The Trump administration’s relentless assault on the rule of law is a kind of arson: It is setting so many blazes that the fire department is having trouble putting them all out at once. Last week, Donald Trump asked the Supreme Court to cut off the water.
Trump’s executive order revoking birthright citizenship for undocumented immigrants—which flagrantly overrides law, Supreme Court precedent, and the text of the Fourteenth Amendment—has, at least for now, reached the justices primarily as a procedural question. At issue during oral argument before the Court was the constitutionality of nationwide injunctions put in place by district-court judges, rather than the merits of the order itself.
Nationwide injunctions are not an inherently partisan issue—leaders of both parties have complained at one point or another about an overreaching federal judge. But in this case, allowing the federal government to revoke birthright citizenship would create a logistical nightmare for states that would have to figure out how to verify the citizenship of babies in order to allocate or administer benefits. An entire class of stateless infants would be created overnight. Indeed, one could imagine a ruling that narrows the authority of judges to issue nationwide injunctions to specific circumstances but that would still allow for such an injunction in this extraordinary case. That may be where the justices are headed, although there was no apparent agreement at oral argument on how to do so.
After listening to the arguments, I was convinced by Justice Ketanji Brown Jackson’s observation that, in many cases, “universal injunctions” are just the courts “telling the defendant, Stop doing this thing that the court has found to be unlawful.” However frustrating nationwide injunctions may be when you oppose them, they seem preferable to the alternatives floated. Yes, they sometimes lead to judges making overbroad decisions, as with the abortion-medication case unanimously reversed by a very conservative Supreme Court. But the Trump administration’s view that such injunctions are unconstitutional, and that district-court judges should be able to bar the executive order revoking birthright citizenship with respect to only individual parties, would produce even worse outcomes, in which the federal government would be free to trample the constitutional rights of anyone who doesn’t specifically assert them unless the Supreme Court decides to act.
Justice Sonia Sotomayor attempted to put this in a context that her conservative colleagues might understand. “So when a new president orders that because there’s so much gun violence going on in the country, and he comes in and he says, ‘I have the right to take away the guns from everyone,’ then he sends out the military to seize everyone’s guns, we and the courts have to sit back and wait until every named plaintiff gets—or every plaintiff whose gun is taken comes into court?” Sotomayor asked.
[Nicholas Bagley: The birthright-citizenship case isn’t really about birthright citizenship]
This is more or less what is happening now with birthright citizenship. The Trump administration is asking the Supreme Court to let Trump run riot over the Constitution indefinitely while narrowing the ability of those affected to challenge violations of their constitutional rights. And its proposed remedy—class-action lawsuits—is something that it also believes to be legally suspect, and that it would presumably attack later. As Solicitor General D. John Sauer made clear to the justices, “I do not concede that we wouldn’t oppose class certification in this particular case.” It was reminiscent of when, during Trump’s second impeachment, his lawyers argued that impeachment was unnecessary because he could be criminally prosecuted; once prosecutions began, those same people argued that prosecuting him was unconstitutional. There is no acceptable way to oppose Trump and his agenda.
At one point, Sauer complained that nearly 40 nationwide injunctions against the administration have been issued in the past four months. His implication was that the courts are out of control. But another explanation is also available: An out-of-control executive who ignores constitutional restraints on his authority also results in a lot of injunctions. Even accepting the premise that there are too many nationwide injunctions, executive—not judicial—overreach seems like the actual problem here.
Nationwide injunctions certainly aren’t a perfect solution to the problem of a lawless president, but class-action lawsuits are even more flawed. To begin with, a class action requires that a group get a lawyer and persuade a judge to certify it as a class. That’s already a difficult task—and likely not a speedy process—and in doing so, those bringing suit might reveal themselves to the federal government, which now claims that it can clap undocumented people in irons, put them on a plane, deport them to an overseas Gulag in El Salvador, and then refuse to bring them back. Many people likely would not participate for fear of this outcome. Then there’s the fact that the Trump administration has successfully bullied so many white-shoe law firms out of doing pro bono work opposing it that those seeking to assert their constitutional rights may find themselves short of advocates.
Even beyond this nightmarish but realistic scenario, the government’s solution is to impose ever-heavier administrative burdens on the people whose rights are at stake. This is the reverse of how it should be. Having each individual get a lawyer to assert his or her constitutional rights is much more difficult and complicated than one judge telling the government to stop breaking the law.
