The Supreme Court’s birthright citizenship case isn’t really about birthright citizenship

On May 15, the Supreme Court will hear three cases — consolidated under the name Trump v. CASA — which concern his unconstitutional attempt to strip many Americans born in the United States of citizenship. The mere fact that this hearing is happening is significant, as the Court rarely gives cases a full hearing in May, and typically only does so for matters of extreme urgency. There is no plausible argument that the Donald Trump executive order at the heart of this case, which targets birthright citizenship — the constitutional principle that nearly anyone born in the United States is automatically a citizen — is lawful. As Judge John Coughenour, a Reagan appointee who was the first judge to block the order, said from the bench, “I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is.” That said, the specific legal questions before the Court have little to do with birthright citizenship. At least three courts issued “nationwide injunctions” against Trump’s anti-citizenship order, meaning that lower court judges handed down orders that bind the entire federal government and prohibit Trump from canceling anyone’s citizenship anywhere under his executive order. The question of whether a single federal trial judge may issue an order that binds the entire country is fraught and has been hotly disputed for years. During the later days of the first Trump administration, Republican Justice Neil Gorsuch published an uncharacteristically persuasive concurring opinion arguing that these nationwide orders must be reined in. Gorsuch argued that injunctions — court orders that either require a party to take a particular action or forbid them from doing so — are “meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit.” When one judge can go much further, halting an entire federal policy nationwide, that creates an asymmetry. “There are currently more than 1,000 active and senior district court judges,” Gorsuch wrote. In a world with nationwide injunctions, plaintiffs can shop around for the one judge in America who is most likely to be sympathetic to their cause, and potentially secure a court order that no other judge would hand down. This “judge-shopping” became a huge problem during the Biden administration, as there is a cohort of judges in Texas who proved quite willing to issue injunctions against a wide range of liberal policies that are unquestionably lawful. Think of Judge Matthew Kacsmaryk and his infamous court order attempting to ban the abortion drug mifepristone. The GOP-controlled Supreme Court, moreover, often treated nationwide injunctions against the Biden administration very differently than injunctions binding a Republican president. In the first Trump administration, when lower court judges blocked Trump’s immigration policies, the Court often intervened within days to halt those injunctions. But when judges like Kacsmaryk enjoined Biden’s immigration policies, the Supreme Court would sometimes sit on those cases for nearly a year before ruling that the injunction was illegal. Indeed, nationwide injunctions so frustrated the Biden administration that, on her way out the door, Biden’s solicitor general, Elizabeth Prelogar, filed a brief asking the justices to limit these broad orders. That brief was filed in December 2024, after Trump had won the election, so Prelogar knew that Trump was likely to benefit if the justices took her up on her invitation. Ultimately, they did not — but they’ve instead decided to consider the question of nationwide injunctions in CASA. That’s an odd choice, because the case for a nationwide injunction on this particular issue is unusually strong. If Trump’s lawyers convince the Supreme Court to limit nationwide injunctions, however, it will have enormous implications that stretch far beyond the birthright citizenship issue. As of this writing, there are more than 200 lawsuits challenging actions by the Trump administration. If lower court judges cannot issue nationwide injunctions, Trump will have far more leeway to implement policies even after a lower court deems them illegal or unconstitutional. Still, the nationwide injunctions issue has lingered for a long time, upsetting the Justice Department in both Democratic and Republican administrations. So the Court probably could not continue ignoring it forever. The birthright citizenship order is unambiguously unconstitutional Before we dive deeper into the nationwide injunctions issue, it should be noted that the merits of the CASA case are as straightforward as any issue that has reached the Supreme Court in recent memory. Trump’s attack on birthright citizenship is obviously unconstitutional, and there are no good-faith arguments for his position. On his first day back in office, Trump signed an executive order that purports to strip citizenship from many babies born in the United States. The order targets children born to undocumented mothers whose fathers were neither citizens nor lawful permanent residents at the time of the child’s birth. It also targets children of fathers with similar immigration status, and mothers who were lawfully, but temporarily, present in the United States when their child was born. The order does not apply retroactively — by its terms, only babies born 30 days after it was issued would be ineligible for citizenship. Had it applied to adult citizens, however, it would likely denationalize many very prominent Americans, including former Vice President Kamala Harris. The problem with this order is that the 14th Amendment provides that “all 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.” “All persons” means all persons, regardless of their parents’ immigration status. As the Supreme Court held in United States v. Wong Kim Ark (1898), moreover, the 14th Amendment’s exception for children who are not “subject to the jurisdiction” of the United States is very narrow. The United States has “jurisdiction” over anyone who is bound by its laws — if the US did not have jurisdiction over undocumented immigrants, for example, then it would not be legal to deport them. Wong Kim Ark explained that there are three classes of people, two of which are still relevant