Trump Administration Asks Supreme Court to Lift Universal Injunctions Against its Bitrthright Citzenship Order

Four different federal courts have issued rulings blocking Donald Trump’s executive order denying birthright citizenship to children of undocumented immigrants and immigrants in the US on the temporary visas. Three of them have issued nationwide injunctions, blocking enforcement of the the order throughout the country. The Trump Administration has filed nearly identical emergency applications asking the Supreme Court to intervene in all three cases (see here, here, and here): not to overturn them on the merits, but to narrow the scope of the injunctions so they apply only to specific parties in the case, and also exclude state governments, who are among the plaintiffs (they have standing because the order affects their public finances).

There is a longstanding debate among jurists and legal scholars about whether nationwide injunctions (also often called “universal injunctions”) are appropriate. If you oppose nationwide injunctions on principle, I don’t expect you will make an exception in these cases. While I am admittedly not an expert on the subject, I have always held the view that nationwide injunctions are not only permissible but essential in some situations. Nationwide lawbreaking by the federal government requires a nationwide remedy. And that’s especially true if the illegality affects the rights of large numbers of people, many of whom could not easily or quickly bring individual suits to challenge it. Justice delayed – in some cases indefinitely – is justice denied.

The case for nationwide injunctions is also strong in situations where the resolution of the issue in question doesn’t depend on variations in circumstances across states and localities. If the government’s actions are illegal in the same way across the nation, then the best way to get justice is to strike it down everywhere at once.  University of Virginia law Prof. Amanda Frost develops this point in much greater detail in her well-known 2018 article on this subject. As she summarizes her position:

In some cases, nationwide injunctions are the only means to provide plaintiffs with complete relief, or to prevent harm to thousands of individuals similarly situated to the plaintiffs who cannot quickly bring their own cases before the courts. And sometimes anything short of a nationwide injunction would be impossible to administer. When a district court is asked to pass on the validity of a federal policy with nationwide effects—such as one affecting the air or water, or the nation’s immigration policy—it can be extremely difficult to enjoin application of the policy to some plaintiffs but not others. Furthermore, nothing in the Constitution’s text or structure bars federal courts from issuing a remedy that extends beyond the parties. To the contrary, such injunctions enable federal courts to play their essential role as a check on the political branches. Indeed, the recent surge in nationwide injunctions could be seen as a symptom of the real problem—the executive branch’s increasingly common practice of unilaterally making major policy changes outside of the legislative process.

I agree. And I am not much moved by the opposing concern that one overreaching district judge can unjustifiably block a federal policy. If the judge’s ruling is indeed badly wrong, it can be overturned on appeal, if necessary on an expedited basis. It is much less of a burden for the government to seek such appellate review than for many thousands of people to have to file individual lawsuits to vindicate their rights.

And the birthright citizenship cases are virtually textbook examples of Frost’s points. Trump’s executive order imperils the rights of hundreds of thousands of innocent children. Many of their families lack the resources to bring a lawsuit quickly, if at all. And a situation where the order is in force for some people, but not others (or, alternatively, in some states but not others), creates obvious confusion and anomalies, especially when it comes to a policy (citizenship rules) that is supposed to be uniform throughout the nation. As one of the rulings imposing a nationwide injunction explains:

Only a nationwide injunction will provide complete relief to the plaintiffs. ASAP [one of te plaintiff organizations] has “over 680,000 members . . . who reside in all 50 U.S. states and several U.S. territories.”… ASAP expects that “[h]undreds or even thousands of ASAP members will give birth to children in the United States over the coming weeks and months….” Because ASAP’s members reside in every state and hundreds of them expect to give birth soon, a nationwide injunction is the only way “to provide complete relief” to them….).

Further, “a nationwide injunction may be appropriate when the government relies on a
‘categorical policy…’” See HIAS, 985 F.3d at 326. The Executive Order is a categorical policy. A nationwide injunction against the categorical policy in the Executive Order is appropriate. It also is necessary because the policy concerns citizenship—a national concern that demands a uniform policy. See Arizona v. United States, 567 U.S. 387, 394–95 (2012)….. A nationwide injunction is appropriate and necessary.

I would add that an injunction limited to a particular state or set of states would result in a situation where many children are considered US citizens in some states, but not others.

If the Supreme Court wants to put an end to nationwide injunctions generally, they can do so. But if not, there are extraordinarily compelling reasons to maintain the injunctions in these cases.

I have written about the substantive issues at stake in the birthright citizenship cases in a Just Security article, and several previous posts at this site (see here, here, and here).

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