Supreme Court takes up birthright citizenship at special hearing

Instead, the legal focus will be whether a single federal judge can issue a universal or nationwide injunction that bars the federal government from enforcing an executive order throughout the United States.

“This case is not about the underlying merits,” said GianCarlo Canaparo, a senior legal fellow at the Heritage Foundation. “The acting solicitor general made a very strategic effort to get the Supreme Court to take up the nationwide injunctions issue cleanly. The administration is perfectly willing to accept its loss in the lower courts for now, provided it can void these sweeping injunctions.”

Still, this case could not be more high-stakes as the Trump administration has been stymied by at least 17 nationwide injunctions between January and the end of March.

The Trump administration sees the special argument session outside the normal Supreme Court oral argument calendar as an opportunity to overcome district judges stalling the Republican’s executive agenda throughout the entire country. Yet questions remain as to whether the justices will decide to rein in federal judges’ abilities to implement these universal injunctions or whether they will stop short of hindering lower courts from blocking presidential policies nationwide.

Case centers on judicial authority, not the 14th Amendment

The consolidated appeals — Trump v. CASA, Trump v. Washington, and Trump v. New Jersey — arise from legal challenges to Trump’s January order, which declared that U.S.-born children of noncitizen parents who lack permanent status are not entitled to automatic citizenship.

If this case were about the actual merits of the birthright citizenship order, the question before the justices would look much more distinct. The underlying question for the judges would center on the 14th Amendment’s citizenship clause, specifically whether children born to noncitizens are “subject to the jurisdiction” of the United States and therefore entitled to automatic citizenship.

Regarding that constitutional question, federal courts in Maryland, Massachusetts, and Washington swiftly blocked the policy. But their orders went far beyond protecting the individual plaintiffs. In each case, the judges issued nationwide injunctions halting the policy entirely while litigation proceeded, which has now teed up the alternative question over sweeping injunctions pending before the nine justices.

Likewise, Trump’s legal team did not appeal those unfavorable rulings on the constitutional merits. Instead, acting Solicitor General Sarah Harris, recently succeeded by the permanent officeholder, D. John Sauer, filed emergency applications on March 13 asking the Supreme Court to partially stay the injunctions, asking the high court to allow the policy’s enforcement outside of the pregnant mothers and other plaintiffs who sued.

Trump team says injunctions are legally excessive

In its filings, the Trump administration argues that universal injunctions have grown to “epidemic proportions” since the start of Trump’s second term, obstructing the executive branch’s ability to implement policies before any final court ruling is issued.

The administration contends that courts may only provide relief to the parties before them, not to nonparties nationwide, and that sweeping injunctions distort the judicial process and invite forum shopping.

But while the administration’s challenge focuses on limiting the reach of lower-court rulings, independent experts have raised deeper constitutional concerns about whether such injunctions ever belonged in the judiciary’s toolkit.

Canaparo, echoing prominent scholarship, said the practice lacks any grounding in legal tradition. “There are no nationwide injunctions in the historical record of Anglo-American law,” he said. “They have no pedigree in British common law or in the federal judiciary’s understanding of its equitable powers.”

He pointed to professor Samuel Bray’s article “Multiple Chancellors,” which traces the roots of injunctive relief and argues that universal injunctions are a modern anomaly. “If the court wants to reestablish the historical boundaries of equity, this is the case to do it,” Canaparo added.

Opponents say patchwork enforcement would cause chaos

The challengers — immigrants’ rights groups, states, and individual plaintiffs — argue that universal relief is necessary to avoid legal uncertainty. If the order takes effect in some states but not others, or applies to some parents but not their neighbors, they warn that chaos could ensue.

“A situation where Trump’s order is in force for some people, but not others — or, alternatively, in some states but not others — creates obvious confusion and anomalies,” said Ilya Somin, a constitutional law scholar at George Mason University and Cato Institute fellow. “Especially when it comes to a policy like citizenship rules that is supposed to be uniform throughout the nation.”

Challengers also argue that the government has declined to meaningfully defend the executive order’s legality, likely because long-standing precedent such as United States v. Wong Kim Ark (1898) recognizes citizenship for virtually all children born on U.S. soil regardless of their parents’ immigration status.

But Canaparo rejected the idea that the need for nationwide uniformity, particularly in immigration or citizenship policy, should factor into the court’s remedial analysis.

Uniformity “is a policy judgment,” he said. “Historically, courts only enjoined enforcement as to the parties before it.” If others wanted relief, “they had to sue separately.”

Revoking birthright citizenship could carry wide consequences

Though the Supreme Court won’t rule directly on the constitutional merits after Thursday, some immigration experts say the stakes are higher than a procedural fight.

Alex Nowrasteh, vice president for economic and social policy studies at Cato, warned that eliminating birthright citizenship would not just affect immigrants.

“It will raise practical difficulties for native-born Americans regardless of their parentage,” he wrote for a Cato Institute blog post three days after Trump’s birthright citizenship order. “With the law, tradition, common sense, reason, and empirical evidence on the side of maintaining birthright citizenship, we can only hope that the courts maintain our exceptional system in its current form.”

States suing the administration say the order will force them to bear the costs of providing medical care and social services to children who are denied federal benefits. The government counters that such claims are speculative and insufficient to justify sweeping injunctive relief.

A few justices have expressed concern about nationwide orders

Several conservative justices have already signaled discomfort with universal injunctions. Justice Clarence Thomas has called them “legally and historically dubious,” and Justices Neil Gorsuch, Samuel Alito, and Brett Kavanaugh have echoed concerns about their overuse and constitutional basis.

Chief Justice John Roberts has not publicly stated a definitive position on the legality or propriety of nationwide injunctions. However, he has consistently emphasized the importance of judicial independence and the appropriate processes for addressing disagreements with court decisions.

For instance, in response to calls for the impeachment of judges over their rulings, Roberts has asserted that such actions threaten judicial integrity and that legal disagreements should be addressed through the appeals process, not through personal attacks or impeachments in Congress.

The balance of power between the three branches of government “doesn’t work if the judiciary is not independent,” Roberts said during a recent live interview. The job of judges, he added, “is obviously to decide cases, but — in the course of that — check the excesses of Congress or the executive, and that does require a degree of independence.”

Decision expected before summer recess

The justices agreed to hear the case on an expedited schedule, setting arguments outside their normal calendar. This unusual move suggests at least some members of the high court believe the issue is urgent and deserving of full review now, rather than wait until the next term begins in October.

SUPREME COURT SETS STAGE FOR POSSIBLE CRACKDOWN ON NATIONWIDE INJUNCTIONS

A ruling is expected by late June, before the court recesses for the summer. If the justices side with the Trump administration, it could reshape how federal policies are challenged in court.

However, it all depends on whether the final decision, if favorable to Trump, comes with some level of top-down guidance from the justices to the more than 700 federal court judges beneath them, or if they attempt a more passive remedy that maintains lower court powers to implement universal injunctions.