today, who are not subject to US jurisdiction. One is the children “born of alien enemies in hostile occupation.” The other is children of “diplomatic representatives of a foreign state,” who have diplomatic immunity from US law. (The third category is some “children of members of the Indian tribes,” but a 1924 law established that tribal citizens are also US citizens.) Indeed, it’s worth noting that Trump’s lawyers didn’t even ask the Supreme Court to fully restore his birthright citizenship order — they merely asked the Court to limit the scope of the lower courts’ injunctions so that they only apply to the specific plaintiffs challenging the order. That strategic decision by Trump’s lawyers is unsurprising, because the unconstitutionality of Trump’s order was settled more than 125 years ago in Wong Kim Ark. So what about the nationwide injunction issue? While there is no serious argument that Trump’s birthright citizenship order is legal, there are very serious arguments on both sides of the nationwide injunction question. Gorsuch and Prelogar are correct that, when a single trial judge can set policy for the entire nation, it can needlessly disrupt the federal government’s legitimate activities. At the same time, a blanket rule against nationwide injunctions would render many court orders worthless. As one of the plaintiffs challenging the birthright citizenship order points out in their brief, the appropriate remedy in a gerrymandering case is that the entire gerrymandered district must be redrawn — not that the individual plaintiffs who brought that case be moved to another district. A more limited order would be unworkable and would impose impossible burdens on election officials who would have to track which voters are plaintiffs in which lawsuits in order to determine which candidates they may vote for. Similar problems would arise in the birthright citizenship cases if the Supreme Court attempted to limit the injunctions against Trump’s executive order. Two of the plaintiffs challenging that order, CASA, Inc. and the Asylum Seeker Advocacy Project (ASAP), say that they have “more than 800,000 members, spread across all 50 states.” When an organization secures an injunction against a federal policy, that injunction typically covers every member of that organization. Were the injunction against the executive order limited to CASA and ASAP members, in other words, states and the federal government could have to track whether the parents of impacted children are members of either group (or perhaps if the children are — again, it’s not at all clear how this would work), and extend citizenship only to those individuals. A parent who lets their membership lapse could see their child denationalized, perhaps to become a citizen again once they rejoin. That would create an unworkable administrative nightmare for everyone involved. Meanwhile, two other cases were brought by two blocs of states, led by Washington and New Jersey, respectively. And it’s not at all clear how an injunction against the executive order limited to these states alone would work: Would someone born in Washington cease to be a citizen if they crossed the border into Idaho? Or would someone born in Idaho suddenly become a citizen if they entered Washington, only to lose that status the minute they returned to a non-plaintiff state? Such a rule wouldn’t just be exceedingly difficult to administer, it would likely violate the Constitution’s equal protection principle, which prohibits arbitrary distinctions among similarly situated individuals. Fortunately, the Supreme Court’s current precedents offer a framework that can be used to resolve this tension between giving judges too much power to set national policy and forcing them to draw arbitrary lines that needlessly burden both the plaintiffs and the government. As the Court said in Califano v. Yamaski (1979), the ordinary rule is that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” In many cases, Califano will preclude nationwide injunctions. But, in the birthright citizenship cases, it’s hard to see how anything other than a nationwide injunction could suffice. CASA and ASAP members won’t receive complete relief if they are constantly having to prove their membership (or their parents’ membership) in one of these two organizations to obtain the benefits of citizenship, including the right to be free from deportation. And states can’t administer programs like Medicaid, where eligibility often turns on a beneficiary’s immigration status, if they can’t tell who is or is not a citizen. It’s worth acknowledging one additional wrinkle in this case, which the Court could decide to take up at the May 15 argument. The Trump administration claims that the state plaintiffs aren’t entitled to any relief at all because they lack “standing” — the requirement that a litigant show that they were injured in some way by the defendant they are suing before bringing a federal lawsuit. But the states have a very strong argument that they have standing to challenge the birthright citizenship order. As one bloc of states explains in their brief, many federal programs tie funding to the number of citizens within a particular state, so states will lose money if the birthright citizenship order goes into effect. Loss of funding is one of the most common ways to establish standing to bring a federal lawsuit. Additionally, the states argue that ending birthright citizenship for many children of immigrants would require them to make “substantial changes to existing public programs such as Medicaid, the Children’s Health Insurance Program (CHIP), Title IV-E foster care, and the Social Security Administration’s (SSA) Enumeration at Birth program.” Ultimately, because the case for a nationwide injunction in CASA is so strong, the Court probably will not use this case to unravel many of the more difficult questions posed by more questionable nationwide injunctions. But, at the very least, the case is likely to offer an early window into how these justices will determine which nationwide injunctions are allowed and which ones are forbidden.

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The Supreme Court’s birthright citizenship case isn’t really about birthright citizenship