This week, the Supreme Court will hear oral arguments in Trump v. Casa. Though the case is premised on Donald Trump’s attempt to end birthright citizenship, what’s really at stake, for right now, is how the administration is pushing federal judges to end nationwide injunctions — and with it, judges’ ability to put a check on the executive branch.
Over a century ago, the Supreme Court declared that under the Constitution’s 14th Amendment, being born within the nation’s borders conferred the “ancient and fundamental rule” of citizenship in that territory. But in January, Trump issued an executive order purporting to protect the “meaning and value of American citizenship” by ending citizenship for certain people born on U.S. soil.
Under the 14th Amendment, “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” For over a century, that has been understood simply, that barring some extremely limited exceptions — like children born to diplomats while they are in the U.S. representing their own country — any person born on U.S. soil is entitled to U.S. citizenship.
But Trump’s interpretation of the amendment is that it was never meant to grant automatic citizenship to everyone born in the U.S. His administration has reached this conclusion by focusing on a few key words in the amendment: “subject to the jurisdiction of.”
The same day he was inaugurated for his second term, Trump issued an executive order claiming children of undocumented immigrants are not citizens who are “subject to the jurisdiction” of U.S. laws. Specifically, the administration says the order covers children born in the U.S. to undocumented immigrants 30 days from Jan. 20, 2025, and this includes children of women who are in the U.S. “unlawfully;” children whose mothers are in the U.S. on a temporary but legal basis, like with a visa; and children whose fathers were “not a United States citizen or lawful permanent resident” when the child was born.
Judges presiding over legal challenges to Trump’s executive order have mostly eviscerated the president’s interpretation of the law. Three separate federal courts have so far put a hold on the order, preventing it from going into effect nationwide. (One federal judge in Maryland was painstakingly clear when issuing an injunction, writing that Trump’s executive order ran against the “plain language of the 14th Amendment, contradicts 125-year-old binding Supreme Court precedent and runs counter to our nation’s 250-year history of citizenship by birth.”)
“The United States Supreme Court has resoundingly rejected the president’s interpretation of the citizenship clause of the 14th Amendment. In fact, no court in the country has ever endorsed the president’s interpretation. This court will not be the first,” U.S. District Judge Deborah Boardman wrote.
Unable to convince the courts to shatter birthright citizenship, in March, the Trump administration rushed to the Supreme Court with a different approach: whether the judges even have the right to block it.
Acting Solicitor General Sarah Harris urged the Supreme Court not to tangle itself in the merits or constitutionality of Trump’s take on birthright citizenship but rather, she asked the justices to 1) stop the court’s injunctions from going into effect so they could apply Trump’s executive order only to the individuals or states who had sued over it, and 2) for the justices to declare that “enough is enough,” and block the issuance of nationwide injunctions that the government claims harm the Executive Branch and how it functions.
Rejecting limitations put on the government, and of nationwide injunctions, or an order from a district court that can bind the federal government broadly, is currently in fashion for the Republican Party.
In April, Democrats and Republicans on the Senate Judiciary Committee convened a hearing on nationwide injunctions after a series of bills were introduced by Republicans in the House seeking to restrict how the injunctions can be applied. Debate ensued over whether nationwide injunctions were attempts by the judiciary to usurp the executive branch’s power. But in the not-too-distant past, Republicans in Congress were enamored with nationwide injunctions, particularly when federal judges issued them in line with whatever their preferred political issue of the day might be.
But now, as the Trump administration struggles to secure clean victories from the courts on birthright, immigration, or how it’s dismantling the federal government, the tune from Republicans has changed.
“They are finding that the sauce for the gander is not their favorite sauce for the goose,” Michigan Law Professor Margo Schlanger said in an interview with HuffPost this week.
Nationwide injunctions can be seen as something that helps put checks on an unruly government, but they can also be seen as the end game for a plaintiff who is forum-shopping, or choosing a specific venue to sue in because that venue is likely to offer the most favorable ruling. And increasingly, they can be seen as necessary for people affected by laws, but who would otherwise be disenfranchised or unable to bring a lawsuit.
Gregory Chen, the senior director of government relations for the American Immigration Lawyer’s Association, told HuffPost in a recent interview that nationwide injunctions are necessary to give people full relief.
