5 Takeaway from a Supreme Court hearing on a national injunction, birthright citizenship

On May 15, the Supreme Court heard oral debate in connection with the Trump administration’s request to lift a nationwide injunction imposed on the president’s birthright citizenship order.

This decision can determine how a judge can deal with the president’s actions.

During the discussion, the judge raised a question about how far a lower court judge can go from issuing relief from certain policies.

Attorney General D. John Sauer told the court that the national injunction under Section 3 of the Constitution exceeds the authority of a judge.

Supreme Court members have criticised national injunctions in the past, but they appeared skeptical that it would be appropriate to remove the injunction in this case.

President Donald Trump’s Executive Order 14160, signed on January 20, stated that “the 14th Amendment has never been interpreted as a universal extension of citizenship to all born within the United States.”

Here are some takeaways from the discussion and considerations surrounding the Supreme Court decision.

1. No final ruling is expected in the Constitution

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The argument comes from an urgent request that the Trump administration limit three separate injunctions that block the president’s birthright citizenship order.

In this early stage of the lawsuit, judges wrested more with procedural considerations such as the scope of relief rather than the constitutionality of the birthright citizenship of illegal immigrants.

However, judges can still consider the possibility that each side will succeed in debating more substantive issues. This issue could reach the Supreme Court again after further deliberation in the lower court, teasing the opportunity for the judiciary to make a more definitive judgment on birthright citizenship.

Sauer may have asked the Supreme Court to dig deeper into constitutional issues, but he did not. Judge Amy Connie Barrett pushed him in this regard, asking why he wanted more consideration from the lower court before the judge took on the matter.

“So, isn’t this clear about merit?” she asked.

Judge Ketanji Brown Jackson said that if Trump’s orders are legally wrong, it is inconsistent with the rule of law for the administration to continue to implement them.

“Your argument seems to say that everyone who could be harmed by it can continue doing that until they understand how to file a lawsuit, hire an attorney, and more,” she said. “And I don’t understand how it is remotely consistent with the rule of law.”

2. Several judges critical of Trump’s order

During the May 15 debate, Justices Sonia Sotomayor and Elena Kagan appear to believe the administration misinterpreted the 14th Amendment when they ordered the children of illegal immigrants who received birthright citizenship to be suspended.

“From what I can see, this order violates four Supreme Court precedents,” Sotomayor told Sauer.

Kagan then suggested to Sauer that the administration would continue to lose in front of lower courts to protect its policies. She had asked what incentive the government must appeal the case to the Supreme Court if another judge did not issue a national injunction.

“If I were wearing your shoes, there’s no way to get close to the Supreme Court in this case, so you just keep losing in the lower court and what will happen to prevent that?” she asked.

3. Disputes over the historical authority of the courts

Judge Clarence Thomas appears to be most sympathetic to Sauer’s position, suggesting that the national injunction does not have solid historical basis.

Sauer had argued that the first national injunction was issued in 1963, and the courts consistently said that relief should be limited to plaintiffs.

“So did we survive until the 1960s without a universal injunction?” asked Thomas.

Meanwhile, Sotomayor asked General Jeremy Fagenbaum, a New Jersey lawyer.

Both justices asked about the history of the courts that issue an order known as the “peace bill” that resolves multiple parties’ disputes. Sauer explained that the practice is similar to modern collective action and is different from a national injunction. Sotomayor opposed the comparison.

4. An alternative to a nationwide injunction?

Judge Brett Kavanaugh suggested that class actions or cases could be placed in a nationwide injunction in which multiple plaintiffs are sued on behalf of a larger group of plaintiffs.

In this case, if a national injunction is not available, people can file a class action lawsuit, which “may resolve the majority of the issue in a way that complies with the rules,” Justice said.

Kelsi Kolklan, an attorney for immigration advocacy group, disagreed, saying that such an approach “will only lead the problem through a different mechanism.”

Kagan said the litigator in the case state New Jersey could face “administrative costs and … labor potential issues” as a result of the issuance of a court decision that would not be issued in different states on issues of citizenship.

This could also lead to a “magnet problem,” Kagan said, as “everyone moves to a state where there are more favorable rules.”

5. Difficulties associated with sueing for birthright citizenship

Jackson said the government’s proposal to cut national injunctions would make it more difficult for people to sue them to prove their rights.

“Your argument seems to have come to ‘catch me if you can’t’ … Everyone has to have a lawyer and file a lawsuit to stop the government from violating people’s rights,” she said.

Sauer disagreed, saying the current situation is, “If there’s a problem, then “catch me” issue means that the government must compete with jurisdiction from jurisdiction and clear the table to implement the new policy.”

“Many of us have expressed dissatisfaction with the way the district courts do their business,” Kagan said.

The current system encourages forum shopping, she said, refers to plaintiffs who have chosen to file cases in jurisdiction where judges consider sympathy for their case.

During the first Trump administration, litigants sought a favorable ruling by filing in courts recognized as friendly in San Francisco, but in the subsequent Biden administration, litigators filed in Texas said.

“There’s a big problem created by that mechanism,” she said.