Supreme Court confronts Trump power grab 

WASHINGTON (CN) — The Supreme Court will put President Donald Trump’s power grab under the microscope next week, as the justices review whether he can revoke a constitutional right, a high court precedent and a federal law all with the stroke of a pen.

Specifically, the Supreme Court on May 15 will consider Trump’s nationwide efforts to curtail birthright citizenship for certain immigrants through an executive order — an act now being challenged in the courts. But the justices aren’t just tasked with deciding if the controversial order is lawful: Instead, they will focus on whether judges can block Trump from enforcing it.

“The case before the Supreme Court is not about the constitutionality of denying birthright citizenship to children of undocumented immigrants,” Ilya Somin, a law professor at George Mason University and a chair in constitutional studies at the libertarian Cato Institute, said in a statement.

Rather, “it focuses only on whether it is appropriate for courts to issue nationwide injunctions against the President’s egregiously unconstitutional executive order," Somin continued. The alternative is curtailing rulings to specific parties or jurisdictions, such that legal relief is “limited to people directly involved in the litigation or those living in states that have sued the government.”

Nationwide injunctions are federal orders that apply to more than just the plaintiffs in a particular case. Such injunctions have drawn criticism, but historically, both sides of the aisle have benefited from a judicial check on the executive branch.

Right now, Trump’s opponents are winning national injunctions limiting some of Trump’s most controversial actions, like when a Boston federal judge blocked the administration from deporting migrants without full due process to places where they have no ties. If nationwide injunctions go away, it could cut off one of the only routes for successfully challenging Trump’s executive authority.

“This is, perhaps, the worst time in our Nation’s history for this Court to consider rolling back the powers of the federal courts,” Common Cause, a nonpartisan advocacy group, wrote in a brief before the Supreme Court.

In an emergency appeal, Trump claims that universal injunctions have reached “epidemic proportions” during his second administration, compromising the functioning of the executive branch.

“This Court should declare that enough is enough before district courts’ burgeoning reliance on universal injunctions becomes further entrenched,” Trump wrote.

Trump suggests he has been unduly burdened by universal injunctions. He compares the 15 injunctions against his administration in February alone to the 14 injunctions against the Biden administration during its first three years. And yet, as divisive political issues are increasingly settled in court, Trump is hardly the first to raise concerns over nationwide injunctions.

A bipartisan issue? 

Before Trump returned to office in January, it was Democrats leading the charge against universal relief. Democrats were outraged in 2023 when U.S. District Judge Matthew Kacsmaryk, a Trump appointee, single-handedly moved to take abortion drugs off shelves across the U.S.

When the Supreme Court reviewed the dispute, Justice Neil Gorsuch, also a Trump appointee, lamented a rash of universal injunctions from lower courts in recent years. Gorsuch noted there were zero universal injunctions during former President Franklin D. Roosevelt’s 12 years in office. That’s compared to more than 60 issued by lower courts in just the last few years.

“It’s not a partisan issue because Democratic administrations faced these very, very onerous injunctions,” said Alan Trammell, a law professor at Washington and Lee University School of Law. But “the shoe’s on the other foot when you have a Republican administration, and blue state attorneys general are the ones trying to pursue these aggressive universal injunctions.”

Why now? 

Despite bipartisan animosity toward universal injunctions, court watchers and legal experts are puzzled at the justices’ decision to review the issue through a topic as fraught and controversial as ending birthright citizenship — a guarantee under the 14th Amendment.

“If ever a nationwide injunction is justified, it is here,” Somin said. He noted that citizenship rules are “supposed to be uniform throughout the nation” and that having different citizenship rules in different places would create “obvious confusion and anomalies.”

Birthright citizenship was first enacted to repudiate Dred Scott v. Sandford . That infamous 1857 Supreme Court decision affirmed the legality of slavery and denied Black people citizenship. After the Civil War, lawmakers enshrined the 14th Amendment, which declares that “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.”

That’s been the standard since — but now, Trump is trying to change it. A day-one executive order, entitled “Protecting the Meaning and Value of American Citizenship," claims that people in the country illegally or temporarily are not “subject to the jurisdiction” of the United States and therefore not necessarily citizens.