“If the court overrides or undoes the current nationwide injunctions against the Trump administration’s unconstitutional order [on birthright citizenship], it will bring chaos and disorder in the law on this core constitutional right on who is a citizen,” he added.
Scores of children across the country could be denied citizenship even if they are born here, losing access to the rights assured to citizens born on U.S. soil, which could create a vast disparity of the rights children may have in one state versus another.
“Different standards could apply state by state. We could have an injunction that could apply only within a limited narrow region but then it’s not applied to the rest of the country… people in some states could be protected, while others could be harmed immediately if the injunction is not allowed to stand,” Chen said.
Trump’s executive order on birthright citizenship is a legal long shot, and the sheer volume of rulings around birthright laws for over a century have decided that, both Schlanger and Chen agreed.
But by turning an unwinnable argument over birthright citizenship into a potentially winnable argument over nationwide injunctions, the administration can kill two birds with one stone: They can perpetuate doubt about constitutional principles and leave open the possibility for more damage later.
“If there’s no such thing as a national injunction, then a lot of people are going to have their rights stomped on, because there’s not going to be a procedural vehicle that allows the courts to address their rights in a common way,” Schlanger said. “We can see it in the Alien Enemies Act cases.”
Trump invoked the Alien Enemies Act in March and declared that individuals associated with the Venezuelan criminal gang Tren de Aragua were considered an “invading” force and could be removed by his decree. The order spurred a series of lawsuits from people who were detained, labeled gang members with scant to no evidence, and then were flown to CECOT, a notorious prison in El Salvador. U.S. District Judge James Boasberg put an injunction on deportations under the Alien Enemies Act, and in short order, the Supreme Court lifted it, saying that challenges to removal must be heard in the specific district that the person was detained in.
That case also showed the impact of requiring plaintiffs to litigate individual cases. Instead of being able to bring one legal challenge and have it applied to everyone it affects, civil rights organizations, like the American Civil Liberties Union who have been fighting against the deportations, are required to bring an individual habeas petition for each individual threatened with removal — which works out to hundreds and hundreds of petitions.
Maybe with “enough lawyers, labor and attention,” Schlanger said, “it’s possible to litigate hard enough to surmount a procedural obstacle.” But that labor and attention, not to mention legal expertise, is simply not available to everyone.
“It’s like a tax on the assertion of rights. Like a really, really heavy tax,” she added. “The question of due process is what process is due.”
“If the Trump administration were not so gung-ho on moving fast and breaking stuff, if they were moving more deliberately, if they were taking more care, then the situation wouldn’t be as difficult, but because that is how they’re moving, that means the need for national injunctions to safeguard people’s rights is really very high,” she said.
When it comes to Trump’s birthright citizenship order, Schlanger said she thinks the Trump administration is “interested in creating a permanent underclass.”
“That’s what doing away with birthright citizenship would do. It creates a permanent set of people who — not just for their lifetimes, but for their children and presumably their children’s children and on and on — those folks don’t get full American status. I think the Trump administration is very interested in doing that and they think that is a good state of affairs,” she said.
Chen believes the administration’s aim is to infuse the “social media sphere” and the court of public opinion with doubt. Look at how Trump tried to convince people that former President Barack Obama was not born in the U.S., he said, simply by repeating the baseless claim over and over.
“Even though that was totally specious, just by putting out claims that are not based on legal fact is how they undermine public confidence in a concept,” he said.
If the administration was genuinely interested in fixing the nation’s immigration system in a way that would reflect not just the founder’s goals but the values and needs of businesses, families, then they would be focused on improving or expanding access to legal pathways to citizenship, not shrinking them, Chen said.
Right now, immigration courts are severely backlogged by about 4 million cases, and cases can take years to resolve. Visa application processes through U.S. Citizenship and Immigration Service aren’t much better, and that means those systems need attention, rules and efficient adjudication in the courts, Chen said.
But the aim for the administration seems only to be to “block, exclude, intimidate, frighten or scare immigrants into leaving this country,” Chen said.
And unless the Supreme Court upholds the nationwide injunctions, he fears the next step for those immigrants is inevitable: their continued targeted harassment.