nationwide injunction

WASHINGTON — The Trump administration is asking the Supreme Court to uphold President Trump’s birthright citizenship order declaring that children born to parents who are in the United States illegally or temporarily are not American citizens.

The appeal, shared with the Associated Press on Saturday, sets in motion a process at the high court that could lead to a definitive ruling from the justices on whether the citizenship restrictions are constitutional.

Lower-court judges have blocked them from taking effect anywhere. The Republican administration is not asking the court to let the restrictions take effect before it rules.

The Justice Department’s petition has been shared with lawyers for parties challenging the order, but is not yet docketed at the Supreme Court.

Any decision on whether to take up the case probably is months away and arguments probably would not take place until the late winter or early spring.

“The lower court’s decisions invalidated a policy of prime importance to the president and his administration in a manner that undermines our border security,” Solicitor Gen. D. John Sauer wrote. “Those decisions confer, without lawful justification, the privilege of American citizenship on hundreds of thousands of unqualified people.”

Cody Wofsy, an American Civil Liberties Union lawyer who represents children who would be affected by Trump’s restrictions, said the administration’s plan is plainly unconstitutional.

“This executive order is illegal, full stop, and no amount of maneuvering from the administration is going to change that. We will continue to ensure that no baby’s citizenship is ever stripped away by this cruel and senseless order,” Wofsy said in an email.

Trump signed an executive order on the first day of his second term in the White House that would upend more than 125 years of understanding that the Constitution’s 14th Amendment confers citizenship on everyone born on American soil, with narrow exceptions for the children of foreign diplomats and those born to a foreign occupying force.

In a series of decisions, lower courts have struck down the executive order as unconstitutional, or likely so, even after a Supreme Court ruling in late June that limited judges’ use of nationwide injunctions.

While the Supreme Court curbed the use of nationwide injunctions, it did not rule out other court orders that could have nationwide effects, including in class-action lawsuits and those brought by states. The justices did not decide at that time whether the underlying citizenship order is constitutional.

But every lower court that has looked at the issue has concluded that Trump’s order violates or probably violates the 14th Amendment, which was intended to ensure that Black people, including formerly enslaved people, had citizenship.

The administration is appealing two cases.

The U.S. Court of Appeals for the 9th Circuit in San Francisco ruled in July that a group of states that sued over the order needed a nationwide injunction to prevent the problems that would be caused by birthright citizenship being in effect in some states and not others.

Also in July, a federal judge in New Hampshire blocked the citizenship order in a class-action lawsuit including all children who would be affected.

Birthright citizenship automatically makes anyone born in the United States an American citizen, including children born to mothers who are in the country illegally, under long-standing rules. The right was enshrined soon after the Civil War in the first sentence of the 14th Amendment.

The administration has asserted that children of noncitizens are not “subject to the jurisdiction” of the United States and therefore not entitled to citizenship.

Sherman and Whitehurst write for the Associated Press.

WASHINGTON — The legal battle over President Trump’s move to end birthright citizenship is far from over despite his major Supreme Court victory Friday limiting nationwide injunctions.

Immigrant advocates are vowing to fight to ensure birthright citizenship remains the law as the Republican president tries to do away with a more than century-old constitutional precedent.

The high court’s ruling sends cases challenging the president’s birthright citizenship executive order back to the lower courts. But the ultimate fate of Trump’s policy remains uncertain.

Here’s what to know about birthright citizenship, the Supreme Court’s ruling and what happens next.

What does birthright citizenship mean?

Birthright citizenship makes anyone born in the United States an American citizen, including children born to mothers in the country illegally.

The practice goes back to soon after the Civil War, when Congress ratified the 14th Amendment of the Constitution, in part to ensure that Black people, including formerly enslaved Americans, had citizenship.

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States,” the amendment states.

