The Justice Department heads to the Supreme Court on Thursday to defend President Donald Trump’s executive order on birthright citizenship in a case that could have far-reaching implications on activist judges’ ability to hamper Trump’s agenda.
While the case, Trump v. Casa, revolves around Trump’s day one actions on birthright citizenship, the primary arguments are expected to focus on the power of lone judges to issue universal injunctions that apply to the whole country. The Trump administration has asked the court to rule three nationwide injunctions issued against the birthright citizenship order are only applied to the parties involved and not the whole country.
“For the first 170 years of American jurisprudence, nationwide injunctions were virtually unknown,” Solicitor General John Sauer wrote in an April 7 filing. “Their use remained sparing until this century, when they saw a dramatic upsurge in 2017, followed by an explosion in the last three months.”
“These injunctions exceed the district courts’ authority under Article III and gravely encroach on the President’s executive power under Article II. This Court’s intervention is urgently needed to restore the constitutional balance of separated powers,” he added.
A win for the Trump administration would be significant blow to the Left, which has utilized judges to block much of Trump’s policies from immigration to efforts to dismantle the sprawling federal bureaucracy.
Sauer will present arguments before the court for about 30 minutes before two lawyers from public and private groups challenging Trump’s order argue for 15 minutes each. The Justice Department has asked the Supreme Court to narrow the scope of the three injunctions issued against Trump’s “Protecting the Meaning and Value of American Citizenship,” executive order.
That executive order directed the government to stop granting citizenship to individuals who were born to people illegally in the country or who were born to people living transiently in the United States.
During a background call on the case attended by The Daily Wire, a Justice Department official said “the key question” in the case is about “what to do about all these nationwide injunctions.” The official noted that the rash of universal injunctions was “devastating” for Trump’s “ability to effectuate the agenda that he was elected to do.”
The official noted that 35 of the 39 total universal injunctions issued against the Trump administration have come from the same five courts: the districts of Massachusetts, Maryland, Washington, D.C., Northern California, and Western Washington.
“They just shop for the favorable forums in order to drag the executive branch’s policies to a halt,” an official said, adding that the Trump administration would be ready to defend the merits of the birthright citizenship order when and if those arguments came up.
Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, told The Daily Wire, that he suspected the Supreme Court decided to take up the case partially in response to criticism for not reigning in district court judges in a multitude of other cases.
“The fact that they scheduled oral arguments on this case, past their usual deadline, tells you the importance that the court is attaching to this,” he said, noting the last oral arguments are typically scheduled for the beginning of May.
Previous rulings from the court, including U.S. v. Mendoza (1984), could provide guidance for the court. In that decision, the court ruled that when a judgment is rendered against the government, courts can only apply judgment to parties in the lawsuit, von Spakovsky said.
Von Spakovsky said that he expects the justices to focus on the injunction issue, and not the substantive debate after Trump’s interpretation of the 14th Amendment. He said that a win for the Trump administration could act as a warning to judges to not overstep their activity.
However, a loss he said would even further open up the floodgates of challenges to the administration.
“If the government loses this particular issue, it’s like opening the gates to a rock concert and letting the crowd just rush in without giving tickets,” he told The Daily Wire. “It’s going to mean that these judges all over the country can continue to issue these nationwide injunctions against almost any executive order.”
