On January 20th, the Trump administration underwent one of their first of many constitutional crises. With the signing of Executive Order 14160, inaptly titled “Protecting the Meaning and Value of American Citizenship,“ the Trump administration fundamentally turned the 14th Amendment on its head, challenging the long-held assumption that anyone born on United States soil enjoys the privileges of American citizenship. This order commanded executive agencies to immediately refuse to recognize the citizenship of people who received their citizenship via the 14th Amendment. Birthright citizenship differentiates the New World from the Old; a system of jus soli citizenship revolutionized the world and the relationship between the populace and government. By not withholding citizenship from those who previously would have been rejected, the Western world defined itself as a home for many disenfranchised peoples. In effect, birthright citizenship is one of the many values that defines America as a “Western” nation. At least it did for a while.
This did not go as easily as the administration would have hoped, however. Numerous district court judges used their powers to issue preliminary injunctions, effectively telling the White House that they could not go through with this blatantly unconstitutional act. The injunctions issued by lower district court judges regarding birthright citizenship is part of a wider attempt by judges nationwide to use their power to stop the administration from violating the virtues of the Constitution; Trump’s commitment to laying-off thousands of federal employees, deporting migrants, and freezing funds has been halted in large part by the ability of lower district court judges to issue these universal injunctions. The Trump administration finds these attempts by judges to be “judicial overreach” (even though they largely defended the same tactic being used against Biden’s student loan reform) and are steadfast in going through with their policies.
Numerous lawsuits were presented, including one from “CASA de Maryland,” an immigrants-rights organization committed to defending the virtues of birthright citizenship in the United States. Their assertion is that the executive order strips the constitutionally-guaranteed right to birthright citizenship from hundreds of thousands of Americans.
All of this culminated on May 15, when the Supreme Court heard arguments from the US solicitor general Dean John Sauer, New Jersey solicitor general Jeremy Feigenbaum, and representative from CASA and other immigrant-rights groups Kelsi B. Corkran.
Trump v. CASA does not just touch on the sanctity of birthright citizenship as an American concept enshrined in our founding document. The case goes even farther, defining the limitations that lower circuit judges have come to know as one of their premier and defining duties. The outcome of this case does not just affect the children of non-citizens born on US soil, but the nation as a whole, as well as the ability for our judicial branch to have oversight on our executive.
Universal Injunctions In The First Trump Administration
While the definition of a “nationwide injunction” can be deduced through its own name, its practice in American history gives us a glimpse into the abilities, virtues, and overall understanding of the action. By looking at nationwide injunctions that were issued in the first Trump administration, we can learn how the current President made it a focal point of his degradation of judicial powers and seeing lower court judges as adversaries who must be defeated, rather than allies in the common goal of upholding the Constitution.
It seems like decades ago when Trump’s ramblings about banning travel from majority-Muslim countries metastasized into a full-on executive order. On January 27, 2017, President Donald Trump signed Executive Order 13769, also known as the “Muslim Ban.” Western District of Washington judge James L. Robart issued a nationwide injunction on the order, saying that it does not defend or protect the national security interests Republicans imbued as not being aptly protected. Following the injunction, President Trump signed Executive Order 13780, titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” or more commonly referred to as “Travel Ban 2.0.” This time, District of Hawaii court judge Derrick Watson issued a nationwide injunction in order to delay the implementation of this order.
Eventually, the Supreme Court allowed the executive order to go into effect, essentially ending the attempts that Robart and Watson put into motion. However, these were not the only universal injunctions issued during Trump’s first term. Attempts to withhold funding from sanctuary cities, ban transgender individuals from military service, and changing DACA requirements all were held up in courts by district judges through universal injunctions. Overall, 55 injunctions were issued against Trump during his first administration; this is more than all of the injunctions issued during the Obama and Biden presidencies combined. Obviously, Trump knew that in his return to the White House, he was going to have to limit the ability of lower district judges to delay his agenda.
