133. Birthright Citizenship (Sort of) Reaches the Court

The Trump administration's emergency applications in three birthright citizenship cases are a cynical effort to mitigate the effects of an inevitable loss on the merits. The justices shouldn't bite.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. We also just launched “First One,” the weekly bonus audio companion to the newsletter for paid subscribers, with the first episode dropping last night. (It was a busy day.) If you’re enjoying the newsletter, I hope that you’ll consider sharing it (and subscribing if you don’t already):

On Wednesday, the Trump administration filed three emergency applications in the Supreme Court (its third, fourth, and fifth of the first eight weeks), asking the justices to limit the scope of injunctions entered by district courts in Baltimore, Boston, and Seattle against President Trump’s executive order purporting to exclude certain children of non-citizens born in the United States from birthright citizenship. Tellingly, the government is not asking the justices to put the executive order back into full effect. Rather, it’s launching a frontal assault on “universal” injunctions—urging the Court to limit the district courts’ relief to the specific plaintiffs in those three cases (and arguing that states aren’t proper plaintiffs in one of them).¹ In what is surely an intentional paraphrase of a tweet by Elon Musk, the applications close with the remarkable assertion that “the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere.”²

There’s a lot to say about the Trump administration’s transparently cynical maneuver here—and I say much of it below the fold. But the key for present purposes is that the Court has (recently) declined multiple requests to take up the propriety of universal injunctions—refusing to grant certiorari on the question when it was squarely presented (and when the Court took up the other issue in that same case); and turning away the Biden administration’s request that it do so in the context of the emergency application relating to the Corporate Transparency Act.

Against that backdrop, and given the stakes of the birthright citizenship issue, I’m afraid I have to disagree with my good friend and Notre Dame law professor Sam Bray, who wrote that these applications would provide “an unusually good opportunity to address universal injunctions.” As I explain below the fold, they’re a uniquely bad vehicle for the Court—not just because of the opportunities the Court has already passed on, but because of how clear it is that everyone, including the Justice Department, knows that the birthright citizenship executive order is destined to fail on the merits. Indeed, that may be why, rather than giving the challengers somewhere between 48 hours and a week to respond to the government’s applications (the usual window in such cases), the Court has given them until … Friday, April 4.

But first, the (Court-related) news.

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On the Docket

By all accounts, the only real news the Court made last week was in Monday’s regular Order List—in which it added two cases to its merits docket for next term: a technical dispute over whether state procedural rules requiring expert affidavits in support of the initial complaint in some cases apply to state-law cases in federal court; and a much higher-profile dispute over a Christian counselor’s constitutional challenge to Colorado’s ban on “conversion therapy,” i.e., attempts by mental health professionals to “convert” a minor’s sexual orientation or gender identity. The Court had denied a petition raising a similar claim from Washington state in December 2023, over dissents from Justices Thomas, Alito, and Kavanaugh. Monday’s grant suggests that those three have found at least one more vote to take the controversial dispute up for plenary review.

Monday’s Order List also included two published opinions dissenting from the Court’s refusal to take up cases. Of perhaps most interest is Justice Thomas’s dissent in Alabama v. California—in which the Court refused to grant Alabama’s motion for leave to file a suit in the Court’s “original jurisdiction.” As I’ve explained at some length, the Court has taken the position since 1976 that, even when its original jurisdiction is “exclusive” (meaning Alabama can’t sue California in any other court), the justices still have discretion to not hear cases falling within the statutory grant. Justices Thomas and Alito have been consistent dissenters from that understanding. But they also continue to not pick up any new votes.

There were no other orders from the full Court last week. Justice Alito, acting on his own, denied an application from a Texas prisoner to block his impending execution—but only because a (rare) stay entered by the Texas Court of Criminal Appeals had mooted the matter.

Turning to this week, no arguments are scheduled (the “March” argument session begins next Monday). The justices are scheduled to take the bench Friday morning at 10 ET for a “non-argument session,” but there’s no information yet as to whether we expect the handing down of any decisions in argued cases, or whether it will be a brief session devoted solely to bar admissions. Otherwise, any formal actions from the Court this week will come through miscellaneous orders—including with respect to emergency applications. All we can say with confidence is that, for reasons elaborated upon below, we don’t expect any movement in the birthright citizenship cases.