“Your argument seems to turn our justice system, in my view at least, into a ‘catch me if you can’ kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights,” Jackson told Sauer. “Your argument says, We get to keep on doing it until everyone who is potentially harmed by it figures out how to file a lawsuit, hire a lawyer, et cetera. And I don’t understand how that is remotely consistent with the rule of law.”
To appeal to a higher court, one has to lose a case. Winners cannot appeal, meaning that if the administration lost in the lower courts, a final resolution on the question would be elusive, and a lawless administration could continue to violate the Constitution. As Justice Elena Kagan pointed out, under the Trump administration’s theory, the government could lose in one part of the country and then decide not to appeal, allowing it to keep enforcing an unconstitutional executive order elsewhere. “The government has no incentive to bring this case to the Supreme Court, because it’s not really losing anything. It’s losing a lot of individual cases, which still allow it to enforce its EO against the vast majority of people to whom it applies,” Kagan said.
That’s why the nationwide injunctions are necessary for getting cases to the Court. “If the Court narrows the scope of the nationwide injunction or eliminates it entirely, it means that the administration will have free rein to basically bring these cases in whatever district they want, and they’ll get unfavorable resolutions, and then they just sit on them, and there’s no way to actually get to a final resolution where the court weighs in on the merits,” Melissa Murray, a law professor at NYU, told me. “They can win by losing by simply sitting on their hands and not appealing any of their losses.”
The argument against birthright citizenship is an entirely ahistorical and atextual one that would restore the antebellum understanding of citizenship, in which one inherits the status of their parents—a kind of “blood guilt” where the sins of the parents are visited on the child. As the legal scholars Anthony Michael Kreis, Evan Bernick, and Paul Gowder dryly put it, “There was, to be sure, one circumstance where the American founders permitted degraded legal status to be heritable, but we hope that it is not one that today’s denationalizers would embrace.” (They mean slavery.)
Sauer, for his part, kept insisting that “the Fourteenth Amendment related to the children of former slaves, not to illegal aliens who weren’t even present as a discrete class at that time.” The Framers could have easily written “the descendants of the emancipated” if they had meant it that narrowly. Instead, they enshrined nonracial citizenship in the Constitution with the phrasing “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
[Martha S. Jones: The real origins of birthright citizenship]
Indeed, President Andrew Johnson complained that the 1866 Civil Rights Act, parts of which were later adopted in the Fourteenth Amendment, extended citizenship to “the Chinese of the Pacific States” and “the people called Gypsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood.” Yes, and that was the point. “A liberal and brotherly welcome to all who are likely to come to the United States, is the only wise policy which this nation can adopt,” Frederick Douglass declared in 1869. “It would be madness to set up any one race above another, or one religion above another, or proscribe any on account of race color or creed.”
The text of the Constitution is at odds, however, with the Trumpist project. The conservative legal movement has done what it does best, which is fabricate a historical justification for a contemporary political goal. Former Justice Warren Burger called the transformation of the Second Amendment into a personal right to firearm ownership a “fraud,” but that interpretation of the right to bear arms at least has a long cultural tradition of firearm ownership behind it. Trump’s executive order is an attempt to rewrite the Fourteenth Amendment by fiat as the Confederacy would have written it—the precise opposite of the intent of the Republicans who drafted it.
“They wanted everyone to have citizenship. They did not want to leave it up to the political parties, and they wanted it to be clear,” Amanda Frost, a law professor at the University of Virginia, told me. “They said, We’re going to resolve this question of citizenship once and for all, and if we leave it unclear, we’re afraid a future political party who doesn’t share our view of basic equality will have a different view.” That was prescient, although they couldn’t have imagined that the party that would not share that view would be their own.
A few days ago, Chief Justice John Roberts warned in an appearance at Georgetown Law School that the rule of law is “endangered.” One reason for that is Roberts’s own opinion that the president is nigh immune to criminal prosecution for lawbreaking, a finding that has emboldened Trump to ignore the law. Immunity is apparently insufficient, however—Trump also wants the ability to violate the Constitution at will without meaningful resistance from the courts. In the cases involving his deportation of Kilmar Abrego Garcia, the Trump administration has already begun to ignore the judiciary and the Constitution. Here, Trump is asking permission. Have the justices learned their lesson yet?
