Washington, DC – The United States Supreme Court has dealt a major blow to those challenging Donald Trump’s use of presidential power, in what the president and his allies have hailed as a major victory.
In its decision on Friday, the nine-member panel weighed whether courts could block an executive order on birthright citizenship.
The court did not rule directly on the president’s order, which would limit citizenship for US-born children based on their parents’ immigration status.
But in a six-to-three ruling, the court’s conservative supermajority did severely curtail the ability of judges to issue so-called universal injunctions: blanket bans on presidential actions stemming from legal challenges.
The court’s move, according to Allen Orr, the former president of the American Immigration Lawyers Association (AILA), is nothing short of “explosive”.
“For lawyers and people who practice law, this is a drastic change from the way we’ve had courts run in the past,” he told Al Jazeera. “It’s weakening the judiciary yet again, as a balancing act [against the executive branch].”
Friday’s ruling lifts the nationwide block on Trump’s executive order that seeks to redefine birthright citizenship, which generally allows those born on US soil to be recognised as American citizens.
However, Trump’s order, signed just hours after he took office for a second term on January 20, would restrict citizenship for individuals born to undocumented parents in the US.
That “opens the door to partial enforcement” of Trump’s order, according to the American Civil Liberties Union (ACLU), one of several groups that have challenged the attempted policy.
That is, at least until the Supreme Court makes a determination on whether birthright citizenship is indeed protected by the US Constitution, as proponents – and the court’s own precedents – have long maintained.
If no further action is taken, in theory, the order could be blocked in the handful of states where judges have already issued injunctions related to at least 10 individual lawsuits. But it could go into effect in dozens of other states where judges have issued no such injunction.
The Supreme Court’s ruling says Trump’s order will not be enforceable for at least 30 days.
But Leon Fresco – a former deputy assistant attorney general who oversaw immigration at the Justice Department under President Barack Obama – warned that, after that 30-day period, there could be grave consequences for the newborn children of immigrants.
“If there isn’t an injunction in your jurisdiction that prevents the executive order from being implemented and you’re born to a parent without a status that confers you citizenship, then the government could deny you either a passport, if you apply for a passport, or a Social Security number,” he told Al Jazeera.
Class action challenge
The decision on Friday does not completely remove the possibility of a judge issuing a nationwide injunction to an executive order. Legal experts say it just severely restricts the avenues.
Prior to the decision, groups and individuals could launch a panoply of legal challenges in federal courts across the country, any of which could result in nationwide injunctions.
Now, a judge can only issue a blanket pause in response to a class action lawsuit, which is a complaint brought on behalf of an entire “class” of people. The process is typically more complex, time-consuming and costly.
The Supreme Court’s majority opinion, Fresco explained, also clarified that only one nationwide class action lawsuit can represent a specific challenge.
“There wouldn’t be this ability, which happens now, where plaintiffs can file cases in five or six different courts, in hopes of getting one judge in any of those courts to issue a nationwide injunction,” he said.
“With the class action, you’ll only have the one time to win,” he added. “If you lost, you’d have to hope that the appellate court changed it, or that the Supreme Court changed it.”
Class action lawsuits also have stringent requirements for who can participate. A judge must agree that all plaintiffs are pursuing the same case and that there are no substantial differences in their claims.
Shortly after Friday’s ruling, the plaintiff, CASA Inc, an immigration advocacy group, swiftly refiled its legal challenge against Trump’s birthright citizenship order. Now, it is pursuing the case as a class action lawsuit.
Critics, meanwhile, took aim at the Supreme Court’s conservative supermajority. Even Justice Sonia Sotomayor, a liberal judge on the nine-member panel, criticised her colleagues for ruling on national injunctions but not on Trump’s executive order, which she called blatantly unconstitutional.
“The majority ignores entirely whether the President’s Executive Order is constitutional, instead focusing only on the question whether federal courts have the equitable authority to issue universal injunctions,” Sotomayor wrote.
“Yet the Order’s patent unlawfulness reveals the gravity of the majority’s error.”
Absent a class action lawsuit, individuals and groups will be forced to launch their own lawsuits to get individual reprieves from potentially illegal presidential orders.
That’s because the conservative supermajority ruled that court injunctions in most cases should only apply to the plaintiffs in the lawsuit at hand.
In a post on the social media platform X, Democratic Representative Debbie Wasserman Schultz wrote that the Supreme Court’s decision allows Trump to “rip away birthright citizenship, forcing individuals to file burdensome lawsuits to get it back”.
Wider implications
But Friday’s decision not only restricts who is protected by a given court injunction, it also has sway over how much the judicial branch of government can continue to serve as a bulwark against the executive branch.
Critics of universal injunctions have long accused federal judges of overstepping their authority by blocking presidential action.
Among those celebrating Friday’s decision was Senator Chuck Grassley, who has spearheaded legislation on the issue.
In a statement, he called such injunctions an “unconstitutional affront to our nation’s system of checks and balances” that “ought to be stopped for good”.
Proponents, however, say the ability for judges to issue swift, wide-reaching pauses on controversial policies is needed to safeguard against presidential overreach.
Many see Trump as taking the expansion of presidential powers to a new level during his second term.
Since returning to office for a second term, Trump has issued 164 executive orders, surpassing the 162 issued by former President Joe Biden during his entire presidency. That number – for a span of about five months – is rapidly approaching the total for Trump’s entire first term: 220.
Meanwhile, federal judges issued at least 25 national injunctions to Trump’s orders during his first 100 days in office, some of which paused cuts to federal funding, attacks on diversity initiatives and overhauls to the US immigration systems.
Some of those court cases will likely be re-challenged in light of the latest ruling, experts said.
In a post on X, Senator Chris Coons, a Democrat, warned the courts ruling “will only embolden Trump and his dismantling of our federal government”.
“It will create an unworkable patchwork of laws that shift depending on who you are or what state you’re in.”
Orr, the former law association president, agreed with that assessment.
“This decision does not build consistency across the United States at a time when people need these standards,” he said. “People do not have time or money to wait to have these issues resolved.”
