detention without due process.
Into that mix comes Trump v. CASA, a case that challenged Trump’s Executive Order that denied citizenship to people born to illegal aliens. The Fourth Circuit of the US Court of Appeals ruled against the Administration, adding to a string of Administration losses, and applied a nationwide injunction against enforcement of the Order. The question that the Administration brought to the Supreme Court was whether the lower courts had the authority to issue a nationwide injunction to stop implementation of the Order.
As Justice Amy Coney Barrett wrote for the majority in the “partial stay” granted by the Court, “The applications do not raise—and thus the Court does not address—the question whether the Executive Order violates the Citizenship Clause or Nationality Act. Instead, the issue the Court decides is whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions.”
The Court decided that question by finding, “Universal injunctions likely exceed the equitable authority that Congress has given to federal courts,” while at the same time referring the question of the constitutionality of the Order back to lower courts, saying “The lower courts should determine whether a narrower injunction is appropriate….”
Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh joined the majority.
While I do find Trump’s Executive Order blatantly and egregiously unconstitutional, I also find it hard to argue with Barrett’s contention that “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”
It is true that nationwide injunctions are not specifically permitted by the Constitution or by statute, but the question is whether the greater wrong is in permitting the Administration to abuse its authority under the Constitution or allowing courts more leeway in stopping executive abuses of power. Trump’s Order is unlawful on its face, while it can be argued that nationwide injunctions are implied even though they are not explicitly authorized. The same can be said of the very concept of judicial review, which was not explicitly granted to courts in the Constitution but was established in the landmark case, Marbury v. Madison (1803).
Nevertheless, the partial stay does not permit Trump and his cronies to run roughshod over the Constitution. I think it’s likely that the question of birthright citizenship will come back before the Supreme Court. The big question is what route it will take to get there. New lawsuits are already being filed that take the Supreme Court’s decision into account.
Among the possibilities of alternative strategies to fight the Executive Order are to flood courts in every district with individual lawsuits by aggrieved Americans whose citizenship is at risk or to certify a class of first-generation citizens born to unlawful immigrants. The majority opinion seems to specifically endorse class-action lawsuits over nationwide injunctions.
The language of the 14th Amendment is crystal clear: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” The fact that illegal immigrants can be prosecuted is proof that they are subject to the jurisdiction of the United States.
If the Supreme Court follows the law as written and the precedent established in United States v. Wong Kim Ark (1897), Trump’s Executive Order will eventually be struck down. The risk is that we have a patchwork of immigration rulings in the meantime, in which some states honor birthright citizenship while some states with MAGA judges deny this fundamental right.
While MAGA may cheer the idea of overturning birthright citizenship with an Executive Order, they should bear two sobering thoughts in mind. First, what can be done by Executive Order can be undone by Executive Order. The on-again/off-again status of millions of American citizens would cause all manner of chaos.
Second, establishing a precedent of eviscerating a constitutional right by Executive decree is not a road that anyone should want to go down, but gun owners should be more hesitant than most. It’s easy to imagine a future president implementing an Order stating, the Second Amendment “has never been interpreted to extend [gun ownership] universally to everyone born within the United States.”
A common theme among MAGA policies is that they seem to make the assumption that Democrats will never hold power again. Whether this is a sinister calculation or simply a failure of imagination, it is almost certainly wrong, and the precedents being set by the Trump Administration will be used to the opposite extreme by some future president. Be careful what you wish for, because the expansion of government power can be a monkey’s paw of unintended consequences.
I disagree with the timing of the Court’s CASA ruling more than the content. It seems to me that it would have been better to delay the day of reckoning for nationwide injunctions until there is a case that is a less flagrant example of unconstitutional abuse of power. While I have problems with nationwide injunctions, it is difficult to imagine a case in which a nationwide injunction is more justified.
There have been abuses of judicial power, but the best time to fight these abuses is not when we have a power-hungry executive running amok. Nationwide injunctions have been around for decades. There was nothing imperative about ending them (or at least restricting them) in June 2025. It would not have been the first time that the Court delayed making substantive changes for political reasons. Experimenting with major changes to the legal framework of the Republic is dangerous in this time of national crisis.
I do think the Supreme Court is still an independent body. The Court has ruled against Trump a great many times, but it is also true that the same Court has rendered some spectacularly bad decisions that give Trump (and any other future president) way too much deference and authority. (Trump v. United States, the presidential immunity decision, I’m looking in your direction.)
In the South, there’s a saying that even a blind squirrel can find a nut occasionally. It’s also true that the Trump Administration is going to be on the right side of the law at times. That’s especially true when the question is narrowly tailored, and that’s why Trump won here.
The Supreme Court did follow the law, and in this narrow situation, the law did favor the Trump Administration. If they pursue the larger question of birthright citizenship, I’m confident that MAGA will find that Trump’s appointees to the Court are not rubber stamps. I’m not, however, as confident as I’d like to be.
THE WORST OF BOTH WORLDS IN IRAN: In the days since the US strike on Iran’s nuclear weapons program, there have been indications that the result was less than “obliteration.” Both a preliminary assessment by the US and an Iranian assessment intercepted by US intelligence found that damage was less than originally claimed and that the nuclear weapons program was only set back by a matter of months. The obvious course would be to conduct follow-up strikes, but Trump was so quick to claim victory and push a ceasefire that follow-up attacks are now politically difficult.
As a result, we may have the worst of both worlds. Iran continues to have a viable nuclear weapons program, and now they have a blood feud against the US as well, after we have directly struck their homeland. As the program is rebuilt and dispersed, it will likely become harder to kill in the future.
History shows that the partial destruction of the Iraqi nuclear program in the 1980s and the Stuxnet attack on Iran merely shifted weapons production to a higher priority. It seems likely that the recent incomplete US and Israeli strikes will have the same result.
And no, this is not Nobel Prize-worthy diplomacy.
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Great point about EO’s reversing constitutional rights, and what that might mean for 2a. I doubt MAGA types have thought that far (or at all).
What goes around comes around. Just as Mitch McConnell was prescient telling Harry Reid that he would “regret his choices and sooner than he thinks”, it’s not hard to imagine the same scenario with some future issuer of EO’s. And it again highlights the stupidity of governing by EO’s.
I see no logic in your argument that non-citizens are subject to the jurisdiction of the USA because illegals can be prosecuted. Foreigners who have never set foot in the USA can be prosecuted. That does not mean the entire planet is subject to this country's jurisdiction.
It is also illogical to believe the constitutional clause cited in the 1897 precedent was intended to grant birthright citizenship to the offspring of illegals and tourists. It was intended to apply to former slaves and their descendants.
I do agree that Trump cannot overturn a Supreme Court precedent by executive order. He should lose that case. I would like to see the clause in question reach the Supreme Court once again to be either reaffirmed or reversed (my preference).