District Court Nationwide Injunctions On Trial at SCOTUS Birthright Citizenship Oral Argument

District Court Nationwide Injunctions On Trial at SCOTUS Birthright Citizenship Oral Argument

On May 15, 2025, the Supreme Court heard oral arguments in the Birthright Citizenship case. Except that birthright citizenship technically wasn’t before the Court, the issue was lower court national injunctions against Trump’s Executive Order instructing federal departments not to recognize birthright citizenship:

Sec. 2.  Policy.  (a)  It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons:  (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

(b)  Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order.

(c)  Nothing in this order shall be construed to affect the entitlement of other individuals, including children of lawful permanent residents, to obtain documentation of their United States citizenship.

Yet the substantive merits of birthright citizenship hung over the proceedings and reared its head particularly from Justice Sotomayor who acted as if it was a settled question (hint, it’s not really) and was so hot under the collar that at one point CJ Roberts had to admonish her to let the counsel answer questions:

[SOLICITOR] GENERAL SAUER: We are not claiming that because we’re conceding that there could be a –in an appropriate case, a Rule 23 class action.

JUSTICE SOTOMAYOR: Only a class — only by a class action.

CHIEF JUSTICE ROBERTS: Can I hear the — can I hear the rest of his answer? (Transcript at 12)

You can listen to the full audio here and read the transcipt here.

I discussed my take on the oral argument on the NTD Good Morning Show, with host Cary Dunst:

The Supreme Court on May 15 grappled with how far federal judges could go in issuing sweeping blocks on policies such as President Donald Trump’s order restricting birthright citizenship.

NTD spoke with William Jacobson, a professor at Cornell Law School, for analysis.

Transcript – Auto-generated, may contain transcription errors, lightly edited for trancript clarity)

Dunst (00:00):

And joining us now live to discuss the Supreme Court’s actions yesterday is William Jacobson, Cornell Law School Professor. Good morning William. Thank you for joining.

The case concerns the lower court’s ability to challenge the interpretation of the 14th Amendment, but as we saw in the package, it actually focuses more on the ability of a lower federal judge’s authority to impose this nationwide injunction on the President’s executive order. So can you break that issue down for us?

WAJ (00:24):

Well, strictly speaking, the issue before the court is the ability, the authority of lower court judges to issue nationwide injunctions, injunctions that affect people who are not before them, who are not parties in the litigation and are not in front of the court. That’s the specific issue.

But hanging over it is the bigger issue, the merits issue, which is what does the 14th Amendment birthright citizenship mean? What does subject to the jurisdiction of the United States mean? That’s really the big issue. And one of the tensions, and one of the issues that came out in the oral argument, is judges, particularly Sotomayor and so-called liberals saying, well, wait a second, this is all illegal, what Trump is doing. But that’s not really what’s before the court.

Dunst (01:11):

Yeah, it’s interesting you mentioned that. So did the Justices’ questioning follow their typical profiles as liberals and conservatives, or were there any surprises to you?

WAJ (01:21):

There weren’t any surprises. I mean, Sotomayer and Kagan and Jackson all were very hostile and all, particularly Sotomayor, opined on the ultimate merits, which is actually not before the court right now. The other justices like Kavanaugh, and obviously Thomas, you played that in your clip, were less inclined to jump right into the merits and were more concerned with what is a massive problem for the Supreme Court, which is that you have judges all over the country issuing injunctions.

And the problem for the Trump administration is they have to win every case because any judge can issue a national injunction, whereas the people challenging the administration only need to win once. They only need to find one judge who will issue a universal injunction, but the Trump administration has to win every case, and that’s essentially paralyzing to a large extent the executive branch. It’s much worse now than it was under the Biden administration because there’s a deliberate tactic from the Democrats organized, public, admitted to try to freeze the administration through lawsuits.

Dunst (02:36):

Yeah, it’s not really double jeopardy if you have to try the same case over and over again. It’s sort of infinite jeopardy. So I want to get your view on the notable Justice reactions. We played a couple of the soundbites for and against elevating the federal judge’s ability to stymie Trump’s authority.

WAJ (02:55):

Well, I think that Sotamayor really was in the lead at one point. I think the Chief Justice asked her to please allow the counsel to finish answering her questions. She was very hot on the bench, worrying about how is this all going to work. If this is illegal, isn’t it really uniform across the country? I mean, birthright citizenship is birthright citizenship. And I think it was either her or somebody else said, why shouldn’t we just take the, the merits of this right now? Not right now in terms of that moment in the courtroom, but why don’t we just get to the merits of this? And that was a lot of the tension.

It is a little bit curious why the administration chose to only bring the procedural issue before the Justices. And I think the reason is they must have viewed this as one where they have a likelihood of getting the issue of universal injunctions before the court in what they consider to be a favorable landscape. And what they really want is to stop hundreds of judges from essentially running the executive branch and stymieing their agenda. And they think the most important thing, more important than the merits of birthright citizenship to them is to stop the district courts from issuing these universal injunctions. Because as I mentioned, it puts the administration in the position they have to win every single case, they can’t afford to lose once, because losing once means you have a universal injunction against you.

Dunst (04:30):

So in attempt to almost kill two birds with one stone, while they’re interested in this 14th amendment case, they’re interested in neutralizing this tactic that’s being used through the legal system to oppose his agenda. Now, I want to explore, though, in this gray area until they actually rule on the 14th Amendment, this argument for the nationwide injunction in this particular sense of practicality applies, because if you are a birthright citizen in one state and then you go to another state where you know there is no injunction, you in theory then are not a citizen in that state. So there does seem to be some bit of a merit in that argument on the liberal Justices’ side. Is there not?

WAJ (05:15):

I think there is, and I think that’s the biggest problem for the government. The government chose to take this case up to the Supreme Court, but of all the cases, this might be the one where you need a uniform rule across the country. But the argument from the government’s lawyer was you don’t need a universal injunction to get that uniform rule. Once a higher court rules on this, once the Supreme Court rules on that, that’s now the law of the land and all the judges around the country are required to follow it. And so they’re saying that you don’t need universal injunctions. You don’t need every single district court judge in the country being able to issue these injunctions in order to get that uniformity. There are other ways. They also brought up the issue of a class action.

A class action is where you have too many parties to be present in the court. That certainly would apply here. And you have a uniform issue that applies to everybody more or less equally. So Justice Kavanaugh, and I think it might have been played in your clip, suggested that maybe class actions are the way to go. And the reason that’s a little more protective is to do a class action, you have to meet certain tests that, some of which I’ve just enumerated, that you can’t just have a judge say, I think this is wrong, therefore I’m gonna slap a temporary restraining order on the entire country, and then I’m gonna slap a preliminary injunction and maybe in a month or two or three, some other court will overrule me. But in the meantime, I’ve disrupted the administration. So that I think will be the breaking point.

The Justices know that this has created a situation where the Trump administration basically weekly, sometimes more than once a week, is having to run to the Supreme Court and say, look what this judge just did; this is a judge who doesn’t even have jurisdiction over the case, has just issued a nationwide injunction. And the Supreme Court doesn’t like that. While they’re happy to take cases, they they shouldn’t be functioning as the day-to-day cop on the beat for the district court judges.

And so I think there is a possibility, I think it will be a close call, this case will probably end up being five four in either direction. But the  Justices clearly understand there is a major problem with the district courts in the country right now.

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