Although the special U.S. Supreme Court argument on Thursday involves the technical issue of the scope of an injunction blocking President Donald Trump’s birthright citizenship executive order, don’t be surprised if we learn something more about how the Justices view the merits of that controversial executive order.
The Trump Administration is asking the high court to restrict the nationwide effect of three injunctions issued by three separate district courts against implementation of the executive order. Those courts questioned the order’s constitutionality in very strong words. The government is seeking what is called a “partial stay” of the injunctions, which would make them apply only to the 22 states and District of Columbia, two organizations, and individuals who challenged the executive order in those three courts. It calls this a “modest request.”
If the government is successful, the executive order would be effective in the rest of the nation. The three cases would continue on in the lower federal appellate courts on the constitutionality of the executive order.
The Constitutional Argument
The Citizenship Clause in 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.” For more than 100 years, the phrase “subject to the jurisdiction thereof” has been understood to mean subject to the laws or legal jurisdiction.
The Trump executive order, issued Jan. 20, 2025, changes that understanding to mean “political jurisdiction.” The government tells the Justices:
“The original public meaning of the term ‘jurisdiction’ refers [to] ‘political jurisdiction’ (which turns on whether a person owes allegiance to, and is entitled to protection from, the United States), not regulatory jurisdiction (which turns on whether a person must follow U.S. law). A person born in the United States is subject to its political jurisdiction only if, under background legal principles as understood at the time of ratification, he owes primary allegiance to the United States rather than to an ‘alien power.’
“A substantial body of historical evidence shows that the children of temporarily present aliens or of illegal aliens similarly are not subject to the political jurisdiction of the United States.”
And so the battle over the meaning of the Citizenship Clause has been joined, with universal injunctions the response of federal courts to the Trump Administration’s interpretation.
The Debate Over Injunctions
During the arguments on May 15, we can expect to hear the lawyers vigorously debate the pros and cons of nationwide– “universal”-- injunctions. It may not be scintillating material. But there are two reasons why, by the end of the arguments, we may know something about how certain Justices are thinking about the merits of the Trump Administration’s executive order.
First, this argument is before the U.S. Supreme Court, and its Justices can go wherever they choose, explore any line of questioning, during an argument. It may be difficult for some to resist discussing or making a statement about the merits.
Second, as technical or boring the injunction question may be, it can’t be discussed as an academic exercise or from a 30,000-foot level in the Supreme Court. It is tied to the underlying case because of the factors that the Supreme Court has said it considers when a party is asking for a stay, even a partial one.
Last year in Ohio v. EPA, a case involving the Environmental Protection Agency, the Justices once again said what those factors are:
“When deciding an application for a stay, the Court asks (1) whether the applicant is likely to succeed on the merits, (2) whether it will suffer irreparable injury without a stay, (3) whether the stay will substantially injure the other parties interested in the proceedings, and (4) where the public interest lies.”
The government argues that the lower courts’ universal preliminary injunctions were overbroad in three ways:
First, they granted relief to nonparties to the litigation and should have been limited to the parties before the lower courts and only if they were proper parties. The government contends that the states were not proper parties because they did not have the right– or standing– to sue. By granting relief to nonparties, those injunctions exceed the power of Article III courts.
Those injunctions also cause significant harm to the government and the courts by encouraging forum shopping (seeking to file a lawsuit in a favorable jurisdiction) and forcing judges to make rushed, high stakes decisions with little information.
They also interfere with the internal operation of the Executive Branch. In this case, they prevented the Executive Branch from developing guidance on the implementation of the executive order.
A court “has no power under Article III to superintend the Executive Branch’s internal operations by prohibiting agencies from developing or issuing policies in the first place.”
Issuing a stay would serve the public interest, according to the government, because universal injunctions thwart the rule of law, and Articles II and II, no less than the citizenship clause of the Constitution.
Noting that there are more than 1,000 active and senior judges across 94 judicial districts, the government concludes its brief, saying, “Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere.”
The Challengers' Arguments
The challengers to the executive order note in their response to the government’s arguments that the government in its request for a stay in the lower court and in the Supreme Court has not argued that it is likely to succeed in defending the legality of the order.
“And yet, the government asks this Court to intervene to lift the injunction so that the government may begin applying the facially unconstitutional Order against nearly everyone,” they argue. That is not a ‘modest request.’”
The government, they add, fails to show the injunctions create irreparable harm to it. The injunctions only require the government to comply with 125 years of settled interpretation of the Constitution’s citizenship clause while the litigation continues in the lower courts.
The injunctions serve the public interest by preventing confusion and chaos if the order is effective even partially, they contend: “Birthright citizenship would depend on where a child is born or whether their parents are members” of the states or organizations challenging the executive order.”
And, a nationwide injunction does not improperly benefit non-parties to the litigation. It is the only way to ensure “the constitutionally guaranteed citizenship of all children born to members of the lawsuits challenging the executive order.
The audio of the arguments will be live streamed on the court’s website: www.supremecourt.gov.
Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.
