On Friday, the Supreme Court handed down its decision in Trump v. CASA, a case that is both generally about the authority of courts to rein in executive lawlessness, and also specifically about the authority of courts to prevent President Donald Trump from rewriting the Constitution to eliminate the Fourteenth Amendment’s guarantee of birthright citizenship.
The six Republican justices in the majority claimed, at least for now, to answer only the first question. But for millions of people, they have effectively answered the second one, too, and (you will never believe this) in the way Trump wants. In an opinion written by Justice Amy Coney Barrett, the Court imposed sharp limits on federal district courts’ power to issue nationwide injunctions, since, in Barrett’s view, such injunctions lack a “historical pedigree,” and are not sufficiently “analogous” to forms of relief available in English courts 250 years ago.
As a result, the Court rolled back a trio of district court injunctions that had blocked Trump’s birthright citizenship order on a nationwide basis: Going forward, Barrett says, lower courts may enter injunctions only to the extent necessary to provide “complete relief” to the parties in a case before them. In the context of the birthright citizenship executive order, this can mean being an individual pregnant person who is suing for your unborn child’s citizenship, or being a resident of one of 22 states in which Democratic attorneys general have sued on their residents’ behalf to (temporarily) block the order from taking effect. For the time being, children born to undocumented people and non-permanent residents who fit this description will still become U.S. citizens as a matter of birthright.
Children born in the 28 states not covered by an injunction, however, are getting thrust into a constitutional gray zone. Instead, for however long it takes courts to resolve legal challenges to the order—which, as Justice Brett Kavanaugh pointed out in a concurrence, could take several years—children born to undocumented people and non-permanent residents from this point on will be relegated to a crude form of second-class citizenship. They will have trouble doing basic things like enroll in school, get an ID card, or obtain healthcare via Medicaid, as Matt Watkins explains at Slate. And if these legal challenges someday conclude with a 6-3 opinion in which the Republican justices decide to permit their favorite president to rewrite the Fourteenth Amendment after all, those children could be subject to deportation at the government’s earliest convenience.
The upshot of CASA is that what was, until several hours ago, a fundamental right affirmed by the Constitution’s plain text and more than a century of Supreme Court precedent is now a privilege contingent on in which state you happen to be born, and to whom, and when. The last time the justices issued a decision like this one, the country fought a civil war over it.
Friday’s decision is of course not the end of litigation over birthright citizenship, and Barrett’s opinion suggests that challengers may instead pursue their cases via class action. But as Justice Sonia Sotomayor notes in dissent, although class actions “may provide some relief,” they are not as effective as universal injunctions, especially when the stakes are this high. For one thing, courts have in recent years made the process of certifying a class much more onerous, costly, and time-consuming; for another, when asked at oral argument, Solicitor General D. John Sauer indicated that the Trump administration would fight class certification if plaintiffs sought it. Saying that people who are no longer protected by universal injunctions can simply file a class action is like taking away someone’s key and giving them a lock-picking kit instead: Sure, with some effort, it might work at some point in the future, but they would probably feel more comfortable if they had the thing that could just open the door and get them inside already.
Like most opinions that purport to apply the “history and tradition” test, Barrett’s opinion is heavy on University of Wikipedia history: There is a lengthy discussion of the High Court of Chancery, and a reference to the 18th-century royal prerogatives of the English king, and citations to an 1881 treatise on equity jurisprudence. In dissent, Justice Ketanji Brown Jackson describes this section as a “mind-numbingly technical query,” which in my view is, if anything, an understatement.
Absent from Barrett’s analysis is any acknowledgement of the chaos her decision creates: the fear it strikes in the hearts of some of this country’s most vulnerable people, or the impossibility of the patchwork of administrative burdens it places on states, or the farcically unconstitutional order that gave rise to the injunctions in the first place. It is yet another instance of the Court using anodyne legalese to gloss over the real-world consequences of its actions. As Jackson writes, by limiting injunctions to parties covered by a particular lawsuit, the Court “allows the Executive to deny people rights that the Founders plainly wrote into our Constitution, so long as those individuals have not found a lawyer or asked a court in a particular manner to have their rights protected.”
Activists participate in a protest outside the Supreme Court as the justices heard oral argument in the birthright citizenship case (Photo by Alex Wong/Getty Images)
Over the last several months, federal courts have been on the front lines of stopping Trump’s multitudinous illegal stunts from taking immediate effect. (Congress, in theory, could be playing a role here, but to date, Republican leadership has been willing to cede as much of their power as he’s asked for.) Every universal injunction that temporarily limited Trump’s ability to act is now vulnerable to challenge, and the ability of people to protect their rights is contingent on whether they can attach themselves to the right case, and to the satisfaction of Amy Coney Barrett. No one was happier with the result than Trump, who celebrated the decision as a “monumental victory for the Constitution,” and promised to “promptly file to proceed with numerous policies that have been wrongly enjoined on a nationwide basis.”
Barrett wraps by framing her opinion as consistent with courts’ obligation to avoid acting as an “imperial Judiciary,” and to limit themselves to “resolv[ing] cases and controversies” that come before them. This is a time-honored argument from conservative judges, who love nothing more than the opportunity to implement their policy preferences while complimenting themselves for careful judicial minimalism. The moment a Democratic president is back in office, I promise you that the same justices disclaiming any authority to “exercise general oversight of the Executive Branch” will rediscover both their solemn obligation and their limitless power to do exactly that.
Politicians and judges of both parties have long complained about universal injunctions, and the intensity of complaints generally correlates with how much the complainers personally support the policy being enjoined. But it is not a coincidence that after years of passing up repeated requests to limit universal injunctions, the Court at last decided to intervene now, when the conservative supermajority’s party controls both the White House and Congress, and when the president is defending his most ambitious anti-constitutional executive order yet.
By deciding CASA as it did, Jackson writes, the Court has essentially “shoved lower court judges out of the way,” thus “gifting the Executive with the prerogative of sometimes disregarding the law.” This is not an abstract abdication of judicial power; it is one that heartily affirms the worldview of a president who has demonstrated time and again that he does not feel bound by the law in the first place.
