Editor’s Note: This article was originally published on SCOTUSblog, which was acquired by The Dispatch in April. To get all of SCOTUSblog’s coverage of the Supreme Court term, be sure to sign up here.
The Supreme Court on Friday granted the Trump administration’s request to partially pause rulings by three federal judges that had blocked President Donald Trump’s executive order ending birthright citizenship—that is, the guarantee of citizenship to virtually anyone born in the United States. By a vote of 6-3, the justices repudiated the concept of universal or nationwide injunctions, which prohibit the government from enforcing a law or policy anywhere in the country. The justices did not, however, weigh in on the question at the center of the three lawsuits before the court: whether the birthright citizenship order itself is constitutional.
The Trump administration will also likely continue to be barred from enforcing the order—which will not go into effect for 30 days—against the individual pregnant plaintiffs who had challenged it. But the court’s opinion, by Justice Amy Coney Barrett, left open the prospect of additional litigation in the lower courts about how much more the injunctions should be narrowed, as well as the possibility of class action litigation to challenge the order on behalf of groups of plaintiffs who were not part of the litigation before the court but would be affected by the order.
Barrett acknowledged arguments that “the universal injunction ‘give[s] the Judiciary a powerful tool to check the Executive Branch.’ But federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them,” she emphasized. “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”
Justice Sonia Sotomayor dissented, in an opinion that she read from the bench—a signal of her strong disagreement with the majority’s ruling. She stated that the majority had ruled that, “absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.”
Trump issued the executive order ending birthright citizenship on Jan. 20, shortly after he was sworn into office for his second term. Beginning in 30 days, the order provided, babies born in the United States would not be automatically entitled to citizenship if their parents were in the U.S. either illegally or temporarily.
Trump’s order spawned multiple challenges in federal courts around the country, including in Washington, Maryland, and Massachusetts. The challengers contended that the order violates the Constitution’s 14th Amendment, which provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The 14th Amendment was added to the Constitution in 1868 to overrule one of the Supreme Court’s most infamous decisions, its 1857 ruling in Dred Scott v. Sandford. In that case, the Supreme Court—by a vote of 7-2—ruled that a Black person whose ancestors had been brought to this country and sold as enslaved persons was not entitled to any protection from the federal courts because he was not a U.S. citizen.
In 1898, the Supreme Court ruled in favor of Wong Kim Ark, who was born in California to parents of Chinese descent. By a vote of 6-2, the court rejected the government’s argument that Wong was not a U.S. citizen, with Justice Horace Gray explaining that the 14th Amendment—although enacted to establish the citizenship of Black people—“affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.”
Senior U.S. District Judge John Coughenour, a Ronald Reagan appointee, agreed with one group of challengers—the states of Washington, Arizona, Illinois, and Oregon—that the executive order was “blatantly unconstitutional,” and he temporarily blocked the Trump administration from enforcing the order anywhere in the country. Two other judges—U.S. District Judge Deborah Boardman in Maryland and U.S. District Judge Leo Sorokin in Massachusetts—issued similar orders.
In March, then-Acting Solicitor General Sarah Harris came to the Supreme Court, asking the justices to strictly limit the scope of the orders issued by the three judges. She contended that the kind of nationwide injunctions issued in these cases “transgress constitutional limits on courts’ powers” and “compromise the Executive Branch’s ability to carry out its functions.” The Supreme Court, she said, “should declare that enough is enough before district courts’ burgeoning reliance on universal injunctions becomes further entrenched.”
The challengers—which also include a second group of states, immigrants’ rights groups, and several pregnant women—urged the justices to leave the orders in place. “Being directed to follow the law as it has been universally understood for over 125 years is not an emergency warranting the extraordinary remedy of a stay,” Washington Solicitor General Noah Purcell wrote—particularly when, as the brief filed by a group of states and local governments, led by New Jersey, added, the Trump administration has not challenged the district courts’ conclusion that the executive order is likely unconstitutional.
The Supreme Court announced on April 17 that it would hear arguments in the dispute on May 15, just over two weeks after its regular argument schedule for the 2024-25 term had ended.
