WASHINGTON-In 1836, slaveholders took Dred Scott, an enslaved person, from Missouri, a slave state, to the territory that became Minnesota. The law governing that territory prohibited slavery. After those who claimed to own him returned him to Missouri, Scott sued them in federal court, under a constitutional provision that permits federal lawsuits by American citizens.
Scott argued that, after he lived in a free territory, no one had the right to keep him enslaved. But the Supreme Court, in 1857, ruled that no one of African descent, free or otherwise, could ever qualify as an American citizen. So Scott had no right to sue as a citizen in federal court.
Historians consider Dred Scott’s case a precipitating cause of the Civil War. After the war, the 14th Amendment explicitly conferred American citizenship on any person “born or naturalized in the United States, and subject to the jurisdiction thereof.” Since the 14th Amendment’s ratification, in 1868, American courts and presidents–until now–have consistently ruled the 14th Amendment’s “citizenship” clause means what it says: Anyone “born” under the “jurisdiction” of the United States is an American citizen.
On January 20, the first day of his second term, Republican President Donald Trump issued Executive Order 14,160. The order provides that “United States citizenship does not automatically extend to persons born in the United States.” And–contrary to history and tradition—the order specifically excludes babies born when their parents were here under what authorities consider illegal conditions. Trump claims that only those legally in the United States are “subject to” American jurisdiction.
As is common with Trump’s 152 executive orders, this one sparked litigation. Those suing to throw out this particular order include 23 states, two immigrant-advocacy organizations, and five pregnant women. All five used pseudonyms, afraid that, if they exercised their right to sue under their real names, Trump would deport them.
No legal dictionary defines the word “jurisdiction” as narrowly as does Trump. And, so far, every court that has considered these cases has declared Trump’s order invalid. Even a judge appointed by Ronald Reagan called the order “blatantly unconstitutional.”
On May 15, the U.S. Supreme Court considered three of these cases. But the court spent little time on Trump’s reinterpretation of the 14th Amendment. Instead, the court focused on the breadth of the lower court orders.
All these cases involve temporary or preliminary court orders, in cases still in court. These orders raise concern because they all apply nationally, protecting people not technically before the court. Usually, court orders apply only to the parties to the case.
But sometimes, in extraordinary circumstances, federal courts issue what are called “universal injunctions.” These court orders suspend the challenged government action across the country, wherever the government attempts to apply it.
So, for example, when Democratic President Barack Obama’s Labor Department proposed to limit certain anti-union activities, a Republican-named Texas federal judge temporarily suspended the proposed regulation across the country, not just on behalf of the employer who filed the lawsuit.
Similarly, when six Republican-led states sued to stop President Joe Biden from offering a quick path to student-loan forgiveness, a Midwestern federal appeals court put the plan on hold across the country, not just in those six states.
Presidents of both parties have grumbled for years about universal, or nationwide, injunctions. And likewise, Supreme Court justices of divergent ideologies have questioned these orders’ wisdom, and even their validity.
So, for example, in 2018, Justice Clarence Thomas called them “legally and historically dubious.” In 2020, Justice Neil Gorsuch called their “routine issuance…patently unworkable.” In 2022, Justice Elena Kagan said it “just can’t be right” that an individual federal judge “can stop a nationwide policy in its tracks” for “the years that it takes to go through the normal process.” And, in 2023, Justices Brett Kavanaugh and Amy Coney Barrett called nationwide injunctions “an important question that could warrant our review in the future.”
This discomfort came across in the May 15 oral argument over citizenship and Trump’s order. Trump’s Solicitor General, D. John Sauer, argued the case for the administration.
Sauer pointed to what he called “a host of practical problems” with universal injunctions. Because any one of 680 federal judges can suspend operation of a federal law nationally, injunctions encourage judge-shopping. Those challenging Democratic presidents go to Texas; those challenging Republican presidents try the Northeast or West Coast.