The executive order has been unilaterally blocked by the lower courts. Trump wants the Supreme Court to limit these injunctions and instead only offer relief (if any) to two advocacy groups, seven individuals, and the suing 22 states. The Justice Department has also challenged those states’ standing, potentially limiting the injunction further.

Instead of reviewing the constitutionality of Trump’s executive order, the justices will decide whether the lower court’s injunctions can apply to everyone impacted by the policy — not just the plaintiffs in the litigation.

Alan Morrison, associate dean at the George Washington University School of Law, argues the administration has reframed the “merits” of the case to focus on whether lower federal courts may ever issue nationwide injunctions. The Trump administration says no.

“Applicants are wrong in their conclusion and wrong in their effort to recast the merits issue in that way because to do so would result in the court issuing an advisory opinion in violation of Article III,” Morrison wrote.

The case also marks a rare argument over an emergency appeal. In rare and high-profile cases like Texas’ pre-Dobbs abortion ban, Covid-19 restrictions and air pollution standards, the justices held special argument sessions before they issue their decision.

While birthright citizenship falls into this category, the justices just recently passed up an opportunity to review the use of nationwide injunctions on the merits docket, where the justices wouldn’t have been rushed to issue a ruling.

Compare that to how the Supreme Court handled similar controversies during the Biden presidency. Last year, the Biden administration asked the justices to review whether an appeals court erred when granting universal relief in a student loan forgiveness case.

The justices agreed to review the Education Department’s rule but declined to take up the government’s second question on universal injunctions. Similarly, they refused to take up the same question in a case involving the Corporate Transparency Act.

In prior cases, the court typically resolves the merits of a case, Morrison said — leaving the universal injunction question as more of an academic one. Morrison said the Trump administration wants to isolate the issue so the court will decide to forbid all national injunctions.

Morrison counseled against a brightline ruling.

“The advisability of universal injunctions is not an always or never question, but, instead, whether to grant one depends on all the circumstances of the case,” he wrote.

The mix of competing policy issues, Morrison said, would be better left to Congress, which is reviewing legislation on nationwide injunctions. He cautioned against curtailing judicial authority because of the current political atmosphere.

“Even if the current president’s ability to fight off his attackers is likely to be the motive that members of the President’s party have to support limitations on national injunctions, they need to keep in mind the likelihood that the shoe will be on the other foot when an administration of the other party is once again in control of the executive branch,” Morrison wrote.

What’s at stake? 

If the Supreme Court sides with Trump, anyone who didn’t join the ongoing birthright litigation would have to file their own lawsuit.

CASA and the Asylum Seeker Advocacy Project — the advocacy groups challenging Trump’s order — represent over 800,000 members across all 50 states. The groups said universal relief was the only solution that protected all of its members.

“Requiring newborns covered by the executive order to show that their parents are members of CASA or ASAP to obtain the benefits of the injunction would impose an enormous burden on expecting parents, membership organizations, government employees at all levels, and hospital staff,” the groups wrote. “Those determining a baby’s citizenship status would be tasked with confirming parentage, the citizenship or immigration status of both parents, and membership in specific organizations.”

Local government officials have likewise warned that even a limited enforcement of Trump’s order would be felt nationwide. Children born under the enforcement of the policy would become ineligible for federally funded benefits programs like nutrition assistance and health care. Identification documents for all children — even those of citizens — would become suspect, as a U.S. birth certificate would no longer serve as definitive proof of citizenship.

“If implemented, the Order will undercut the social fabric and cohesion of communities by creating a permanent underclass of people with unequal rights,” the officials wrote to the court.

Removed from the birthright citizenship context, a collection of trade organizations have pushed the justices to uphold nationwide relief, arguing businesses depend on clear and uniform laws.

“If federal law differs across jurisdictions, or changes rapidly — particularly amid a flurry of conflicting court decisions — businesses risk being paralyzed by uncertainty, whipsawed by fast-changing rules, and burdened by unnecessary costs and legal exposure,” the trade groups wrote.

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