Since the beginning of the second Trump administration, federal judges across the nation, and many others who can simply read the text of the Constitution, have been of one voice: The president’s ahistorical effort to end birthright citizenship for the children of undocumented immigrants is unconstitutional. That conclusion, judges appointed by Democrats and Republicans have ruled, applies across the nation. Yet in a rush to judgment, acting at the behest of an administration that wants to make life miserable for noncitizens as quickly and rashly as possible, the Supreme Court on Friday failed to recognize that settled reality.
For more than a decade, going as far back as the presidency of Barack Obama, the Supreme Court has been grappling with what to do with nationwide, “universal” injunctions. At the time, attorneys general in Texas and other Republican-led states began joining as a group to challenge the president’s policies in the courts—from guidance on how to make bathrooms more inclusive for transgender students to protections for the undocumented parents of US citizens. And federal judges in Texas aided this effort by issuing sweeping court rulings that would not only make the injunctions applicable in the complaining states, but everywhere. Joe Biden had a really hard time governing thanks to these nationwide rulings, many of them by Trump-appointed judges.
Several presidencies later, the Republican supermajority on the Supreme Court on Friday finally settled the issue: These universal injunctions “likely exceed the equitable authority that Congress has granted to federal courts.” Yet in an attempt to bring order to this governance-by-litigation, the Supreme Court has only made matters worse. And among its last orders of business before its summer recess, the justices ensured that confusion and uncertainty will reign in all 50 states—by refusing to stop dead in its tracks Donald Trump’s patently unlawful executive order denying birthright citizenship to the children of noncitizens who may be here without legal status.
The 6-to-3 decision, dressed in legalese and procedural language, is shocking in that it makes no effort to even rule on the unconstitutionality of what Trump’s order, unprecedented in our nation’s history, attempted: a wholesale repudiation of the citizenship clause of the 14th Amendment to the Constitution, which for more than 150 years has guaranteed that everyone born in the US, independent of immigration status, is a citizen of this country. Six courts, across the board, had no problem doing that—swiftly blocking Trump from proceeding with this plan not long after he announced it on his first day in office.
You wouldn’t know any of this by reading the highly technical opinion written by Trump-appointed justice Amy Coney Barrett, a former law professor to whom Chief Justice John Roberts assigned the watershed ruling. Instead, she studiously avoids what’s staring her in the face—by curtly noting that “the birthright citizenship issue is not before us.” In so doing, she’s casting aside worries, and the real-world effect, that the Court’s ruling will cause: a country where only those who rush to court to challenge a clearly illegal order under our laws will have relief from it, and those who can’t—for various reasons, perhaps fear of getting rounded up, or even deported for not falling in line with the government’s wishes—will simply suffer in hiding or in silence.
Surprising no one, Trump reacted with glee, noting how litigants in “a very liberal state” or “liberal judges” won’t be able to “tie up a whole country for years” as a result of these injunctions. Barrett’s “decision was brilliantly written, from all accounts,” he added during a press briefing at the White House. He said the administration would also pursue actions that had been previously blocked by broader-than-necessary injunctions. “This should send a chill down the spine of every American,” Greg Casar, a Democratic congressman from Texas, wrote on X. “Birthright citizenship was added to the Constitution at the end of the Civil War. It’s a basic idea: When you’re born in America, you’re an American. That’s what Trump is trying to take away.”
To be clear: Today’s ruling goes beyond birthright citizenship. Trump, or a future president, could order tomorrow that all his political enemies be rounded up and imprisoned without any process at all. Does that mean, under today’s ruling, that no one can sue to stop this flagrantly unconstitutional policy in its entirety? As Ketanji Brown Jackson puts it in a solo dissent: “The majority today says that, unless and until the other political rivals seek and secure their own personal injunctions, the Executive can carry on acting unconstitutionally with respect to each of them, as if the Constitution’s due process requirement does not exist.”
