The Supreme Court on April 17 left in place lower court orders blocking President Donald Trump’s policy of limiting birthright citizenship for certain individuals and scheduled oral arguments in the case for next month.
It is unusual for the Supreme Court to hear oral arguments in May, just weeks before it begins its summer recess.
The justices will actually hear three separate cases on the matter at once. They are Trump v. CASA Inc., Trump v. Washington, and Trump v. New Jersey. All three cases were appealed to the Supreme Court on March 13.
In filings for the three appeals, the Department of Justice did not ask the Supreme Court to rule on the constitutionality of the executive order itself, although it acknowledged that the birthright citizenship question raises “important constitutional questions with major ramifications for securing the border.”
Instead, the department made what it called a “modest” request.
“While the parties litigate weighty questions, the Court should ‘restrict the scope’ of multiple preliminary injunctions that ‘purport to cover every person ... in the country,’ limiting those injunctions to parties actually within the courts’ power,” it wrote.
According to Trump’s executive order, an individual born in the United States is not “subject to the jurisdiction thereof” if that person’s mother was unlawfully present in the country and the individual’s father was not a U.S. citizen or lawful permanent resident at the time of the person’s birth.
It also states that the privilege of U.S. citizenship does not apply to an individual whose mother’s presence was lawful but temporary and whose father was neither a citizen nor a lawful permanent resident at the time of that individual’s birth.
The executive order prompted debate over the meaning of the 14th Amendment’s citizenship clause, which states, “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.”
Critics of Trump’s order have cited the Supreme Court’s landmark 1898 decision in United States v. Wong Kim Ark, in which the court held that the 14th Amendment granted birthright citizenship to a Chinese man whose parents were legally present in the United States.
Quoting the decision, then-acting Solicitor General Sarah Harris previously told the Supreme Court that the Wong Kim Ark precedent applied only to children whose parents were permanently domiciled in the United States.
Boardman wrote that she was issuing a nationwide injunction against the executive order because “only a nationwide injunction will provide complete relief to the plaintiffs” in the case.
Nationwide injunctions, also known as non-party or universal injunctions, set policy for the entire country.
Such injunctions have become controversial in recent years as they have become increasingly common. Since Trump began his second term, many federal district judges have issued injunctions blocking his policies, leading to calls from congressional Republicans to impeach district judges and restrict their injunction-granting powers.
Wielding national injunctions in that way “undermines the system of government,” the bill’s sponsor, Rep. Darrell Issa (R-Calif.), said on the House floor on April 8.
“It empowers individual, unelected judges to dictate national policy and to thwart the Constitution to take rights reserved to Congress and the president of the United States,” he said.
The proposed No Rogue Rulings Act would narrow the scope of preliminary relief that district court judges can grant, limiting it to the actual parties in the lawsuit.
