WASHINGTON − Judges across the country have blocked some of President Donald Trump’s major policy changes, which the president has described as “toxic and unprecedented.”
Trump is counting on the Supreme Court to correct this.
How inclined the justices are to do so may be revealed on May 15, when the court considers Trump’s move to end automatic citizenship for children born in the United States regardless of whether their parents are citizens or permanent residents.
The president has not asked the Supreme Court to consider the legality of his policy, which was deemed “blatantly unconstitutional” by the first judge to review it.
Instead, Trump wants the justices to narrow the scope of several court orders, putting his new rules on hold until the citizenship policy is fully litigated.
The administration contends that, for the time being, Trump should be able to impose the change on everyone except the eighteen parents named in the lawsuits, as well as any member of two immigrant rights organizations or residents of a state that challenged the policy.
The administration contends that unless court orders are narrowly tailored to only cover the actual litigants, judges will have far too much power to stall critical presidential actions.
“Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere,” lawyers for the Justice Department told the Supreme Court in a brief.
Challengers call Trump’s position absurd
Those opposing the policy argue that if any case justified a nationwide pause, it was this one.
The citizenship of the more than 150,000 babies born each year who may be affected by Trump’s executive order should not be determined based on which state they were born in and whether that state joined the lawsuits, according to New Jersey Attorney General Matt Platkin, one of the attorneys general who has taken the lead on the matter.
“I’m confident the court will understand the absurdity of saying a child born in Pennsylvania or New Hampshire or Mississippi is somehow treated differently under the text of the 14th Amendment than a child born in New Jersey,” according to Platkin. “That’s not what the Constitution says.”
Obama, Biden also faced national injunctions
Court orders that go beyond granting relief to those opposing a program or policy were uncommon until recently, when they began to plague both Democratic and Republican presidents.
According to legal scholars, the patten began in 2015, when Texas sued the Obama administration to prevent the expansion of a program that protects young immigrants from deportation if they were brought to the United States illegally as children.
According to a 2024 Harvard Law Review article, President Barack Obama faced a dozen nationwide injunctions during his presidency.
During his first three years, President Joe Biden dealt with 14 issues, including a Texas judge’s order blocking his requirement that federal employees be vaccinated for COVID-19.
During his first term, Trump faced 64 injunctions. And judges have been issuing injunctions at a rate that will likely exceed that as the courts deal with the more than 200 lawsuits filed against the administration.
In March, Trump used social media to demand that the Supreme Court intervene.
“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!” Trump stated this in a post on Truth Social.
Courts are reacting to unusual situation
While there are legitimate criticisms of one judge’s ability to halt the universal application of a policy, the situation that courts are currently dealing with is unusual, according to Alan Trammell, a leading authority on universal injunctions who teaches at Washington and Lee University School of Law.
At a recent Federalist Society conference, Trammell stated that it is unusual for the president to attempt to rewrite the Constitution’s citizenship clause and “upend jurisprudence that has existed for more than a century.”
“That’s the context in which we are talking about all this,” he told me.
But Samuel Bray, an expert on injunctions who teaches at Notre Dame Law School, argues that because Trump’s executive order is “flagrantly illegal,” the justices will not be distracted by the underlying constitutional debate.
“And that means this case is one that will allow the court to decide the scope of injunctions that can be given by federal courts,” according to him. “It lets the Supreme Court clearly tackle this question about the proper role of courts.”
Some justices criticize national injunctions
Some Supreme Court justices, particularly Justice Neil Gorsuch, one of the court’s six conservatives, have expressed opposition to universal injunctions.
Gorsuch called them “unworkable” five years ago, and he believes his colleagues must address them now.
“The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them,” he wrote in 2020, after the court denied an injunction against a Trump-era immigration policy.
In 2022, Justice Elena Kagan, one of the court’s three liberal justices, spoke out against broad injunctions and challengers’ ability to find a favorable judge to issue such an order.
“In the Trump years, people used to go to the Northern District of California, and in the Biden years, they go to Texas,” she told me. “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.”
But despite the concern, the justices declined at the end of the Biden administration to take up the Justice Department’s request to address the issue after a Texas judge blocked an anti-money laundering law.
The lower courts “need guidance on the propriety of universal injunctions,” Elizabeth Prelogar, Biden’s solicitor general, told the justices.
How might the Supreme Court rule?
The fact that the Supreme Court chose this case to discuss universal injunctions may indicate that a majority wants to reaffirm their use, according to Ilya Somin, a law professor at George Mason University.
“I would have thought that the faction that wants to end universal injunctions would have preferred a less sympathetic case to do that in,” according to him.
The whole point of having a naturalization clause in the Constitution is to establish a uniform citizenship rule for the entire country, he explained.
“If they were to reject universal injunctions in this case,” said Mr. Cohen, “it would be hard to do it in a way that wouldn’t also reject it in most, if not all, other cases.”
However, Bray, a scholar at Notre Dame University, believes the court will find a way to limit or eliminate universal injunctions while indicating that birthright citizenship is settled law.
While those opposing the change may have to take a different approach, such as filing a class action lawsuit, Bray believes this can be done quickly enough to avoid different rules applying in different parts of the country.
“I don’t think you’re going to have a patchwork for very long at all,” said the judge, “because the legal question on the merits is so clear.”
