President Trump might accuse Sen. Adam Schiff (D-Calif.) of being “shifty,” but he has no shortage of head-spinning shifts himself.
In a speech at the United Nations last month, Trump reversed himself, saying that Ukraine could win back all its territory by military means. He also encouraged NATO allies to shoot down Russian aircraft if they entered its airspace.
No more pressuring Ukraine to give up land to strike a peace deal with Russia. He declared that with the support of Europe, Ukraine’s army was “in a position to fight and win all of Ukraine back in its original form.”
There is reason to believe Trump may also be pivoting on his unconstitutional executive order limiting birthright citizenship. He has uniformly lost on the issue in lower federal courts.
On June 27, the Supreme Court, without deciding the dispute, limited the use of the nationwide injunction to enforce the plain meaning of the Constitution that those born “in the United States … are citizens.”
Trump’s executive order, despite the high court ruling, has been throttled by lower court rulings depriving him of the “giant win” he bragged about in June.
Meanwhile, he has been content to abide by these determinations. The president has made 28 shadow docket applications to the Supreme Court in less than eight months.
The unreported headline is that the administration is not seeking emergency relief in most of the cases in which it is losing in the lower courts. And although there are certainly some brief instances of defiance, it has largely complied with lower court rulings.
The birthright citizenship cases are a poster child for what appears to be happening. On June 27 in CASA, Inc. v. Trump, the Supreme Court partially stayed three different “universal” injunctions against Trump’s executive order.
The ruling left the preliminary injunctions against the order in place for the plaintiffs in those three cases — but for nobody else. And so, the lurking undecided question was whether the order would ever go into effect to benefit the affected the non-parties, who numbered in the thousands.
In CASA, filed in Maryland, after the Fourth Circuit returned the case to the district court, the judge granted the plaintiffs’ motion to certify a nationwide class action on behalf of any child whose citizenship would be affected by the executive order and entered a nationwide preliminary injunction on behalf of the class.
Although the government might have taken an immediate interlocutory appeal to the Fourth Circuit, it did not appeal either the preliminary injunction or the class certification decision.
In Washington v. Trump, on July 23, a divided panel of the Ninth Circuit affirmed again the district court’s injunction, taking up Justice Amy Coney Barrett’s suggestion in CASA that a universal injunction that benefits non-parties to the case is okay if necessary to provide “complete relief” to the state plaintiffs.
The government did not seek rehearing en banc from the full Ninth Circuit; nor has it otherwise sought a stay of the ruling. The time to go to the Supreme Court expires on Oct. 21, and my bet is that the government will not appeal.
In Trump v. New Jersey, the district court channeled the Ninth Circuit, holding that a “universal” injunction is okay if necessary to provide the plaintiffs with “complete” relief. That reinstated its nationwide preliminary injunction against the executive order.
As in the Maryland case, the government is dragging its feet to defend the lawsuit with its answer currently due in less than a month’s time.
A fourth case which did not go to the Supreme Court,is Barbara v. Trump, filed in New Hampshire. There, the district court certified a “provisional” nationwide class of everyone aggrieved by Trump’s executive order and granted preliminary injunctive relief to them.
The government waited until Sept. 5, almost the last day, to appeal to the First Circuit. And it has yet to file anything anywhere seeking either a stay or expedited review. It’s the limpest response imaginable in a case so important to the Trump White House, unless the administration is preparing to throw in the towel.
There is no other explanation for the government’s fancy footwork, other than it believes it is going to lose. Surely, given how successful the government has been at obtaining instant shadow docket relief from the Supreme Court, its decision to seek neither is astonishing.
It is still early. But reading the tea leaves, CASA may not be the disaster the law professoriate fears.
For now, if you were born in the U.S., you are an American citizen and are entitled to all the benefits of national citizenship, full stop. No plausible interpretation of the Constitution would suggest any other conclusion. And this is true even if your parents were born elsewhere and came here illegally.
Nothing the Supreme Court has said is to the contrary. For now, the court has only made it harder for you to vindicate your constitutional rights. And Trump may well go wobbly on birthright citizenship. After all, he pivoted on Ukraine.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.