The Supreme Court sided with the Trump administration in curbing nationwide injunctions granted against his birthright citizenship order, in a 6-3 ruling with the court’s Republican appointees in the majority and the Democratic appointees dissenting.

“These injunctions — known as ‘universal injunctions’ — likely exceed the equitable authority that Congress has granted to federal courts,” Justice Amy Coney Barrett wrote in a decision that didn’t decide the underlying legality of President Donald Trump’s attempt to restrict birthright citizenship. Litigation will continue on the issue in the lower courts and people can still bring additional challenges against the order, which Barrett said will take effect in 30 days.

The court also left open the possibility of plaintiffs bringing class action lawsuits, but whether any such actions would succeed remains to be seen.

On that note, Justice Samuel Alito wrote a separate concurring opinion, joined by Justice Clarence Thomas, in which he stressed the need for courts to police strict requirements for class actions and for granting any relief to third parties, like states, seeking to benefit from injunctions. “Lax enforcement of the requirements for third-party standing and class certification would create a potentially significant loophole to today’s decision,” he wrote, instructing the federal courts to “be vigilant against such potential abuses of these tools.”

The Democratic appointees were concerned with different abuses.

In her dissent for the court’s three Democratic appointees, Justice Sonia Sotomayor called out the court’s rewarding of the administration’s “gamesmanship.”

She noted that the administration didn’t ask the justices to fully block the lower court rulings against Trump’s policy. “Why? The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice,” Sotomayor wrote.

“So the Government instead tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone. Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit,” she continued, adding that the “gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along.”

In her own separate dissent, Justice Ketanji Brown Jackson said the court’s “decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.”

The administration appealed to the justices after several lower court judges blocked Trump’s executive order attempting to restrict birthright citizenship. Those judges did not consider the legality of Trump’s order to be a close question; “blatantly unconstitutional” was what one of them called it.  

But the administration didn’t ask the justices to affirm the legality of Trump’s order. Rather, it asked them to curb the nationwide relief granted by those lower court judges, insisting that the judges should’ve stuck to granting relief to the parties who brought the lawsuits in Washington state, Maryland and Massachusetts. In that respect, this appeal wasn’t about the legality of birthright citizenship but about the general propriety of nationwide injunctions, an issue that has long bothered justices in all manner of cases having nothing to do with birthright citizenship.

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Yet several justices raised the merits of the birthright citizenship issue during the rare May 15 hearing, quizzing Trump’s solicitor general, John Sauer, about when and how the court can get to the heart of the matter. Justice Elena Kagan pressed Sauer about his plea for the justices to let litigation over Trump’s order “percolate” in the lower courts; she told him it could take years to reach the justices under his approach, all while “an untold number of people who, according to all the law that this Court has ever made, ought to be citizens who are not being treated as such.”

The 14th Amendment’s citizenship clause says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

Trump’s order cites the “subject to the jurisdiction thereof” language in an attempt to deny automatic citizenship to babies born in these two circumstances:

(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.

But “subject to the jurisdiction thereof” has long been understood to apply in narrow circumstances not at issue in this case. As a brief to the justices from constitutional and immigration law scholars explained, the jurisdictional requirement “exempted a narrow category of persons who, despite being born on U.S. soil, were not required to fully obey U.S. law. These included the children of foreign diplomats and hostile occupying forces, as well as the members of Indian tribes, who were viewed as members of distinct political communities.”

The scholars cited the 1898 Supreme Court case of Wong Kim Ark for the proposition that “[a]ll other noncitizens were subject to the jurisdiction of the United States while they were in the country.” That’s one of the cases Sotomayor mentioned at the May hearing, when she told Sauer that Trump’s order violates “not just one but, by my count, four established Supreme Court precedents.”

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