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The One First “Long Read”: Hostility to Universal Relief as a Way to Defend an Unconstitutional Policy

Public debate over, and criticism of, universal injunctions is not a new phenomenon. Indeed, it’s been the subject of multiple prior issues of this newsletter. That’s why one of the problems with the Trump administration’s increasingly pointed attacks on the practice is how nakedly hypocritical they are, given that many of the very same people were either involved in, or publicly cheering on from the sidelines, universal injunctions entered by individual (and often hand-picked) district judges to block Biden administration policies on a nationwide basis. Of course, that’s not a defense of universal injunctions; as I’ve suggested before, I think they out to be reined in (with a requirement that those seeking such relief meet a higher bar than what’s required for a plaintiff-specific injunction), and that such reforms should come alongside reforms that make it harder for hand-picked judges to issue them. But it’s important context for the three birthright citizenship applications because this “scope-of-injunction” question is not reaching the justices on a clean slate.

Just to show some receipts here, last year, the (Biden) Justice Department filed a cert. petition seeking reversal of a universal injunction against a Department of Education rule entered by the Fifth Circuit.³ In addition to asking the justices to take up the merits of the legal question (whether the rule is consistent with the relevant statute), the government’s cert. petition also asked the justices to take up “Whether the court of appeals erred in ordering the district court to enter preliminary relief on a universal basis.” What was especially telling about this case, Department of Education v. Career Colleges and Schools of Texas, is that it was not as highly charged ideologically as a number of the cases in which lower courts have entered universal injunctions. Thus, if the justices were looking for a good vehicle for reconsidering universal relief in a context in which it wasn’t so obvious whose ox was being gored, the CCST case seemed to be it. Indeed, although the cert. petition had been filed by the Biden administration, the case went to Conference after the election—so the justices would also have had the benefit of having administrations of both parties on the side against universal relief. And yet, in January of this year, the Court granted certiorari on the merits question (“Question 1” in the petition), but did not grant certiorari on the scope-of-relief question.

At roughly the same time, as I covered in the newsletter, the Biden administration also asked the justices to revisit the scope of universal injunctions in its emergency application seeking a stay of a universal injunction entered by a Texas district judge in the Corporate Transparency Act case. Again, the Court gave the administration what it wanted on the “merits”—granting the application and staying the injunction at issue. And again, it refused to take a closer look at universal relief—prompting a brief “concurrence” from Justice Gorsuch (the loudest—if perhaps inconsistent—critic of universal relief on the Court), who noted that he would have taken up the Biden administration’s invitation. Although the merits question in the CTA case (about Congress’s constitutional authority to enact the statute in the first place) probably can fairly be described as ideological (as most debates over the scope of the Interstate Commerce Clause tend to be), I don’t think I’m speaking out of school to suggest that here, again, was an opportunity to take up the universal relief issue in a case that didn’t have quite the same partisan over- and undertones as, say, the mifepristone case or the present disputes over birthright citizenship. Taken together, these two moves, less than two months ago, signaled pretty loudly that there aren’t five votes on the Court (and perhaps not even four) to call the authority of federal courts to issue universal relief into question.

Against that backdrop, I was surprised by Professor Bray’s suggestion that the birthright citizenship cases provide “an unusually good opportunity to address universal injunctions.” In his defense, Bray’s argument is that, because the merits seem so clearly foreordained, the birthright citizenship cases would be a “clean” vehicle; the Court wouldn’t run the risk of fracturing between justices who want to modify the injunctions because they disagree on the merits and justices who want to modify them because of their scope. Thus, a decision limiting (or getting rid of) universal injunctions could be entirely without regard to the justices’ views of the merits.

I see two problems with this argument, though. First, assuming there are five votes to limit or get rid of universal injunctions, doing so here would, in my view, look really bad given that the Court refused to do so in the Career Colleges and Schools of Texas and Corporate Transparency Act cases. “I’m okay with universal injunctions when they’re blocking less controversial things, but not when they’re vindicating one of the most important constitutional rights,” would be a message I can’t imagine this Court wants to send. Thus, the question isn’t whether this is a good vehicle in the abstract; it’s the message it would send to curtail the scope of relief here when the Court has refused to do so in these other, recent, less-divisive contexts.

Second, I also think that the birthright citizenship cases provide uniquely powerful proof for why universal injunctions are valuable. Were the Supreme Court to grant the relief the Trump administration is requesting, that would allow the executive order to into effect against virtually everyone who would be affected by it; only the named individual plaintiffs would be exempt. Yes, other individual plaintiffs could sue to challenge applicability of the executive order to them, but it should go without saying that many members of that descriptive (if not legal) class would not have the resources or the wherewithal to bring those cases. (DOJ suggests that class-wide relief is a possibility, but doesn’t say it would assent to class certification, or otherwise explain how the Supreme Court’s recently heightened barriers to certification of nationwide classes would be overcome here.)

