Supreme Court gives attention to nationwide injunctions; judges slap down birthright changes

Supreme Court justices across the ideological spectrum have long complained about the expanding power of lower court judges to intervene and halt a president’s policies nationwide.

On Thursday, the high court will have a chance to do something about it.

The Supreme Court will hear oral arguments on President Trump’s request that the justices rein in a district court ruling blocking his changes to birthright citizenship.

Judges have increasingly used universal or nationwide injunctions against presidents, though Mr. Trump has shattered the record with more than a dozen in his second term.

“Universal injunctions have reached epidemic proportions,” Solicitor General D. John Sauer wrote in a petition asking the court to hear the case.

Most Supreme Court members have signaled that they also see a problem, though some have said that unwinding the issue would be complicated.

Most of the attention at the high court Thursday will be on the birthright citizenship question.

Mr. Trump declared in an executive order in January that the government would no longer automatically recognize the citizenship of children born to illegal immigrants or temporary visitors. He said the children fall outside the 14th Amendment’s citizenship guarantee, which extends to those “subject to the jurisdiction” of the U.S. government.

Opponents said the president misread the Constitution and that a redefinition would require an act of Congress.

Four lower courts have sided with the opponents and issued varying degrees of universal injunctions on Mr. Trump’s policy. Three appeals courts have ruled and allowed universal injunctions to stand.

Using a case out of Seattle, Mr. Sauer has asked the Supreme Court to step in and limit the ruling to the parties that sued — in that case, the states of Washington, Arizona, Illinois and Oregon.

Josh Blackman, a professor at South Texas College of Law, said he thinks the justices will examine the citizenship issue and avoid the problem of nationwide injunctions from lower courts.

“I think the court will actually decide the merit issue and skip the nationwide injunctions issue,” Mr. Blackman said. The justices “won’t touch it.”

However, Carrie Severino, president of JCN (formerly the Judicial Crisis Network), said the justices must referee the universal injunction issue.

“You now have a clear majority of the court — in fact, maybe a supermajority of the court — that has weighed in critically [on] nationwide injunctions,” Ms. Severino said.

Justices Neil M. Gorsuch and Clarence Thomas have complained about universal injunctions in past opinions.

“The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them,” Justice Gorsuch wrote in a 2020 concurrence, agreeing with the court’s move to halt a lower court’s nationwide injunction against one of Mr. Trump’s immigration policies during his first term.

“Whether framed as injunctions of ‘nationwide,’ ‘universal’ or ‘cosmic’ scope, these orders share the same basic flaw — they direct how the defendant must act toward persons who are not parties to the case.”

That dispute dealt with the definition of “public charge” in immigration law. Justice Thomas signed onto Justice Gorsuch’s concurrence.

Justices Amy Coney Barrett and Samuel A. Alito Jr. have also signed onto Justice Gorsuch’s opinions.

In a 2022 speech at Northwestern University, Justice Elena Kagan warned of the danger of lower judges wielding too much power.

“It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process,” Justice Kagan said.

Other justices have said the issue needs attention but are circumspect about how they expect it to shake out.

In a 2023 opinion, Justice Brett M. Kavanaugh said no law allows a district court judge to issue injunctions beyond the parties involved and that the high court may need to set standards. Justice Barrett signed onto that opinion.

In a 2024 opinion, Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, said settling the matter would be tough.

“Simply put, the questions raised by ‘universal injunctions’ are contested and difficult,” Justice Jackson wrote in a dissent from a decision limiting a lower court’s universal injunction.

Mr. Trump has demanded action from the justices.

“Stop nationwide injunctions now, before it is too late,” he posted on Truth Social in March. “If Justice Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation immediately, our country is in very serious trouble!”

Adam Feldman, a Supreme Court scholar and creator of the Empirical SCOTUS blog, said the legal issue may be whether the courts can resolve it or whether Congress must intervene.

“Ultimately the problem seems less about aversion to this process and more about how to curtail or reform it (and who is authorized and responsible to do that),” Mr. Feldman said in an email to The Washington Times.

Some legal analysts said the high court may try to compartmentalize universal injunctions, finding them right in some cases but not all.

Immigration advocacy groups said the birthright citizenship case is an example. Allowing immigration and citizenship rules to vary based on lower court rulings could sow chaos.

“Whether a child is a citizen of our nation should not depend on the state where she is born or the associations her parents have joined,” CASA, an immigration advocacy organization that brought one of the challenges to Mr. Trump’s birthright citizenship policy, told the high court.

The cases are Trump v. CASA, Trump v. Washington and Trump v. New Jersey. They have been consolidated.

A ruling is expected by the end of June.