Trump v. CASA
The case argued in the Supreme Court today asks a simple question: does a district court judge have the range to block the enforcement of an executive order to parties that were not involved in the suit? While birthright citizenship is the vehicle for which the argument is being made, the meat of the substance revolves around the question of universal injunctions. On a personal level, while I value the importance of birthright citizenship, I believe the ability of lower court judges to temporarily halt executive actions is a key part of our separation of powers and arguably, a much more impactful aspect of this case than that of birthright citizenship.
To summarize some of the key aspects of the oral arguments, one has to start with Justice Elena Kagan, who ferociously ripped into the US solicitor general with an argument specifically regarding the range that district court judges possess. By pointing out that, if the government loses cases that only specifically target plaintiffs, why would anyone ever appeal to the Supreme Court? Would that not weaken the institution to a degree that it cripples it from all of the power that it needs to function?
Even Justice Kavanaugh, a Trump appointee, had some specific issues with the merits of the birthright citizenship aspect of the case. Kavanaugh pointed out the issues regarding ambiguity of citizenship for certain newborns at time of birth, asking “what do hospitals do with a newborn? What do states do with a newborn?” The US solicitor general’s answer was less than ideal, basically adding to the fire of uncertainty by saying that “federal officials will have to figure that out.”
Overall, the specific aspects of the birthright citizenship aspect of the case were less touched up on, and will probably not be the main cause of deliberation for the justices. Furthermore, the Supreme Court reaffirmed the 14th Amendment’s commitment to birthright citizenship in the landmark case United States v. Wong Kim Ark (1898). Personally, I do not see the Supreme Court doing away with birthright citizenship, as every justice (except for Thomas) seems to have very little faith in the merits of the case brought forth by the government. The issue about universal injunctions is a lot more testy and could potentially have wide-ranging impact.
Judges Thoughts on Universal Injunctions
The justices that make up the Roberts Court have a history of not fully supporting the institution of universal injunctions. Most noteworthy is Justice Thomas’ opinion regarding such injunctions, specifically found in the presiding arguments for Trump v. Hawaii (2018). Justice Thomas wrote in his concurring opinion:
Merits aside, I write separately to address the remedy that the plaintiffs sought and obtained in this case. The District Court imposed an injunction that barred the Government from enforcing the President’s Proclamation against anyone, not just the plaintiffs. Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called “universal” or “nationwide” injunctions—have become increasingly common. District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system— preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch
He goes onto develop his assertion that the use of nationwide injunctions is a more contemporary invention, and that its use might stray further from the beliefs of the framers than one would have hoped. He notes:
These injunctions are a recent development, emerging for the first time in the 1960s and dramatically increasing in popularity only very recently. And they appear to conflict with several traditional rules of equity, as well as the original understanding of the judicial role.
To the extent that nationwide injunctions are a “recent development,” Justice Thomas is not totally wrong. However, there are some early 20th century court cases that showcase the constitutionality and legality of these actions, such as Lewis Publishing Co. v. Morgan in 1913 and Frothingham v. Mellon in 1923. While the frequency of these injunctions have picked up since the 1960s (in large part because of the New Deal), the practice is by no means a “recent development” as Thomas asserts in his concurring opinion.
Furthermore, Justice Gorsuch has also written about the institution in previous opinions, most notably his concurring opinion in Department of Homeland Security v. New York (2020). Gorsuch writes:
Whether framed as injunctions of “nationwide,” “universal,” or “cosmic” scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case… Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III.
He furthers this claim, arguing that nationwide injunctions deteriorate and destruct the very duties of the judicial branch and its relationship with the Executive. He writes:
As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions.
Other justices have not had such scornful or outward views regarding the use of universal injunctions. It would be fair to say (by viewing similar cases) that Justices Roberts, Kavanaugh, Alito, and Barrett are similarly positioned in their dislike for these actions. On the contrary, Justices Sotomayor, Kagan, and Jackson are more likely to support universal injunctions, seeing as they uphold it even when it juxtaposes with their ideological preferences, such as in the student loan injunctions filed during the Biden administration.