And even in a world in which courts were providing district- or even circuit-wide relief, are we really going to have different birthright citizenship rules depending upon whether the child is born in Arizona or New Mexico or Texas? Indeed, I’ve long thought that immigration law is a context in which universal relief is especially defensible—because of the difficulties litigants would encounter proceeding on a retail basis, and the difficulties the government would encounter in trying to have different policies by jurisdiction, or even by opposing party.

There’s one last point here: I wrote a piece back in November about how the Supreme Court’s current term was likely to get taken over by emergency applications from the Trump administration, and how one of the big questions would be if the justices had learned any lessons from their experiences with the flurry of applications from the first Trump administration. One of the things the Trump DOJ excelled at between 2017 and 2021 was using clever emergency litigation to mitigate its (inevitable) losses on the merits—in some cases, getting the justices to put back into effect, in some cases for years, policies that no court would ever uphold (like several of its asylum rules); and in other cases, delaying the justices’ intervention long enough to buy time for the government to reconfigure its factual or legal position (as in the travel ban cases). That is quite obviously the goal here: having decided that there’s very little likelihood that five justices will uphold the birthright citizenship executive order on the merits, DOJ is trying to get as much of the order into effect for as long as possible—in a context in which it is quite visibly not seeking any assessment of its ultimate likelihood of success.

Fortunately, the justices know that too. Indeed, the fact that the Court gave the challengers in the three cases three full weeks to respond to the Trump administration’s applications, with responses due on Friday, April 4, is about as strong a sign as could possibly have been sent that the justices are in no hurry to give DOJ what it’s asking for. (Again, the norm in such cases is anywhere between 48 hours and one week.) One can hope that this sign holds up when the Court ultimately rules on these applications. Otherwise, the justices would be signaling that it’s effectively open season for the same kind of manipulations of emergency relief in the second Trump administration—with far more divisive and deleterious consequences on the ground.

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SCOTUS Trivia: The Irish Justice

In honor of St. Patrick’s Day, I thought I’d take a moment to write about the one Supreme Court justice born in Ireland—Justice William Paterson.

Paterson is one of those Founding-era lawyers who was seemingly in the middle of almost every major development. Back in 2021, the Supreme Court Historical Society provided a really helpful biographical note, and I’d be hard-pressed to improve upon it here. A tutee (and good friend) of Aaron Burr’s at Princeton, Paterson was one of New Jersey’s delegates to the Constitutional Convention, at which he was responsible, among other things, for the New Jersey Plan. He served as one of New Jersey’s first two senators; stepped down because he was elected governor in 1790; and was appointed to the Court in 1793 by President Washington—to fill the seat vacated by Thomas Johnson (who had himself filled the seat vacated by John Rutledge, and then promptly resigned when he became fully apprised of his circuit-riding obligations).

My favorite trivia about Paterson is why Washington had to nominate him twice. As a member of the Senate in 1789, Paterson had voted in favor of the Judiciary Act of 1789—which created the Supreme Court seat to which Washington nominated him. But when Washington first nominated him (on February 27, 1793), it was still during the “the Time for which he was elected,” even though Paterson was no longer in the Senate. Thus, his appointment would’ve violated Article I’s Ineligibility Clause, which prohibits members of Congress from being appointed to positions they helped create absent an intervening election for their seat.

Fortunately for Washington, Paterson had been elected in 1788 to only a four-year term (the first senatorial elections staggered the terms between two, four, and six years), and so he became “eligible” just five days later, when the Second Congress formally ended and his original senatorial term expired. Washington promptly re-nominated him, and the Senate confirmed him to the Court—where he served with distinction, albeit without a lot of headlines, until his September 1806 death. Indeed, Paterson was the first justice to die from complications from a coach accident that he suffered while riding circuit; he wouldn’t be the last.

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1. For more on what makes an injunction “universal,” and why the more common term “nationwide injunction” is a misnomer, see this earlier post.

2. Of course, the Acting Solicitor General knows, or at least should know, that there is a universe of presidential actions that are not subject to any judicial review—such that, even taking the causal claim at face value, it’s predicated on a logically impossible (and, thus, massively misleading) overstatement.

3. Yes, the Fifth Circuit entered the injunction—after the district court had declined to do so.