A Supreme Court judge noted on Thursday that there are significant divisions among lower court judges regarding whether to limit the issuance of nationwide injunctions. This discussion followed a debate about the Trump administration’s effort to lift an executive order that restricts birthright citizenship.
During the two-and-a-half hour session, the judges largely avoided delving into the specifics of Trump’s actions, which aim to end the automatic recognition of US-born children of undocumented immigrants as citizens. Instead, the focus was on whether a single federal judge has the authority to block such orders from being upheld.
Protesters gathered outside the Supreme Court in hopes that the case would inherently support citizenship, even though the core issue revolved around restraining orders.
President Trump urged the Supreme Court to back the birthright citizenship order, but the Court did not engage with its merits.
A coalition of 22 states has sued the Trump administration over its executive orders, with federal judges in Maryland, Massachusetts, and Washington issuing three injunctions against it. Three appellate courts have consistently rejected attempts to lift these injunctions.
“There are many issues with national injunctions,” questioned Justice Sauer. “It’s illegal, but how do I reach that conclusion within your framework without the potential for a nationwide injunction?”
Political justices, both conservative and liberal, acknowledged the increasing use of national injunctions by lower courts. Conservative Justice Brett Kavanaugh highlighted that these district judges are not only issuing universal injunctions but are also determining actions to be illegal beyond their authority.
A recent Harvard Law review noted at least 64 national injunctions against Trump during his administration, in stark contrast to just six under George W. Bush, twelve under Barack Obama, and fourteen under Joe Biden.
“This spans five presidential administrations, making it a bipartisan issue,” Sauer contended. “The universal injunction goes beyond the jurisdiction given under Section III, which is meant to address the specific injuries of the party involved.”
The case is particularly contentious within the Supreme Court, as it could reshape the landscape of judicial responses to executive actions.
Judges expressed concern about the implications of entirely eliminating the universal injunction. “I argue that there’s no constitutional way for the President to prevent unconstitutional actions,” Justice Sauer remarked, illustrating the potential for significant legal overreach.
Alternatives, such as lawsuits filed by teachers instead of relying solely on injunctions, were suggested. This would allow a more thorough process for plaintiffs to argue on behalf of others affected by the same policy.
“We have concerns regarding the government’s push to oppose our class certification,” said Kelsi Kolklan from Georgetown Law School, speaking on behalf of immigration rights groups. “If we pursue class action, the process could be lengthy and may delay urgent relief for the plaintiffs.”
New Jersey Attorney General Jeremy Fagenbaum emphasized the need for stricter controls on lower courts, proposing a three-part test to evaluate the appropriateness of a universal injunction.
Conservative Judge Amy Coney Barrett appeared to be a key swing vote, expressing concern over how the Trump administration would adhere to appellate court decisions.
Supreme Court Justice John Roberts remained relatively quiet throughout the proceedings but suggested that a prompt resolution to the dispute could alleviate the universal injunction issue. “Is there any reason we can’t act swiftly in this case?” he asked.
Simultaneously, Justice Thomas remarked how the nation had managed without universal injunctions since the 1960s. The cases—Trump vs. Casa, Trump vs. Washington, and Trump vs. New Jersey—are expected to be resolved by the end of June.
