Birthright citizenship suffered a setback on Friday, but the judiciary was dealt an even heavier blow.
Giving President Donald Trump a huge victory in his ongoing quest to amass executive power, the Supreme Court decided, 6-3, that federal district courts lack the power to issue nationwide injunctions. The justices remanded to lower courts the cases that had challenged Trump’s birthright citizenship executive order, but said that those courts’ decisions will apply only to the plaintiffs in each specific cases.
Since the case of Marbury v. Madison, courts have had the power to say what the law is. Today, the Supreme Court has shrunk from this role at the risk of enabling what Justice Ketanji Brown Jackson calls a “zone of lawlessness, within which the Executive has the prerogative to take or leave the law as it wishes, and where individuals who would otherwise be entitled to the law’s protection become subject to the Executive’s whims instead.”
Since the case of Marbury v. Madison, courts have had the power to say what the law is.
On the first day of his second term in office, President Donald Trump issued an executive order redefining citizenship to exclude children born in the United States to parents who lack legal immigration status. This is contrary to legal scholars’ traditional understanding of the 14th Amendment and breaks over a century of precedent. In response, individual plaintiffs, advocacy groups and several states quickly filed lawsuits in Maryland, Washington and Massachusetts. Federal courts found the plaintiffs were likely to succeed on the merits of their claims and enjoined the administration from executing the executive order. These injunctions applied broadly to anyone whose citizenship was affected, on the ground that without relief, they would all suffer irreparable harm. Appeals courts affirmed the lower courts.
The Trump administration sought immediate relief from the Supreme Court, requesting a stay of the injunctions. The question before the court was procedural: Trump’s solicitor general had argued that the injunctions should be limited to the individual parties who brought the suits rather than applied to anyone in the United States to whom the new definition applied. In other words, Trump’s White House was using this case to fight an adjacent battle against the use of injunctions more broadly, with big implications beyond citizenship.
Nationwide or “universal” injunctions permit lone judges in single districts to block presidential initiatives from taking effect, and they have been criticized by members of both political parties. During Trump’s first term, when a district court in Hawaii blocked his travel ban targeting mostly Muslim countries, Attorney General Jeff Sessions said, “I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power.”
During the Biden administration, a nationwide injunction overruling the Food and Drug Administration’s approval of the abortion medication mifepristone drew similar criticism. Even a federal judge in Kansas who issued a nationwide injunction to halt Biden’s student loan forgiveness program expressed his reluctance to do so, writing, “Nationwide injunctions are the subject of much controversy, and this court is less than enthusiastic about entering one.”
One of the problems with nationwide injunctions is that the plaintiffs in such cases sometimes engage in “forum shopping,” or filing lawsuits in districts where they are likely to draw judges sympathetic to their causes. For example, the lawsuit in the mifepristone case was filed in Amarillo, Texas, a judicial division where the sole judge was a well-known opponent of abortion.
But without nationwide application, injunctions would block federal policies in some parts of the country and not others, leading to a chaotic, difficult-to-administer hodgepodge of federal law. Changes to the procedures for issuing nationwide injunctions may be preferable as a policy decision, but the court rejected the Trump administration’s argument as a legal matter.
And in this case, the procedural question is inextricably intertwined with the substantive issue. The Citizenship Clause of the 14th Amendment provides that “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 January executive order defines “subject to the jurisdiction thereof” to exclude children born to undocumented parents, despite Supreme Court precedent to the contrary. In 1898, the Supreme Court stated in the case of United States v. Wong Kim Ark that the 14th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children born here of resident aliens.” To date, every court to address the issue has ruled against the Trump administration’s definition.
To date, every court to address the issue has ruled against the Trump administration’s definition. During oral argument, justices from both sides of the political spectrum questioned the practicality of the administration’s position, which would lead to a patchwork of different laws applying different parts of the country, but today, the court’s conservative majority went big for Trump, eroding the power of the judiciary to serve as a check on the exercise of executive power. As Jackson noted in her dissent, our country will now consist of zone one, where individuals born in the country are granted birthright citizenship, and zone two, where they are non-citizens subject to deportation — at least until the court settles the constitutionality of Trump’s order. Justice Elena Kagan had pressed the solicitor general about what would happen to all the babies born while legal challenges are pending. Without a universal injunction, she noted, an “untold number of people” currently entitled to U.S. citizenship would be without lawful status to remain in the country. Justice Sonia Sotomayor went so far as to call these newborns “stateless.” As Jackson had noted, the absence of a nationwide injunction would require every individual affected by the executive order to file their own lawsuit, turning the government’s immigration enforcement into a “catch-me-if-you-can kind of regime.” Even the conservative justices had seemed skeptical. Justice Brett Kavanaugh noted the uncertainty that would befall hospitals and states in the interim. Justices Neil Gorsuch and Amy Coney Barrett, too, expressed doubts. But today, Coney Barrett wrote the opinion that will give Trump the green light to issue more executive orders with aggressive arguments to extend his powers. Several ideas had previously been put forward to limit the use of nationwide injunctions, such as requiring a three-judge panel in cases in which a plaintiff seeks a nationwide injunction, raising the burden of proof or requiring cases challenging the legality of a president’s executive order with nationwide application to be filed in the District of Columbia to preclude forum shopping. Now that nationwide injunctions have been killed, Congress could step in to resuscitate them, but it seems doubtful that the current GOP-controlled legislature has the appetite to check the president’s power. For now, the substantive issue of birthright citizenship remains on hold while the cases challenging Trump’s executive order work their way through the legal system until they too inevitably land at the Supreme Court. But until then, babies born in the United States are at risk of the fate Sotomayor feared — statelessness.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