In her 26-page opinion for the majority, Barrett stressed that courts would have the power to issue universal injunctions only if courts had provided similar remedies in early English and U.S. history. But there is no such history, Barrett concluded. Indeed, she noted, “universal injunctions were not a feature of federal-court litigation until sometime in the 20th century,” and they “remained rare until the turn of the 21st century.”
Barrett also pushed back against the suggestion that the district courts issued the universal injunctions in this case to provide the challengers with complete relief. Although the principle of complete relief is an important one, she recognized, it is a “narrower concept” than a universal injunction, and it focuses on the idea of providing “complete relief between the parties” in a particular case.
In this case, Barrett wrote, “prohibiting enforcement of the Executive Order against the child of an individual pregnant plaintiff will give that plaintiff complete relief: Her child will not be denied citizenship. Extending the injunction to cover all other similarly situated individuals would not render her relief any more complete.”
The court did not decide whether the district courts’ injunctions should be narrower for the states challenging the executive order, and instead left it to the “lower courts [to] determine whether a narrower injunction is appropriate.” The states had argued, Barrett noted, that a universal injunction was necessary to give the states complete relief because of, for example, the likelihood that residents will move from one state to another or be born in a different state from their parents’ residence. Otherwise, the states contended, they would have to “track and verify the immigration status of the parents of every child, along with the birth State of every child for whom they provide certain federally funded benefits” that are contingent on U.S. citizenship.
Justice Clarence Thomas, long a critic of nationwide injunctions, filed a concurring opinion that was joined by Justice Neil Gorsuch. He agreed with the majority’s conclusion that federal judges lack the power to issue such injunctions. And he emphasized that although courts can generally provide complete relief between the parties, courts can only do so within the limits that they have traditionally observed—which may mean that “a court cannot award complete relief.”
Justice Samuel Alito wrote a concurring opinion that Thomas joined. He noted that the court had not ruled on what he characterized as the “weighty issue” of whether the states have a legal right to bring a lawsuit to assert claims on behalf of their residents. He also added that Friday’s ruling “will have very little value” if district courts do not adhere strictly to the federal rules governing when class actions can go forward. “Lax enforcement of the requirements for third-party standing and class certification would create a potentially significant loophole to today’s decision,” Alito concluded.
Justice Brett Kavanaugh also wrote a concurring opinion in which he stressed that although this case focuses on a district judge’s power to block federal laws or executive actions, the courts of appeals and the Supreme Court will inevitably weigh in on district court decisions granting or denying requests for preliminary injunctions, in whatever form they might take after Friday’s ruling. And in particular, he wrote, when the Supreme Court is asked to intervene, “this Court should not and cannot hide in the tall grass. When we receive such an application, we must grant or deny”—and the court’s decision, he added, “will often” serve as “guidance throughout the United States” until the issue is finally resolved.
Sotomayor’s dissent noted that every court that has reviewed Trump’s executive order “has deemed it patently unconstitutional.” And that “patent unlawfulness,” she argued, shows why universal injunctions should be available in a case like this one. “By stripping all federal courts, including itself, of” the power to grant universal relief, she wrote, “the Court kneecaps the Judiciary’s authority to stop the Executive from enforcing even the most unconstitutional policies.”
Sotomayor also detailed what she saw as the practical effects of the court’s ruling, writing that “newborns subject to the Citizenship Order will face the gravest harms imaginable.” “Affected children,” she warned, “also risk losing the chance to participate in American society altogether, unless their parents have sufficient resources to file individual suits or successfully challenge the Citizenship Order in removal proceedings.”
Sotomayor emphasized that class actions remain available as a tool to “provide broad relief to individuals subject to lawless Government conduct.” And she observed that “the parents of children covered by the Citizenship Order would be well advised to file promptly class-action suits and to request temporary injunctive relief” until a class is certified.
Justice Ketanji Brown Jackson filed a separate dissent in which she contended that the majority’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.” She criticized the majority’s focus on whether universal injunctions were available as a remedy in early U.S. or English history, calling it a “smokescreen” that “obscures a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?”
Barrett responded to Jackson’s dissent with sharp words, writing that Jackson “chooses a startling line of attack that is tethered neither to” the sources on which Sotomayor’s dissent focuses “nor, frankly, to any doctrine whatsoever.” Dismissing Jackson’s argument as “at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself,” Barrett concluded by “observ[ing] only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