The availability of national injunctions, Sauer argued, also encourages lower courts to rush to judgment, to issue their order before other courts. Universal injunctions also risk conflicting orders. They cause an imbalance between the parties: The government must win in every court, while challengers need only win in one.
And national injunctions on divisive issues suspend federal action even in states–including the 27 that did not join these actions–that may support the challenged federal action. Better not to let each federal judge act as a “roving commission” to vindicate all legal wrongs across the country.
Besides, said Sauer, to the extent a wrong needs a national remedy, the federal courts have a tool for that, called a “class action.” Class actions protect the interests of those not individually before the court. But Sauer ran into trouble when he admitted that, in these cases, the government would use the legal limits on who can bring them to prevent courts from certifying these cases as class actions.
Also, as Jeremy Feigenbaum, New Jersey’s Solicitor General, pointed out, in 23 states, states can’t bring class actions, so their availability wouldn’t help his clients. And as Justice Gorsuch pointed out, class actions take time. Kelsi Corkran, representing the associational and individual parties, noted her associational clients might not even qualify for a class action, and her individual clients might fear coming forward to represent those covered by a class action.
Sauer also ran into trouble when asked if the government would respect a judicial order that didn’t cover the entire country. Only an order from the Supreme Court itself, he replied. But, as Justice Kagan pointed out, if so, and if–as has happened in these cases–all the lower federal courts ruled against the government, the government would have no incentive to bring a case to the Supreme Court, instead of continuing to seek a lower-court judge who’d rule in its favor.
Sauer’s position prompted Justice Coney Barrett to ask, in effect, “Really?” Justice Ketanji Brown Jackson accused Sauer of making the federal courts “into a ‘catch-me-if-you-can’ kind of regime.”
Sauer did his side no favors by starting and finishing his argument with a claim for the challenged order’s constitutionality. No justice responded favorably to this position.
Contrary to the 14th Amendment
As attorney Corkran pointed out, not only does Sauer and Trump’s position seem contrary to the 14th Amendment’s “plain text,” but it also departs from “our common-law history, this court’s precedent, a federal statute, and over a century of executive branch practice.”
Justice Sonia Sotomayor agreed, citing four Supreme Court cases dating back to 1898. Justice Sotomayor also noted that, without a universal injunction pending a final ruling, children could remain stateless for years, simply because they were born in the wrong state. Not having a nationwide ruling would invite hundreds of thousands of individual lawsuits.
Justice Sotomayor posed a hypothetical that caused Sauer difficulty: What if a new president decided to seize everyone’s gun–would every gun owner have to file a separate lawsuit to vindicate his or her 2nd Amendment rights?
And, contrary to Justice Thomas’s claim that “we survived until the 1960s without universal injunctions,” Justice Sotomayor cited court orders at least since 1925. The U.S. has “had universal injunctions in some form…since the founding,” she said.
New Jersey Solicitor General Feigenbaum noted other practical problems without a universal injunction in these cases. Six thousand babies are born every year out of state to New Jersey residents. Without a national ruling, those babies’ citizenship would depend on the site of their birth.
Moreover, were these babies born in a state that denied them citizenship, since they’d have no Social Security number, New Jersey would suffer serious administrative burdens in determining their eligibility for government programs limited to citizens.
National citizenship would depend on whether the birth took place in a jurisdiction covered by a court order. Could Immigration and Customs Enforcement arrest and deport them while they stayed in Pennsylvania, but not follow them into New Jersey?
As Justice Kavanaugh wondered, “What do hospitals do with a newborn?” And how long will it take for federal workers to know how to enforce this order? The order includes a lag time of 30 days; Justice Kavanaugh questioned that time frame’s adequacy.
In cases involving court orders, especially preliminary orders, the courts generally balance the hardships to the parties from a ruling either way. As New Jersey Solicitor General Feigenbaum pointed out, the citizenship and lawful continued residence in this country of the babies covered by these cases might depend on their location. Compare the limbo in which these children might have to live for years, with the harm caused to the federal government of simply having to continue following the practice it’s been following for over a century.
A decision is expected by early summer.
CONTRIBUTOR
