The Supreme Court on May 15 grappled with how far federal judges could go in issuing sweeping blocks on policies such as President Donald Trump’s order restricting birthright citizenship.
Their comments came during oral argument over the administration’s request that the high court remove three nationwide injunctions on Trump’s order.
Those nationwide blocks are among the many issued by federal judges that have halted a range of Trump administration policies.
U.S. Solicitor General D. John Sauer, who argued for the Trump administration, told the justices that nationwide injunctions had been used in ways that exceeded judges’ authority under Article III of the Constitution. More specifically, he and others have criticized nationwide injunctions for granting relief on a broad basis rather than just for the parties before the court.
Some of the justices, however, expressed concern about how other people purportedly harmed by Trump’s policy would get relief without a nationwide block.
At least two justices—Justices Elena Kagan and Sonia Sotomayor—indicated that they believed Trump’s order limiting birthright citizenship breached the 14th Amendment and that large numbers of people were therefore harmed by it.
The hearing was unusual in that it focused less on legal arguments on whether Trump’s birthright citizenship policy runs afoul of the 14th Amendment and instead concentrated on the legality of the practice of nationwide injunctions. More in-depth questions about birthright citizenship and the 14th Amendment will continue playing out in the court system.
Later, Kagan suggested to Sauer that the administration would continue to lose in defending its policy before lower courts. She asked what incentive the government would have to appeal the case to the Supreme Court if another judge hadn’t issued a nationwide injunction.
“If I were in your shoes, there is no way I'd approach the Supreme Court with this case, so you just keep on losing in the lower courts, and what’s supposed to happen to prevent that?” she asked.
Following some intense questioning from Kagan, Justice Neil Gorsuch said she asked questions better than he could. Both of them seemed concerned that without nationwide injunctions, those affected by the order would have to undergo a lengthy legal process to get relief.
Chief Justice John Roberts seemed to push back on this point, saying that the Supreme Court had intervened quickly in previous cases, suggesting it could provide quick relief in the future.
Sotomayor seemed the most critical of the administration’s position, peppering Sauer with questions and telling him that she thought Trump’s order violated four Supreme Court precedents.
Arguing against the administration was New Jersey Solicitor General Jeremy Feigenbaum, who said that the United States has had some kind of nationwide relief since its founding.
Feigenbaum told the justices that without broader relief, some people in the United States wouldn’t receive Social Security numbers. That would make administering government benefits more difficult for individual states, he argued.
The justice who seemed most sympathetic to the administration’s arguments was Justice Clarence Thomas, who asked Sauer about the historical use of nationwide injunctions and suggested that the country had “survived” without them until the 1960s.
While speaking with Feigenbaum, Justice Samuel Alito also expressed concern that there were so many district court judges who could incorrectly issue a nationwide injunction.
It’s unclear how the justices will rule and whether the eventual opinion will allow some form of nationwide block on policies. Much of the justices’ questioning focused on the practicality of blocking a policy without nationwide injunctions.
Alito questioned the point of challenging nationwide injunctions if a similarly broad block could be obtained through a class action including people across the country.
Echoing Alito, Barrett asked, “Why does the government care?” For the sake of argument, she also told Sauer to assume that the federal government was unable to successfully challenge class action in the birthright cases.
Justice Ketanji Brown Jackson expressed concern that Sauer’s view of how the cases should proceed would force everyone harmed by a policy to hire a lawyer.
She added that she didn’t see how that was “remotely consistent” with the rule of law. Sauer’s view, she suggested, would also create a “catch-me-if-you-can” version of the justice system.
