The Trojan horse carrying Trump’s bid to end birthright citizenship to SCOTUS

WASHINGTON (CN) — President Donald Trump’s polarizing push to end birthright citizenship asks the Supreme Court a bipartisan question about the extent of judges’ authority.

Last week, the Justice Department filed an emergency appeal before the justices, seeking to limit the reach of universal injunctions from three lower court judges. Republicans have become incensed with judges dictating nationwide policy as Trump’s executive orders are halted by the courts.

“It takes 5 Supreme Court justices to issue a ruling that affects the whole nation,” White House deputy chief of staff for policy Stephen Miller wrote on X. “Yet lone District Court judges assume the authority to unilaterally dictate the policies of the entire executive branch of government.”

Trump has framed similar universal relief as an affront by “Democratic” judges unfairly biased against his administration, but only a few months ago, Democrats were beating the same drum.

“It’s not a partisan issue because Democratic administrations faced these very, very onerous injunctions when traditionally red states bring these lawsuits and try to get injunctions,” Alan Trammell, a law professor at Washington and Lee University School of Law. “Then 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.”

Democrats railed against Judge Matthew Kacsmaryk from the Northern District of Texas, a Trump appointee, when he ruled to remove abortion drugs from shelves nationwide.

Now Senior Judge John C. Coughenour of the Western District Court of Washington, a Ronald Reagan appointee, Judge Deborah L. Boardman of the U.S. District Court for the District of Maryland, a Joe Biden appointee, and Judge Leo T. Sorokin of the United States District Court District of Massachusetts, a Barack Obama appointee, are facing similar fire.

Unlike typical injunctions, universal injunctions stretch beyond the plaintiffs in a case, applying nationwide. Coughenour, Boardman, and Sorokin all issued overlapping universal injunctions preventing the Trump administration from enforcing an executive order claiming to end birthright citizenship.

Trammell said injunctions are tailored to each case, generally applying only so far as to provide complete relief. In cases only affecting two individuals, such as a property dispute, an injunction would only apply to those specific individuals.

For cases with broader impact, such as voting regulation, Trammell said it wouldn’t make sense to provide the same limited relief.

“It doesn’t make sense to say, ‘Well, the relief can be given only to that one voter who brought the lawsuit’ — that’s going to affect the integrity of the entire election,” Trammell said. “The only way to give truly complete relief there is to say this regulation in its totality is unlawful and it doesn’t apply to anybody in this particular state.”

Court watchers said it wasn’t a surprise that the judges reviewing Trump’s birthright citizenship order called for national relief.

“I think it is wrong on the merits, but I think certainly that the Trump administration, and at least from a legal standpoint, had to anticipate that getting to the merit stage of this would be a much longer process” Amy Swearer, a senior legal fellow at the Heritage Foundation, said. “When you look at where they are right now with the Supreme Court, it’s still not the merit stage.”

Trump pushed the Supreme Court to limit the universal injunctions blocking his birthright citizenship order, only offering relief for two advocacy groups, seven individuals, and the 22 states. The Justice Department challenged the states’ standing, potentially limiting the injunction further.

Anyone who didn’t join the litigation, Swearer said, would have to file their own lawsuit.

“When their child is born, they would have to go and seek from the federal government a passport, a social security number, etc.,” Swearer said. “Once that is denied, well, now they have standing to sue. So at that point, they would be able to, if they wanted, to obtain their own injunction.”

Conchita Cruz, co-executive director of the Asylum Seeker Advocacy Project, one of the advocacy groups suing the administration, said the piecemeal solution wasn’t realistic. Beyond having the time and resources to file a lawsuit after giving birth, Cruz said not everyone who needs relief wants to be directly involved in litigation.

“So many pregnant women within our membership have stood up and said, ‘I do want to be part of this lawsuit,’ or, ‘I want to speak out to the media,’ but of course, there’s a lot of anxiety around being identified,” Cruz said.

Nicholas Katz, general counsel at CASA, another advocacy group in the litigation, said it would be irrational to prevent organizations such as his to stand up for the community they represent.

“Our members lead our organizations, and the idea that we can’t stand up for their rights in court is just patently absurd — in addition to being unworkable,” Katz said. “People come to us because they know we defend their rights, that’s why we’re bringing this case, and it’s incredibly important that we maintain that ability. It is a fundamental sort of principle of civil society and a foundation of how our legal system works that the government is seeking to challenge in the Supreme Court. So we feel very strongly that we need to defend it.”

While several justices have opined on the workability of universal injunctions in recent years, the high court has rejected multiple attempts to fully review their legality.

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.

The justices refused to take up the same question in a case involving the Corporate Transparency Act.

Steve Vladeck, a law professor at Georgetown University, wrote in a blog post that the case would have provided a less divisive forum to review the question. Vladeck wrote that taking up universal injunctions in the birthright citizenship case after denying previous opportunities would look really bad.

“‘I’m okay with universal injunctions when they’re blocking less controversial things, but not when they’re vindicating one of the most important constitutional rights,’ would be a message I can’t imagine this court wants to send,” Vladeck wrote.

The growing number of nationwide injunctions against the Trump administration also raises the stakes. According to the Justice Department, judges’ use of nationwide relief has reached “epidemic proportions” since the start of Trump’s second term.

Judges have issued 15 injunctions against the Trump administration in February alone. In comparison, the Biden administration faced 14 injunctions during its first three years.

The uptick of injunctions against the Trump administration may be more of a feature than a bug, however. Trammell said Trump is pushing the boundaries in ways other administrations haven’t.

“I don’t want to use such weighted language, but I think that [the administration is] more egregious violators of settled law and basic principles about how governments are supposed to respect citizens’ rights,” Trammel said. “So it doesn’t surprise me that the Trump administration is facing more universal injunctions. I do think that it heightens the urgency of resolving the legal question.”

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