Thirty years later, Wong Kim Ark, a man born in the U.S. to Chinese parents, was refused reentry into the U.S. after traveling overseas. His suit led to the Supreme Court explicitly ruling that the amendment gives citizenship to anyone born in the United States, no matter their parents’ legal status.

It has been seen since then as an intrinsic part of U.S. law, with only a few exceptions, such as for children born in the U.S. to foreign diplomats.

Trump’s longtime goal

Trump signed an executive order upon assuming office in January that seeks to deny citizenship to children born to parents who are living in the U.S. illegally or temporarily. The order is part of the president’s hard-line anti-immigration agenda, and he has called birthright citizenship a “magnet for illegal immigration.”

Trump and his supporters focus on one phrase in the amendment — “subject to the jurisdiction thereof” — which they contend means the U.S. can deny citizenship to babies born to women in the country illegally.

A series of federal judges have said that’s not true and issued nationwide injunctions stopping his order from taking effect.

“I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is. This is a blatantly unconstitutional order,” U.S. District Judge John Coughenour said at a hearing this year in his Seattle courtroom.

In Greenbelt, Md., a Washington suburb, U.S. District Judge Deborah Boardman wrote that “the Supreme Court has resoundingly rejected and no court in the country has ever endorsed” Trump’s interpretation of birthright citizenship.

Is Trump’s order constitutional?

The high court’s ruling was a major victory for the Trump administration in that it limited an individual judge’s authority in granting nationwide injunctions. The administration hailed the ruling as a monumental check on the powers of individual district court judges, whom Trump supporters have argued are usurping the president’s authority with rulings blocking his priorities on immigration and other matters.

But the Supreme Court did not address the merits of Trump’s bid to enforce his birthright citizenship executive order.

“The Trump administration made a strategic decision, which I think quite clearly paid off, that they were going to challenge not the judges’ decisions on the merits, but on the scope of relief,” said Jessica Levinson, a Loyola Law School professor.

Atty. Gen. Pam Bondi told reporters at the White House that the administration is “very confident” that the high court will ultimately side with the administration on the merits of the case.

Uncertainty ahead

The justices kicked the cases challenging the birthright citizenship policy back down to the lower courts, where judges will have to decide how to tailor their orders to comply with the new ruling. The executive order remains blocked for at least 30 days, giving lower courts and the parties time to sort out the next steps.

The Supreme Court’s ruling leaves open the possibility that groups challenging the policy could still get nationwide relief through class-action lawsuits and seek certification as a nationwide class. Within hours after the ruling, two class-action suits had been filed in Maryland and New Hampshire seeking to block Trump’s order.

But obtaining nationwide relief through a class action is difficult as courts have put up hurdles to doing so over the years, said Suzette Malveaux, a Washington and Lee University law school professor.

“It’s not the case that a class action is a sort of easy, breezy way of getting around this problem of not having nationwide relief,” said Malveaux, who had urged the high court not to eliminate the nationwide injunctions.

Justice Sonia Sotomayor, who penned the court’s dissenting opinion, urged the lower courts to “act swiftly on such requests for relief and to adjudicate the cases as quickly as they can so as to enable this Court’s prompt review” in cases “challenging policies as blatantly unlawful and harmful as the Citizenship Order.”

Opponents of Trump’s order warned there would be a patchwork of policies across the states, leading to chaos and confusion without nationwide relief.

“Birthright citizenship has been settled constitutional law for more than a century,” said Krish O’Mara Vignarajah, president and chief executive of Global Refuge, a nonprofit that supports refugees and migrants. “By denying lower courts the ability to enforce that right uniformly, the Court has invited chaos, inequality, and fear.”

Sullivan and Richer write for the Associated Press. AP writers Mark Sherman and Lindsay Whitehurst in Washington and Mike Catalini in Trenton, N.J., contributed to this report.

