When the Supreme Court issued its decision last month in Trump v. CASA, the majority didn’t address the legality of President Donald Trump’s bid to upend the Constitution’s birthright citizenship protections by executive order. Prior to the CASA ruling, lower court judges around the country had an easy time deeming Trump’s move unlawful. But the high court only issued a procedural ruling that limited nationwide injunctions — which judges had issued against Trump’s order — without addressing the underlying merits. That is, without saying whether Trump’s order on birthright citizenship is itself legal or illegal.
That ruling on injunctions has important implications for all sorts of litigation going forward in all sorts of cases. But when it comes to birthright citizenship specifically, the Supreme Court’s handling of the appeal left open questions about how the justices will permit challenges against Trump’s order to move forward and when the justices might finally address the underlying merits. Trump’s order has remained blocked (and may stay blocked), but unless and until the Supreme Court says once and for all that it is unlawful, uncertainty will linger.
At first glance, the matter might appear to have moved closer to a resolution Wednesday when a federal appeals court panel declared Trump’s order “invalid” on the grounds that it “contradicts the plain language of the Fourteenth Amendment’s grant of citizenship to ‘all persons born in the United States and subject to the jurisdiction thereof.’” The Trump administration would seemingly want to appeal to the Supreme Court to avenge its latest lower court loss, which it has done successfully in other areas.
But the ruling from the U.S. Court of Appeals for the 9th Circuit won’t necessarily lead to a Supreme Court resolution on the merits of birthright citizenship — or at least not necessarily soon.
Recall that the administration’s litigation strategy on birthright citizenship has apparently been to avoid asking the justices to decide the issue on the merits. During the CASA litigation, the government urged the justices to rule only on the nationwide injunction issue. This strategy seemed, at least implicitly, to concede that the government has a weak merits argument — otherwise, why not press the issue while the case was in front of the justices and get a complete win in one fell swoop?
However one wants to describe the administration’s strategy, the reality is that the government is likely still looking for ways to avoid a merits resolution at the high court.
A partial dissent to the 9th Circuit panel ruling — which had two Clinton appointees in the majority — could show such a path. The dissent was authored by Judge Patrick Bumatay, whom Trump appointed to the bench during his first term and who has been floated as a possible Trump Supreme Court pick.
Like the Supreme Court majority, Bumatay didn’t see it fit to address the merits one way or the other. Rather, like the Supreme Court majority, he focused on a more procedural (but important) issue, known as standing, which gives people or groups the right to sue. Bumatay said the plaintiff states that brought the suit don’t have standing and that therefore the court doesn’t have jurisdiction to decide the merits.
The reason I highlight Bumatay’s dissent is that it could give us a sense of where the Supreme Court is headed, or at least where the Trump administration might want the high court to go — or, perhaps more accurately, not go. That is, in another round of high court litigation, the administration could try again to limit its appeal to an issue that doesn’t require addressing the merits. Birthright citizenship litigation is pending in multiple cases around the country, so in what form it next reaches the justices is not yet clear. Another possible issue is the propriety of class actions against Trump’s order, which a federal judge in New Hampshire approved following the Supreme Court’s CASA ruling. That’s another issue the justices could theoretically address without deciding the merits of Trump’s order. But Bumatay’s dissent shows how judges or justices may continue to rule on the subject in ways that benefit Trump without taking his order head-on, all without resolving the uncertainty about how this litigation will end. 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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