All of these arguments miss a key factor regarding the institution as a whole, and their implementation today. The Trump administration is historic in their blatant disregard for the Constitution. Now more than ever, district court judges have to place roadblocks wherever they see fit in order to delay and defy actions that are incongruent with our founding document. This can be done through universal injunctions.
Matter of the Fact: The Current Administration
In Trump’s first 100 days in office, district court judges issued a collective 25 nationwide injunctions. The reasons for this can be boiled down to a simple question of “chicken or the egg;” do our district court judges have an impulse to bring down the authority of the Executive and assert the supremacy of the Judiciary? Or are Trump’s actions record-breaking and whiplashing in their unconstitutionality? In my opinion, the latter holds more weight when assessing the reasons behind the high number of universal injunctions.
Going through every single constitutional crisis during Trump’s first 100 days in detail requires a written work all on its own. Donald Trump and his sycophantic administration have fired thousands of government employees, inspectors generals, and other impartial watchdogs. The administration has done away with entire government agencies such as USAID and the Department of Education. They have deported individuals without due process, withheld funding from congressionally allocated projects, targeted law firms, and gave access to classified internal payment systems to the richest man on the planet. While all of these actions are harmful on their own, the added fact that he isn’t allowed to do any of this is groundbreaking. He usurps the legislation-making powers of Congress and puffs his chest out at members of the Judiciary who take issue with these actions. At the heart of the issue is a President who is grossly overstepping his duties, and constantly casting off the restraints that make us a Constitutional democracy.
The Merits of the Institution
Many people have genuine concerns regarding the validity of universal injunctions. And to a certain extent, I agree; why can a district court judge in Seattle or Honolulu override the Executive power of the President of the United States? Why can a single person, who mostly presides over decisions regarding prisoner petitions and social security appeals, tell the President to delay their policy agenda? Is this system not ripe for abuse? Will I, as a Democrat, not be upset whenever a future President of my liking gets all of their executive orders held up in court?
The answer to these questions is two-pronged: yes, the institution is not perfect. It is able to be abused and does show that the Judicial branch has some level of supremacy over the Executive branch. But district court judges do not deny the ability for Presidents to issue executive orders— they ensure that these orders pass through judicial scrutiny and are adherent to the tenets of the Constitution. The Executive branch does not have the legislative back-and-forth that Congress has. The Supreme Court does not have the time to look over every single executive order to ensure that it is up to the standards of the law. District judges, nationwide, have the ability and the duty to ensure that our Executive branch is following their duty. Now, more than ever, do we see this system not being abused, but used to defend our institutions.
One might say, “while district court judges do have a say in Executive-branch policy, can they really issue injunctions that affect non-plaintiffs?” My answer to this sincere question is that, in cases where the civil rights of individuals are at stake (such as in this birthright citizenship case) the duty to adhere to the Constitution does not fall solely with those who prosecute or defend. The duty is to every American, and when an Executive as brazen and unforgiving as Trump holds onto the reins of power, the ability to do damage to citizens and non-citizens alike exponentially increases when cases are held up in the court system while the implementation of their specific policies goes underway.
We currently do not know what the outcome of Trump v. CASA will be. The Roberts Court seems unsympathetic to the government’s arguments regarding birthright citizenship; meanwhile, prominent conservative voices on the bench find the institution of universal injunctions to be contrary to their relationship with the Executive branch.
While these issues are serious and must be treated with care, it is important to recognize the truth of the situation. In the White House sits a man with little regard for the Constitution and for the restraints placed upon his office. He passes executive orders with little care (or understanding) for their adherence to constitutionality. District court judges, from around the nation, have been doing their due diligence in delaying these executive orders, and to let analysts of the Constitution do their bidding. This power must not be stripped from them. The Supreme Court must do the right thing and allow for universal injunctions to continue to cast a check on the President. A thorn in the side of a tyrant might not stop them entirely, but it ensures their inability to rapidly push legislation that hurts Americans.