Trump's birthright citizenship order strains Supreme Court

The Supreme Court grappled Thursday with the growing power of district judges to shut down government action, with the justices acknowledging “abuses” but struggling to figure out a clean way to rein in those 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 they think Mr. Trump went too far, but mostly they focused on the growing conflicts between presidents and judges.

At stake are what’s known as nationwide or universal injunctions, where a single district judge can take a case brought by a single plaintiff and halt a congressional law or a president’s actions throughout the whole nation.

At least three courts did just that for Mr. Trump’s birthright citizenship order.

Solicitor General D. John Sauer, arguing for the president, said under the Constitution’s Article III, which sets up the federal courts, district judges’ rulings should be restricted only on the plaintiffs in front of them.

“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 was sympathetic, saying she recognizes a problem with lower courts increasingly flexing powers to shut down a president’s agenda.

But she worried about taking the judges off the field altogether, particularly in cases like 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 prodded Mr. Sauer.

Justice Ketanji Brown Jackson said if the government gets its way, it would trigger a flood of lawsuits as anyone who wants protection would have to get a lawyer and sue on his or her own.

“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,” she said.

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

Most legal scholars who have looked at the issue say that 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, most scholars agree, it would take an act of Congress to redefine the policy, not a presidential order.

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

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

“The practical problem is there are 680 district court judges,” said Justice Samuel A. Alito Jr. “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 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.

Over the past two decades, though, they’ve flooded the federal courts, Mr. Sauer said.

He said Mr. Trump faced 64 injunctions in his first term, President Biden saw 22 against his policies, and Mr. Trump has already seen 40 in less than four months of his second term.

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

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

Jeremy Feigenbaum, the lawyer for New Jersey, one of the plaintiffs who challenged the president, said having different rules for citizenship 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 pointed out that if there were different rules, states might have to figure out status of birth for any child being signed up for Medicaid.

Even Mr. Sauer struggled to explain how it 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.

“They’re only going to have 30 days; you think they’re going to get it together in that time?” he wondered.

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