Tag: Executive Order

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“Nationwide” Injunctions, Birthright Citizenship, and the Supreme Court Decision in Trump v. CASA

The case is here. For a variety of takes from the commentators, see, e.g.,

Amy Howe (SCOTUSblog), Supreme Court sides with Trump administration on nationwide injunctions in birthright citizenship case

Washington Post Editorial Board, Justices need to own the consequences of their injunction ruling: the court has significantly weakened district courts’ ability to halt illegal presidential actions.

Jason Willick (Washington Post), Justice Kavanaugh explains what the injunctions ruling won’t change

Philip Rotner (The Bulwark), Ignoring Substance, SCOTUS Permits Lawlessness

Nicholas Bagley (The Atlantic), The Supreme Court put Nationwide Injunctions to the Torch: That isn’t the disaster for birthright citizenship that some fear. 

N.Y. Times, Guest Essay, ‘There’s Just Too Much Lawlessness’: Three Legal Experts on an Embattled Supreme Court

See also yesterday’s update from the ACLU. 

I discussed the executive order on birthright citizenship in the preceding post. 

What is a “Nationwide Injunction”?

The term “nationwide injunction” is inapt and misleading, but lots of people want to use it anyway. So let’s define it for present purposes. For present purposes, a “nationwide injunction” is an injunction issued in a case brought by one or more persons (either two-legged persons or juridical persons such as corporations) that protects not only the individual plaintiff(s) but also everyone else in a similar legal position, even though there is no certified “class action” in accordance with Rule 23 of the Federal Rules of Civil Procedure. 

As so defined, a nationwide injunction is an end run around the normal requirements for class certification under Rule 23.[1]

To illustrate and explain the point: Plaintiffs in the CASA case include four new mothers and their babies, one pregnant woman and her unborn child, and three undocumented immigrant women who might become pregnant. If the plaintiffs wanted to secure a ruling protecting not only their children but also all children whom Trump threatened to deprive of citizenship, then the normal/traditional route would be to ask the district court to “certify” such a “class” of similarly situated mothers. That class certification process involves a number of inquiries about whether it would be advisable for the litigation to go forward on a class basis, not an individual basis. But Liza, Andrea, and the other expectant mothers asked for nationwide/universal relief, without going through the certification exercise.

Before Trump v. CASA, Was There a Legitimate Legal Controversy about Whether Courts Could Issue “Nationwide Injunctions”?

Yes. Long story. But yes. 

In fact, the Biden administration asked the Supreme Court to impose severe limitations on “nationwide injunctions.”

Some Say it was Odd—and Inadvisable—for the Court to Rule on the “Nationwide Injunction” Question but Kick the Can Down the Road on the Substantive Issue of Birthright Citizenship. Do You Agree?

Yes, I do agree. And if anyone reading this post wants to delve deeper, many of the sources cited above will be useful.

But I think the much more interesting question is whether plaintiff can represent a class of similarly situated mothers, babies, and unborn children.

And whether, by so complying with Rule 23, they can find effective legal relief against Trump’s illegal position on birthright citizenship.

What’s Going to Happen Next in the Birthright Citizenship Cases?

I’ll write about that in my next post, which will appear immediately above this one, because the posts on my blog appear in reverse chronological order.

[1] Related, but distinct, issues are raised by lawsuits with plaintiffs claiming to represent a category of other people—for example, a suit brought by a state government on behalf of all its citizen or a suit brought by a trade association on behalf of all its members. Team Trump challenged the “standing” of states and associations to bring such cases, but the Court decided to kick this can down the road. 

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Trump’s Executive Order on Birthright Citizenship

What Does the Executive Order Claim to Accomplish?

The executive order is prospective. It purports to deny citizenship to future babies born in the United States if (1) the baby’s mother is unlawfully present in the United States and (2) the baby’s father is not a U.S. citizen or lawful permanent resident.[1]

What is the Legal Basis for the Executive Order?

The 14th Amendment provides, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …” 

Thus, if you want to argue that babies born in the United States to undocumented parents are not citizens, then you have to hang your hat on the words “and subject to the jurisdiction thereof.” And you have to make a very strained and slanty-eyed interpretation of that phrase. 

That strained interpretation is the position Trump takes in the executive order. 

A Frontal Challenge to an 1898 Supreme Court Case

Back in 1898, the Supreme Court considered—and rejected—the legal position that Team Trump now espouses. So Trump has to argue (among other things) that the Supreme Court got it wrong in 1898, and that the law has stayed wrong for the past 127 years.

Four Ways to Read the Executive Order

(1) A Test Case before the Supreme Court. A charitable reading is that the executive order is intended as the predicate to a test case, in which the Supreme Court would revisit the issue it decided back in 1898. 

Trump may argue that it’s OK to set up a test case. After all, we all have a constitutional right to be wrong, and we all, including His Most High Excellency, have a right to ask the Supreme Court to embrace our erroneous legal claims.[2]

(2) Defiance of the Supreme Court. An uncharitable reading of the executive order is that Mango Mussolini claims that HE ALONE, not the Supreme Court, may divine the definitive definition of the words in the Constitution. 

(3) Evasion of Supreme Court Review, or, the Cuter Than Bambi Reading. A third interpretation—perhaps even more uncharitable, though very possibly accurate—is Team Trump is attempting to evade Supreme Court review of his novel constitutional argument by 

  • losing all the cases brought by people aggrieved by the order, 
  • avoiding all appeals of such losses, and 
  • enforcing their erroneous legal interpretation against everybody else. 

Some lawyers—not that many, but some—are under the impression that they are cuter than Bambi. This is the sort of horseshit that they come up with. 

(4) The FAFO Reading. Lastly, one may read the executive order as implying that Team Trump hasn’t thought through how to get their novel legal theory accepted. Under this interpretation, they just plan to Fuck Around and Find Out.

What about Retrospective Application of Trump’s Position against Birthright Citizenship?

Someone other than me must surely have spotted this issue—but, if so, I haven’t seen any evidence of it. Here’s the issue. 

Suppose that—some way, somehow—Team Trump gets the courts to all enforcement of the executive order in respect of future babies born to undocumented immigrants. Bear with me on that. Just entertain the supposition.

Logically, that would imply everybody already born in the United States to undocumented parents also lacks U.S. citizenship. 

Would Team Trump be prepared to take that position?

That’s at least five million people, and probably more.

[1] The order also addresses another distinct issue/problem, that of “birth tourism.” That’s an interesting issue, but pales in importance compared to the issue of babies born to undocumented immigrants.

[2] That right flows from the First Amendment right to petition for redress of grievance. And, BTW, Trump also has a constitutional right to ask Congress to pass a law endorsing his view of citizenship. But that wouldn’t work, because any such law would be unconstitutional unless and until the Supreme Court changes its mind about its 1898 interpretation of the Fourteenth Amendment.