On Thursday, the Supreme Court heard oral arguments in the case of Trump vs. CASA Inc. Though the case arises out of President Trump’s January executive order on birthright citizenship and the 14th Amendment, Thursday’s oral argument had very little to do with whether everyone born in the U.S. is automatically a U.S. citizen. Instead, the argument mostly focused on a procedural legal issue that is just as important: whether lower-court federal judges possess the legitimate power to issue nationwide injunctions to bring laws or executive orders to a halt beyond their districts.

There is a very straightforward answer to this question: No, they don’t. And it is imperative for American constitutionalism and republican sef-governance that the justices clearly affirm that.

Let’s start with the text. Article III of the Constitution establishes the “judicial Power” of the United States, which University of Chicago Law School professor Will Baude argued in a 2008 law review article “is the power to issue binding judgments and to settle legal disputes within the court’s jurisdiction.” If the federal courts can bind certain parties, the crucial question is: Who is bound by a federal court issuing an injunction?

In our system of governance, it is only the named parties to a given lawsuit that can truly be bound by a lower court’s judgment. As the brilliant then-Stanford Law School professor Jonathan Mitchell put it in an influential 2018 law review article, an “injunction is nothing more than a judicially imposed non-enforcement policy” that “forbids the named defendants to enforce the statute” — or executive order — “while the court’s order remains in place.” Fundamentally, as Samuel L. Bray observed in another significant 2017 law review article, a federal court’s injunction binds only “the defendant’s conduct … with respect to the plaintiff.” If other courts in other districts face a similar case, those judges might consider their peer’s decision and follow it, but they are not strictly required to do so. (For truly nationwide legal issues, the proper recourse is filing a class-action lawsuit, as authorized by Rule 23 of the Federal Rules of Civil Procedure.)

One need not be a legal scholar to understand this commonsense point.

Americans are a self-governing people; it is we the people, according to the Constitution’s Preamble, who are sovereign in the United States. And while the judiciary serves as an important check on congressional or executive overreach in specific cases or controversies that come before it (as Article III puts it), there is no broader ability for lower-court judges to decide the law of the land by striking down a law or order for all of the American people.

As President Lincoln warned in his first inaugural address: “The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by” the judiciary, “the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers.”

Simply put, the patriots of 1776 did not rebel against the tyranny of King George III only to subject themselves, many generations later, to the black-robed tyranny of today. They fought for the ability to live freely and self-govern, and to thereby control their own fates and destinies. Judicial supremacy and the concomitant misguided practice of nationwide injunctions necessarily deprive a free people of the ability to do exactly that.

It is true that Chief Justice John Marshall’s landmark 1803 ruling in Marbury vs. Madison established that “it is emphatically the province and duty of the judicial department to say what the law is.” But it is also true, as Marshall noted in the less frequently quoted sentence directly following that assertion: “Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” Note the all-important qualifier of “apply the rule to particular cases.” Marbury is often erroneously invoked to support judicial supremacy, but the modest case- and litigant-specific judicial review that Marshall established has nothing to do with the modern judicial supremacy and nationwide injunctions that proliferate today. It is that fallacious conception of judicial supremacy that was argued Thursday at the Supreme Court.

Chief Justice John G. Roberts Jr., one of the swing votes in CASA, is not always known for judicial modesty. On the contrary, in clumsily attempting to defend his institution’s integrity, he has at times indulged in unvarnished judicial supremacist rhetoric and presided over an unjustifiable arrogation of power to what Alexander Hamilton, in the Federalist No. 78, referred to as the “least dangerous” of the three branches.

If Roberts and his fellow centrist justices — namely, Brett Kavanaugh and Amy Coney Barrett — have any sense of prudence, they must join their more stalwart originalist colleagues in holding that nationwide injunctions offend the very core of our constitutional order. Such a ruling would not merely be a win for Trump; it would be a win for the Constitution and for self-governance itself.

Josh Hammer’s latest book is “Israel and Civilization: The Fate of the Jewish Nation and the Destiny of the West.” This article was produced in collaboration with Creators Syndicate. @josh_hammer