What The Hell America!

Forty-six minutes into the Supreme Court’s oral argument in the birthright-citizenship litigation, Solicitor General D. John Sauer got a question he couldn’t answer. Arguing on behalf of the government, Sauer wants the Court to prohibit nationwide injunctions, allowing President Donald Trump’s executive order ending birthright citizenship—along with many of his other policies—to go into effect. Justice Brett Kavanaugh, a Trump appointee, wanted to know how, exactly, the government would administer a rule denying citizenship to potentially hundreds of thousands of babies every year.

“On the day after it goes into effect,” Kavanaugh asked, “how’s it going to work—what do hospitals do with a newborn? What do states do with a newborn?”

“We don’t know,” Sauer candidly told the Court, saying that “federal officials will have to figure that out.” Later, he added, “Hopefully, they will do so.”

Really? With this one exchange, Sauer inadvertently revealed why nationwide injunctions are at times the only way to protect the public. The administration has no workable plan for its unconstitutional order, yet it wants to take away the best legal pathway for those affected to challenge the government’s action.

Nicholas Bagley: The birthright citizenship case isn’t really about birthright citizenship

The Trump administration has had plenty of time to prepare for this moment. During his first administration, Trump claimed authority to end birthright citizenship by executive order. Last year, he repeated that threat at rallies across the nation. His campaign website prominently featured a video in which he personally pledged to end birthright citizenship on “day one” of his presidency.

On January 20, 2025, Trump delivered on that promise, signing an executive order denying citizenship to all children of undocumented immigrants, as well as all children of immigrants with temporary legal status, who are born after February 19, 2025.

That order is at odds with the clear text of the Fourteenth Amendment, the original understanding, long-standing judicial interpretation, and multiple federal statutes. And it would destabilize the citizenship of many of the 3.6 million babies born, on average, in the United States every year—including those born to U.S. citizens. According to the executive order, a birth certificate alone would no longer demonstrate citizenship. All of those parents would have to somehow prove their own citizenship or immigration status before their child could be recognized as a citizen. Additionally, even babies born to lawful temporary immigrants—including temporary workers and students who have been living in the United States for years—would be denied citizenship, losing access to Medicaid, SNAP, and other federal and state benefits. Those children would be born undocumented, some stateless, all at risk of being deported on the first day of their life.

Yet Sauer conceded that the Trump administration does not have a plan—does not even have a concept of a plan—to implement this radical change in U.S. law and policy.

“It’s going to produce unprecedented chaos on the ground,” New Jersey Solicitor General Jeremy Feigenbaum told the Court when it was his turn at the podium. Feigenbaum was speaking for the 22 states, together with the District of Columbia and San Francisco, that had won an injunction prohibiting implementation of the executive order nationwide. Such injunctions—also known as universal injunctions—bar the federal government from applying a challenged policy to anyone, not just the parties to the suit. A federal court in Maryland issued a similarly sweeping injunction in a lawsuit filed on behalf of five expectant mothers and two immigrants’-rights organizations, now also before the Supreme Court in these consolidated cases.

The Supreme Court likely granted this unusual oral argument—late in its term, and from a case on its “emergency” docket—because it wanted to rein in the power of a single federal judge to stymie the preferred policies of a democratically elected president. Once rare, such injunctions have become commonplace. A record 40 such nationwide injunctions have already been issued against the Trump administration, though that may be due to Trump’s record 150 (and counting) executive orders. In recent years, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett have all raised concerns about such injunctions.

The government is right that nationwide injunctions come with real costs to any presidential administration. They encourage forum-shopping, leading to a pattern whereby red-state judges blocked President Joe Biden’s policies and blue-state judges block Trump’s. They put pressure on the Supreme Court to decide cases quickly and at an early stage of the litigation, when the facts and law have yet to be well developed. They give plaintiffs an unfair advantage: If plaintiffs win, the executive is enjoined from enforcing its policies, but if they lose, a new plaintiff can file another suit before a different judge. And it just seems odd that a judge in Washington State could enjoin the birthright-citizenship executive order (or any order, for that matter) from going into effect in Texas—especially given that Texas (along with 18 other states) filed an amicus brief supporting the executive order.

Yet these injunctions are also essential in at least some cases, such as when a patchwork implementation of a law proves unworkable. That is the case here, Feigenbaum told the Court yesterday. Ending nationwide injunctions would allow citizenship to “vary based on the state in which you’re born,” and would “turn on or off when someone crosses state lines.” If the executive order was enjoined in New Jersey but not in the neighboring state of Pennsylvania, Feigenbaum said, then what happens “when you live in Philly and you move to Camden”? Under such a system, pregnant women would be motivated to cross state borders to give birth—a bizarre variation on “birth tourism” incompatible with the fact that the United States is a single nation.

The Fourteenth Amendment’s citizenship clause was added to the U.S. Constitution in 1868 in part to overturn Dred Scott v. Sandford, a case that divided the nation by declaring that Black people could not be U.S. citizens. Alluding to that history, Feigenbaum observed: “Never in this country’s history since the Civil War” has citizenship turned “on when you cross state lines.”

Perhaps most important, nationwide injunctions are sometimes the only way to protect the thousands, even millions, of people who would be injured by a radical new government policy during the time between the start of litigation and a final judgment by the Supreme Court—typically years. If it weren’t for nationwide injunctions, only those with the wherewithal to file a lawsuit could protect their rights in the interim.

Presumably, that’s why Kavanaugh asked Sauer how the government would implement the birthright-citizenship executive order. Perhaps he wanted to hear that the government had a carefully conceived plan to minimize chaos and injury. Sauer’s nonanswer unintentionally made the case for nationwide injunctions.

Adam Serwer: The attack on birthright citizenship is a big test for the Constitution

If plaintiffs want an immediate universal remedy, Sauer contends, they should file a class action instead of individual cases. But many cases are ineligible for class certification under the Federal Rules of Civil Procedure, including all cases brought by states. Nor is there a clear mechanism for speedy emergency relief on behalf of such a class—the very relief that plaintiffs argue is essential.

Proving that point, Sauer admitted that the government might oppose class certification in this very case. He even claimed that the government did not have to follow the rulings of the federal courts of appeals. The only way to stop a Trump-administration policy once and for all—even one that has lost a dozen times in the lower courts—is a final decision on the merits by the U.S. Supreme Court.

As Justice Elena Kagan pointed out, such a rule would allow the government to win by losing. After all, the government could lose case after case in the lower courts—as it has so far in the birthright-citizenship litigation—never seek Supreme Court review, and continue to apply its policies throughout the country. Such a rule would allow all of Trump’s executive orders to go into effect in perpetuity, no matter how flagrantly unconstitutional, save only for those individuals with the capacity to file a lawsuit.

Justice Ketanji Brown Jackson described the government’s argument in a nutshell. You would “turn our justice system, in my view at least, into a ‘catch me if you can’ kind of regime,” she said, “where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights.” If President Trump was listening, he might have thought that sounded about right.