On Friday, the Supreme Court partially restrained lower courts’ ability to put nationwide pauses on presidential executive orders, but left in question the fate of President Trump’s efforts to restrict birthright citizenship. Photo by Francis Chung/POLITICO via AP Images

Business & Law

BU Legal Scholars Assess Supreme Court Ruling Limiting Nationwide Injunctions

Justices defer decision on the constitutionality of effort to end birthright citizenship

The Supreme Court Friday handed President Trump a partial victory over birthright citizenship, ruling 6-3 along ideological lines that federal district court judges have only limited power to block presidential executive orders nationally. The court said it was not addressing directly the constitutionality of Trump’s order to rescind citizenship for children of undocumented immigrants and those here on temporary visas, and that issue could be decided in the court’s next term, beginning in October.

The Trump order, Associate Justice Amy Coney Barrett wrote for the majority, may take effect 30 days after Friday’s ruling in the 28 states that have not challenged it. She added that nationwide injunctions “likely exceed the equitable authority that Congress has granted to federal courts.” Four federal judges had paused Trump’s order as it made its way to the high court; one called it “blatantly unconstitutional.”

Barrett wrote that SCOTUS was stopping nationwide injunctions by judges “only to the extent that the injunctions are broader than necessary to provide complete relief with respect to each plaintiff with standing to sue” over the executive order. She said lower courts should ensure that any injunctions they impose “comport with this rule and otherwise comply with principles of equity.”

Barrett and the court’s dissenters waged a dustup in their opinions, with Associate Justice Ketanji Brown Jackson (Hon.’23) writing, “The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.” Barrett’s retort: “Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”

Birthright citizenship—government recognition that anyone born in the United States is an American citizen—is granted by the post–Civil War Fourteenth Amendment. The Trump administration argued that its executive order “reflects the original meaning” of the Amendment, whose drafters intended that it apply only to children of formerly enslaved African Americans. After the high court’s ruling, the president posted “GIANT WIN” on social media.

BU Today asked Boston University School of Law experts these questions: how big a change will the decision impose on federal courts’ ability to curb a president’s actions, and does it offer any tea leaves for how SCOTUS might rule on birthright citizenship’s constitutionality?

The answers have been edited for brevity.

Jessica Silbey, School of Law professor of law and associate dean for intellectual life

This decision deals a major blow to a federal court’s ability to curb a president’s actions. It requires getting to the Supreme Court on the merits of the dispute, which could take years and never happen, because the Supreme Court does not have to take any case it doesn’t want to. Nationwide injunctions have become more common over the past several decades. But that is largely because of a stymied political process in Congress, which has pushed policy changes to the executive branch through executive order. In a system that balances powers between the three branches of government and among the states, when one branch is “broken” (Congress) and another is unwilling to check the other branches, what is left is an unaccountable federal executive.

After this decision, the children and the states seeking relief from the executive order [must] file class actions—the children—and seek third party standing—the states. Those routes have stringent requirements. Both doctrines have been eroded over the years. The doors to courthouses have been slowly closing for plaintiffs seeking relief in these avenues.

What I see in this decision is the court’s attempt to buy time, through procedural mechanisms, to avoid deciding a question that it would rather see decided by the political process. This is cowardly, in my view. It is not an example of judicial humility, which is what the majority seems to say. To say this court is humble is laughable. It has issued some of the most brazen and game-changing rulings over the past few years, overturning settled precedent and importing fringe theories to constitutional law to lead a constitutional revolution.

Buying time to avoid a contentious issue defies the job of the judge to interpret the Constitution. We know the reasons this [birthright] provision was put into the Constitution, and we know how it has been uniformly and uncontroversially applied since its adoption in 1868. By sending the case back to the district courts for a narrower remedy, I think—I hope!-—there is a narrow majority on the court that will uphold birthright citizenship, yet they don’t want to appear fractured on an issue of such monumental consequence. It could also mean there is a narrow majority to read that clause another way. What way could it be? Hard to even put it into words without sounding ridiculous and, frankly, anti-American—and again, the court led by John Roberts, who eschews controversy while ironically leading a judicial revolution under his watch, wants to avoid looking fractured and divided along an issue that so deeply touches all of us: what it means to be a citizen.

Robert Tsai, LAW professor of law and Harry Elwood Warren Memorial Scholar

[The minority liberal justices] tip their hand pretty convincingly that they think the executive order is unconstitutional. [Associate Justice Sonia] Sotomayor says birthright citizenship is clear and has been established since Reconstruction. Whereas the liberals have tipped their hands, I don’t think the conservatives have. The ruling just takes aim at universal injunctions that block an executive order for anybody who might be affected by it nationwide. The majority says that despite the fact there are probably over 100 universal injunctions [from the past], those are not historically grounded and therefore not authorized by federal law.

We’re going to have a delay of possibly some months, as the lower courts will have to try to limit their injunctions in some way, and then we’ll get a merits decision [from the high court on the executive order] next term. Clearly, the Supreme Court’s not ready to take up the merits yet. Maybe they don’t think they can reach a consensus yet. So they’re buying time.

Speaking historically, we’ve seen the court engage in strategies of delay before, when they’re feeling inundated. We have a populist president who’s doing a lot of things that are being challenged [in courts]. It doesn’t surprise me that the Supreme Court would want to duck.

What the ruling really does do is stop these nationwide injunctions. Everyone who’s affected [by the executive order] is going to have to bring their own cases, based on their own interests. Say that Trump doesn’t want to give up his understanding of the Fourteenth Amendment. Anyone affected will have to litigate on a piecemeal basis.

Jed Shugerman, LAW professor of law and Joseph Lipsitt Scholar. Shugerman filed an amicus brief in lower courts supporting birthright citizenship, based on a paper he wrote.

The bottom line for me:

1. The Roberts Court once again changed the rules to benefit the Trump administration’s rushed policies of extreme executive power, despite the administration’s disregard of long-standing precedent and court orders. These cases are on the emergency docket, aka the “shadow” or “lightning” docket. If the Roberts Court were troubled by the speed and lawlessness of the Trump administration, and if it wanted to defend the rule of law in this context, it should have let lower court rulings stand until the cases are fully litigated below.

2. The court ruled that national injunctions are the wrong process because they are not “originally” grounded in processes and remedies available in 1787-1789, but the right process would be class actions—a plaintiff or a small group of plaintiffs standing in for a broader class of similarly situated individuals. In theory, one individual could bring a class action for birthright citizenship, as a general rule. The problem is that the Rehnquist Court to the Roberts Court have made class actions increasingly difficult. When asked, Trump’s solicitor general explicitly gave the Roberts Court examples of how they would oppose the “certification” of a class with factual distinctions about how the class is not similarly situated. Even though I’m sure the plaintiffs can find a district court to grant a class certification, the Trump administration can appeal, and after one shocker after another, I am not confident that this Supreme Court would enforce those court orders based on class certification either.

3. I do see big-picture tea leaves that worry me: if the Roberts Court keeps giving the Trump administration these wins despite its recklessness about precedents and defiance of court orders, I think those are the tea leaves of lawlessness that worry me. And the Trump administration is reading those tea leaves as a green light to keep up the reckless defiance of the rule of law, to mix metaphors.