Donald Trump cruelty campaign includes ending birthright citizenship but every child born in the USA is NOT an immigrant WWWTP?

The Stakes of the Birthright-Citizenship Case: The Trump Administration is trying to use the case to stop lower-court judges from issuing “nationwide injunctions"  against its unconstitutional executive orders. By Ruth Marcus published in The New Yorker magazine.

An hour into the oral arguments in the birthright-citizenship case at the Supreme Court last Thursday, Justice Ketanji Brown Jackson offered a tart summary of the Trump Administration’s playbook in what will surely be its losing bid to end the constitutional guarantee. “Your argument,” Jackson told D. John Sauer, the Solicitor General, would “turn our justice system” into a “ ‘catch me if you can’ kind of regime,” in which “everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights.” Jackson kept going: “I don’t understand how that is remotely consistent with the rule of law.”

Nationwide injunctions have been around for years but didn’t become a regular occurrence until 2015. Back then, they were a thorn in the side of a Democratic Administration, as Texas challenged Barack Obama’s executive order granting legal protections to Dreamers, undocumented immigrants who had been brought to the United States as children. A federal judge appointed by George W. Bush issued an injunction against the program—not just in Texas but nationwide. That ruling opened the spigots: twelve such injunctions were issued during the Obama Administration, sixty-four during the first Trump Administration, and fourteen during the first three years of the Biden Administration, according to a 2024 Harvard Law Review study. But the first months of the second Trump Administration have made that pace look leisurely: Sauer told the Justices that the Administration has been hit with forty nationwide orders.

Her diagnosis applies beyond the birthright-citizenship case. The Trump Administration has unleashed a torrent of unconstitutional executive orders and other questionable legal actions; with many of them, its goal seems less to win in the end than to inflict as much damage as possible along the way. That is why it is so determined to use the birthright-citizenship case to stop lower-court judges from issuing “nationwide injunctions”—orders that block Administration policies from taking effect across the country while their legality is hashed out in court. Lower courts, Sauer argued to the Justices, must limit their rulings to the individual parties in the case before them. Others who are harmed by the policies need to find ways to bring their own suits—unless and until the Supreme Court steps in with a definitive ruling. In other words, “catch me if you can.”

On Inauguration Day, shortly after taking an oath to defend the Constitution, Donald Trump sought to rewrite the document by executive fiat. He signed an order that purported to eliminate birthright citizenship for children without a parent who is a U.S. citizen or a permanent resident. (The order applies to children born in the United States more than thirty days after its issuance.) His action violated the clear language of the Fourteenth Amendment, which states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” It contravened a 1940 federal law codifying that protection. It ignored a hundred-and-twenty-seven-year-old Supreme Court precedent making clear that the guarantee applies to the children of noncitizens, and also subsequent rulings reaffirming and expanding that view. “So, as far as I see it, this order violates four Supreme Court precedents,” Justice Sonia Sotomayor told Sauer.

But, Thursday’s arguments, in cases that were brought by blue states, by immigrants’-rights groups, and by individual pregnant women, weren’t really about birthright citizenship; the Trump Administration could have pressed the Justices to tackle that issue, but it chose not to. Instead, the unusual mid-May session, after regular oral arguments had finished for the term, focussed on the technical matter of injunctions. That is an issue on which the Administration has a far stronger argument, although, for the reasons Jackson outlined, an unconvincing one, at least when it comes to birthright citizenship.

Nationwide injunctions have been around for years but didn’t become a regular occurrence until 2015. Back then, they were a thorn in the side of a Democratic Administration, as Texas challenged Barack Obama’s executive order granting legal protections to Dreamers, undocumented immigrants who had been brought to the United States as children. 

A federal judge appointed by George W. Bush issued an injunction against the program—not just in Texas but nationwide. That ruling opened the spigots: twelve such injunctions were issued during the Obama Administration, sixty-four during the first Trump Administration, and fourteen during the first three years of the Biden Administration, according to a 2024, Harvard Law Review study. But the first months of the second Trump Administration have made that pace look leisurely: Sauer told the Justices that the Administration has been hit with forty nationwide orders.

Questions about the practice were exacerbated by litigants’ blatant forum shopping, filing lawsuits in liberal areas when seeking to block Republican Presidents and in conservative jurisdictions to challenge the policies of Democratic Presidents. 

According to the Harvard study, fifty-nine of the sixty-four injunctions against Trump during his first term were issued by judges appointed by Democrats; all fourteen against Biden came from Republican-nominated judges. This is not a good look for the judiciary, and it is a problem for Administrations of both parties. Among those who have criticized the use of such orders are Trump’s Attorney General William Barr and Biden’s Solicitor General, Elizabeth Prelogar.

But although there are legitimate questions about whether lower-court judges have overstepped, there are also, as Thursday’s arguments illustrated, situations in which broad injunctions may be necessary. And birthright citizenship is particularly ill-suited as a vehicle for curbing them. Citizenship is, by definition, a national issue. It makes little sense to have a patchwork nation in which, while the question wends its way through the courts, children born in one state are citizens and those born in another are not.

“Look, there are all kinds of abuses of nationwide injunctions,” Justice Elena Kagan told Sauer. But, she added, “let’s just assume you’re dead wrong” about ending birthright citizenship. “Does every single person that is affected by this [executive order] have to bring their own suit? Are there alternatives? How long does it take?” Kagan warned that the Administration could game the system by simply not appealing to the high court. Sauer suggested that plaintiffs could try bringing class-action suits—which the government would probably oppose. He also said that there should be “appropriate percolation” through the federal courts. His argument wasn’t helped by his unsettling assertion that the government might not even consider itself bound to follow rulings issued against it within the same appellate circuit. Sounding incredulous, Amy Coney Barrett asked, “Are you really going to answer Justice Kagan by saying there’s no way to do this expeditiously?”

Justice Neil Gorsuch, who has been one of the sharpest critics of nationwide injunctions, seemed similarly eager to move quickly to the business of birthright citizenship. No Justice, not even the most conservative, expressed a hint of sympathy for eliminating it. And, by the end of the two-hour-and-sixteen-minute session, it seemed as though the Justices might be thinking that they had blundered by getting sucked into the injunction debate. They had substituted a hard question for an easy call: that, Trump notwithstanding, birthright citizenship is the law of the land.