The Trump administration can deny U.S. citizenship to some children born in the United States, the Supreme Court announced today. The Court’s six rightwing justices decided that lower federal courts were wrong to block President Donald Trump’s birthright citizenship executive order from taking effect anywhere in the United States against anyone. Lower courts can only stop Executive Branch officials from implementing illegal policies against people or groups who sue the federal government, the majority explained.
In January, Trump directed federal agencies to deny U.S. citizenship claims made by or on behalf of children whose mothers were living in the United States lawfully under a temporary visa or without the federal government’s permission. Until Trump issued his executive order, almost everyone born in the United States for more than 100 years has been treated as a U.S. citizen. The Court’s majority did not weigh in on the legality of Trump’s interpretation of the U.S. Constitution’s Fourteenth Amendment.
Today’s decision focused on the power that federal judges have to block illegal actions by the president or Executive Branch agencies. Multiple courts had barred executive officials from applying Trump’s order against anyone anywhere in the United States. Courts don’t have the power to issue a universal injunction, as this legal order is called, Justice Amy Coney Barrett wrote on behalf of the Court’s rightwing contingent. At most, a court can stop the Executive from implementing an illegal policy against whoever sued it. The three liberal justices, all of whom dissented, argued that federal courts have long had the power to issue broad injunctions.
To support their positions, both ends of the Court’s ideological spectrum revisit the past. Indeed, Justice Sonia Sotomayor’s dissenting opinion, which Justices Elena Kagan and Ketanji Brown Jackson joined, disagrees with the majority’s understanding of some of the same historical texts. Both opinions, for example, find support in Joseph Story’s influential Commentaries on Equity Pleadings. At 900 pages, it’s not difficult to pull useful quotations from Story’s tome. In a section that no justice cites, Story writes, “The Courts of Equity ought to adapt their practice and course of proceedings, as far as possible, to the actual state of society; and not, by too strict an adherence to forms and rules established under very different circumstances, decline to administer and enforce rights, for which there is no other remedy.”
Starting thirty days from now, when the Supreme Court’s decision goes into effect, federal courts will have to find out whether another remedy exists. The states, individuals, and organizations that have already sued the Trump administration will soon return to federal district courts to develop their arguments against the president’s novel interpretation of the Fourteenth Amendment. Other parents of children impacted by the president’s directive are sure to challenge the executive order collectively through class-action lawsuits.
By stripping lower courts of the power to issue universal injunctions, the majority made it much less likely that Trump’s birthright citizenship order returns to the Supreme Court. Lower courts are likely to agree that the federal government can’t enforce Trump’s order against children whose parents sue. There is no good reason for the Trump administration to appeal those individual losses since they would lose in most federal appellate courts. Even the Supreme Court justices didn’t appear sympathetic in the few references to the executive order that appeared during oral arguments in May. Successful parties can’t appeal, so victories for individual people would remain the exception in a nationwide sea of illegality. The administration could go on applying its unconstitutional vision of the U.S. Constitution until told to stop doing so against specific people.
Democratic-led states have already entered the fray and are sure to reiterate their legal challenge. States can sometimes sue on behalf of their residents to try to stop the federal government from engaging in illegal activity, but the Justice Department will contest their legal right to do so—called standing—over birthright citizenship because the president’s order doesn’t affect the states’ citizenship. Even if states do have standing, as courts have already held, today’s decision threatens injunctions that apply beyond the borders of the states that sue the federal government. That would have the effect of creating two forms of constitutional citizenship. Children born in blue states that sue will be treated as U.S. citizens, but children born in red states that don’t sue will be treated as not U.S. citizens – presumably as unauthorized migrants subject to deportation.
Today’s decision positions the Trump administration to lose on the constitutionality of birthright citizenship but win on excluding people from citizenship. The majority of justices appear to have thought of this, but claim their hands are tied to do anything about it. “No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so,” Barrett wrote. If the courts can’t force the Executive Branch to follow the law, who can?
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