Trump’s birthright citizenship order strains Supreme Court

The Supreme Court on Thursday acknowledged the “abuses” of district judges shutting down government action but struggled to find a clean way to rein in local courts.

The case arose out of President Trump’s executive order trying to limit birthright citizenship for children born to illegal immigrants and foreign temporary visitors.

Some justices made clear that they thought Mr. Trump went too far but focused primarily on the growing conflicts between presidents and judges.

At stake are nationwide or universal injunctions, by which a single district judge can take a case brought by a single plaintiff and halt a congressional law or a president’s actions nationwide.

At least three courts did that in response to Mr. Trump’s birthright citizenship order.

Solicitor General D. John Sauer said district judges’ rulings should be restricted to the plaintiffs in front of them under the Constitution’s Article III, which establishes the federal courts.

“It is a feature, not a bug, of Article III that the courts grant relief to the people that are in front of them,” he said.

Justice Elena Kagan, an Obama appointee, said she recognized a problem with lower courts using their power to block a president’s agenda, but she worried about taking the judges off the field altogether, particularly in cases such as birthright citizenship, where fundamental rights are at stake.

“There are all kinds of abuses of nationwide injunctions, but I think that the question that this case presents is that if one thinks it’s quite clear that the executive order is illegal, how does one get to that result and what time frame, on your set of rules, without the possibility of a nationwide injunction?” she asked Mr. Sauer.

Justice Ketanji Brown Jackson, a Biden appointee, said the government’s actions would trigger a flood of lawsuits because anyone who wants protection could obtain an attorney and file independently.

“Your argument seems to turn our justice system into a catch-me-if-you-can kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights,” Justice Jackson said.

Mr. Trump’s executive order directed U.S. agencies not to recognize citizenship for children born to parents in the country illegally or on temporary visitor visas.

Legal scholars who have examined the issue generally say the policy violates the 14th Amendment of the Constitution, which guarantees automatic citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” At the very least, they say, it would take an act of Congress, not a presidential order, to redefine the policy.

Mr. Trump has lost in preliminary legal wranglings in every lower court. Three of those have been universal injunctions, and two have been sustained by circuit courts of appeal.

Some of the court’s Republican appointees were skeptical of those expansive rulings.

“The practical problem is there are 680 district court judges,” said Justice Samuel A. Alito Jr., an appointee of George W. Bush. “Sometimes they’re wrong, and all Article III judges are vulnerable to an occupational disease, which is the disease of thinking, ‘I am right.’”

Justice Clarence Thomas, a George H.W. Bush appointee, said the courts operated for nearly two centuries without needing to issue such broad rulings.

“We survived until the 1960s without universal injunctions,” he said.

However, over the past two decades, they have flooded the federal courts, Mr. Sauer said.

He noted 64 injunctions in Mr. Trump’s first term, 22 against President Biden’s policies and 40 in less than four months of Mr. Trump’s second term.

Mr. Sauer told the justices that eliminating universal injunctions would still leave plaintiffs with tools such as class-action lawsuits.

He said those can deliver wide-ranging rulings that reach even people who haven’t sued but require higher standards, such as proving that all members of the class share standard features. He said the rulings in class actions bind both parties, so those suing have more at stake in the outcome.

Critics said the procedure of gathering and certifying a class takes too much time when evaluating whether a policy infringes on Constitutional rights.

Trump opponents have said the lack of universal injunctions would mean that illegal or even unconstitutional presidential policies could remain on the books for months or even years while cases wind their way to the high court.

Chief Justice John G. Roberts Jr. challenged that notion, saying the Supreme Court has been able to act quickly. He pointed out that the court sped through the TikTok case in just a month.

“We’ve been able to move much more expeditiously,” said the chief justice, appointed by George W. Bush.

Several justices suggested that Mr. Trump’s birthright citizenship order was a bad case to argue against universal injunctions because the president was clearly wrong.

“As far as I see it, this order violates four Supreme Court precedents,” said Justice Sonia Sotomayor, an Obama appointee.

She compared it to a hypothetical presidential policy to confiscate every gun from every citizen. She said it would be unthinkable that a lower court wouldn’t have the power to issue a universal injunction or that every gun owner who wanted to keep a weapon would have to sue to preserve that right.

“We couldn’t stop them?” she asked Mr. Sauer.

She also chided Mr. Sauer’s class-action suggestion and the alternative. Lawsuits filed by thousands of individuals “makes no sense whatsoever,” she said.

Jeremy Feigenbaum, the solicitor general for New Jersey, one of the plaintiffs challenging the president, said having different citizenship rules makes no sense.

“We never in this country since the Civil War had your citizenship turned on when you cross state lines,” he said. “We genuinely don’t know how this could possibly work on the ground.”

He said different rules might require states to determine the birth status of any child being signed up for Medicaid.

He said siding with the federal government would “produce unprecedented chaos on the ground.”

Even Mr. Sauer struggled to explain how the process would work in practice.

“We don’t know, because the agencies were never given the opportunity to formulate the guidance,” he said.

That seemed to trouble Justice Brett M. Kavanaugh, a Trump appointee.

“They’re only going to have 30 days. You think they’re going to get it together in that time?” he asked. “On the day after it goes into effect — this is just a very practical question — how is it going to work? What do hospitals do with a newborn? What do states do with a newborn?”

The justices combined three cases for Thursday’s oral argument. They were Trump v. CASA, Trump v. Washington and Trump v. New Jersey.