Supreme Court justices indicated Thursday they were deeply split over whether to restrict lower court judges from issuing sweeping nationwide injunctions as they heard arguments over the Trump administration’s bid to lift a stay on the president’s executive order limiting birthright citizenship.
In a session lasting two-and-a-half hours, the justices largely skipped debating the merits of Trump’s Day One action, which would end the practice of automatically recognizing US-born children of illegal immigrants as citizens, and instead examined whether a single federal judge could or should be allowed to block such orders from taking effect.
A group of 22 states had sued the Trump administration over the executive order, and the president’s team was hit with three injunctions issued by federal judges in Maryland, Massachusetts and Washington state.
Three separate appeals courts had roundly rejected efforts to throw out those injunctions.
“There are all kinds of abuses of nationwide injunctions,” liberal Justice Elena Kagan asked Sauer, “but I think that the question that this case presents is, that if one thinks that it’s quite clear that the [executive order] is illegal, how does one get to that result on your set of rules without the possibility of a nationwide injunction?”
Justices across the political spectrum — including conservatives Neil Gorsuch and Clarence Thomas as well as liberal Ketanji Brown Jackson — have griped publicly about the frequent use of nationwide injunctions among lower court judges.
“The underlying point,” said conservative Justice Brett Kavanaugh, “is that these district judges aren’t just throwing these universal injunctions, they are finding these actions illegal because they’re exceeding existing authority. And oftentimes we are too.”
In March, a tally by the Harvard Law Review found that lower courts lodged at least 64 national injunctions against Trump during his tenure, compared to just six lodged against former President George W. Bush, 12 against former President Barack Obama and 14 against former President Joe Biden during their entire presidencies.
“This is a bipartisan problem that has now spanned the last five presidential administrations,” Sauer contended. “Universal injunctions exceed the judicial power granted in Article III, which exists only to address the injury to the complaining party.
“They encourage rampant forum shopping. They require judges to make rushed, high-stakes, low-information decisions.”
Several legal experts told The Post this week that the universal injunction issue before the high court is unique because Trump’s actions on birthright citizenship are on such shaky legal ground.
“This case is very different from a lot of our nationwide injunction cases in which many of us have expressed frustration at the way district courts are doing their business,” Kagan observed at one point.
“Legal questions are hard and they’re complicated, and different courts would decide them differently,” she added. “Because of the forum selection process, a party goes to one place in the first Trump administration, it was all done in San Francisco and then in the next administration, it was all done in Texas. And there is a big problem that is created by that mechanism.”
Kagan’s line of questioning impressed Gorusch, who quipped that she “asked my questions better than I could have.”
Justices also fretted over the consequences of doing away with universal injunctions altogether, as the Trump administration advocated.
“You claim that there is absolutely no constitutional way to stop a president from an unconstitutional act — a clearly, indisputably unconstitutional taking every gun from every citizen. We couldn’t stop it,” said liberal Justice Sonia Sotomayor, giving an example of a president enacting nationwide firearm confiscation.
Sauer suggested that class actions lawsuits could be pursued as an alternative to injunctions, which would require lawyers to go through a more rigid process to allow their plaintiffs to sue on behalf of others who were aggrieved by the same policy.
“I am nervous about the government’s suggestion that it’s going to oppose our class certification motion,” said Kelsi Corkran of the Institute for Constitutional Advocacy & Protection at Georgetown Law School, who argued on behalf of immigration rights organizations.
“If we were to file one, class certification can be very discovery-intensive. It could be the sort of thing that really delays our plaintiffs from getting relief in time.”
Jeremy Feigenbaum, representing the states as New Jersey Solicitor General, acknowledged the need to rein in the lower courts and laid out a three-pronged test to determine whether universal injunctions are appropriate: whether alternative remedies are practical and whether congressional authorization and alternative forms of non-party relief are available.
“This injunction was properly designed to ensure that the states would get relief for our own Article III injuries as we suffer significant pocketbook and sovereign harms from the implementation of this executive order,” he said, warning there would be “unprecedented chaos on the ground” if the order was allowed to stand.
Conservative Justice Amy Coney Barrett emerged as a vital swing vote, and seemed particularly perturbed by Sauer’s response to Justice Elena Kagan about whether the Trump administration would adhere to an appeals court ruling.
“Did I understand you correctly to tell Justice Kagan that the government wanted to reserve its right to maybe not follow a Second Circuit precedent, say, in New York, because you might disagree with the opinion?” she asked, sounding stunned.
Sauer replied, “Generally, we follow.”
Chief Justice John Roberts was largely quiet during arguments but mused that the Supreme Court could help address the dilemma of universal injunctions by acting quicker to resolve disputes over them.
“Is there any reason in this particular litigation that we would be unable to act expeditiously?” he asked.
Meanwhile, Thomas leaned toward siding with the White House, saying at one point: “We survived until the 1960s without universal injunction.”
The consolidated case of Trump v. CASA, Trump v. Washington and Trump v. New Jersey is expected to be decided by the end of June.
