“Blatantly unconstitutional.” That’s what U.S. District Judge John Coughenour called President Donald Trump’s attempt to restrict birthright citizenship earlier this year.
“I’ve been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one,” the Reagan appointee said in blocking Trump’s executive order. Other judges around the country followed suit.
And yet, the Supreme Court granted a rare hearing on the subject for Thursday.
But the court isn’t taking Trump’s order head-on. The administration didn’t ask it to.
Rather, while litigation against the order proceeds in the lower courts, the federal government filed emergency applications to the justices, asking them to narrow the scope of nationwide injunctions blocking Trump’s order in three cases. Instead of deciding, as it usually does, whether to grant emergency relief based on the court papers alone, the court set Thursday’s hearing for after the term’s normally scheduled arguments wrapped up last month.
The government’s main complaint in this appeal, which combines all three cases, isn’t that Trump’s order is actually legal — though it will argue that, too, if pressed — but that Coughenour in Washington state and his judicial colleagues in Maryland and Massachusetts overstepped in granting nationwide relief.
The bid therefore doesn’t fully hinge on the underlying legality of Trump’s order — which makes sense from the administration’s strategic perspective, given the whole “blatantly unconstitutional” thing. Indeed, while noting that the cases “raise important constitutional questions,” the government cast its request as a “modest” one: for the justices to limit the injunctions to the parties who brought the lawsuits.
Thus, rather than crouching in a defensive posture and justifying its illegal order outright, the administration went on offense, casting itself as the victim of wayward judges unduly encroaching on executive prerogatives. That’s been a theme for the administration across all sorts of cases in Trump’s second term.
That lays the groundwork for the court to side with the government without explicitly blessing Trump’s order, while simultaneously letting him enforce it (or try to enforce it) against people who aren’t party to these suits, which were brought by states, immigrants’ rights groups and pregnant women. So even though the government’s application isn’t about birthright citizenship per se, the potential chaos looming behind the “modest” request — and the court’s willingness to entertain it — can’t be ignored.
“Permitting the Executive Order to go into effect would cause chaos across the country for expecting parents, no matter their immigration status,” argued a brief from the immigrants’ rights groups and pregnant women. They said that a birth certificate, long considered adequate proof of citizenship, would no longer suffice if Trump’s order takes effect.
“The Court should not exercise its equitable powers to reach such an inequitable result, especially when the government does not claim in its application that the policy it seeks to enforce complies with the Constitution,” they urged the justices. They said that if the order takes effect only in some places and only applies to some people, then “U.S.-born children will be denied their constitutionally guaranteed United States citizenship based on whether their parents or their state is involved in this or another lawsuit.” Contrary to the long-held understanding and practice of automatic citizenship for people born in the U.S., Trump’s order said citizenship wouldn’t automatically extend to certain children born to noncitizen parents. Specifically, the order would apply: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary . . . and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
Nationwide injunctions have long drawn complaints from justices in cases having nothing to do with birthright citizenship. The high court could use this case to give new guidance to lower courts about when it’s appropriate to grant universal relief. Such guidance could have implications for Trump’s second term in all manner of cases, where judges have found all manner of illegalities in his executive actions. It could also have implications going forward in future administrations.But there was no need for the justices to take up the injunction issue in this context, involving a matter long believed to be settled. Of course, if a majority of the Supreme Court thinks Trump’s underlying order is lawful, then that’s a bigger problem. But if the court doesn’t think so and is interested purely in the injunction issue, then it could’ve picked a different context in which to analyze it, as opposed to this issue in which there are good reasons for nationwide uniformity. The mere consideration of birthright citizenship in this context raises needless anxiety for those potentially affected. The hearing should illuminate what the justices are thinking, and perhaps different justices are interested in different aspects of the appeal. But we should have a ruling relatively soon. The court typically decides the term’s cases by July or shortly into July. This rare May hearing, shoehorned into the term, suggests the justices intend to rule by that typical July time frame, if not sooner. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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