The ‘Birthright Citizenship’ Case and Federalist No. 78

The Supreme Court heard arguments last week in Trump v. CASA, the “birthright citizenship case”. Many outlets have (quite aptly) noted the oral arguments didn’t focus on whether children born to aliens in this country derive citizenship under the 14th amendment so much as on the power of federal district court judges to issue “nationwide” or “universal injunctions” to shut down executive branch policies indefinitely. Time to take a look at one of our key founding documents, Federalist 78, penned by Alexander Hamilton and captioned “The Judicial Department”.

Executive Order 14160

On January 20, 2025 — inauguration day — President Trump issued Executive Order (EO) 14160, “Protecting the Meaning and Value of American Citizenship”, which states:

It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

As I explained in analyzing that EO on January 29, “To the best of my knowledge, up until Trump issued that order, the Social Security Administration and the State Department would issue an SSN and a passport, respectively, to any person with proof that he or she was born in the United States.”

If that EO were to take effect, SSA and DOS would make individualized determinations as to which children born in this country should receive such documents — though what that process would look like remains undetermined.

The first sentence of section 1 of the 14^th amendment to the U.S. Constitution controls birthright citizenship, and it states, rather obliquely: “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.”

The question then is whether, for example, the children of aliens here unlawfully or on nonimmigrant visas are “subject to the jurisdiction of” the United States.

The leading case on the issue, U.S. v. Wong Kim Ark, was issued in 1898 and involved a national of China born in San Francisco to legal residents of this county, the 19^th century equivalent to green-card holders. The Court held that Wong was, in fact, a citizen.

While that opinion is quite broad, stating that any child here not born to parents in an invading force is a citizen, much of that opinion is dicta, and arguably does not settle the issue of birthright citizenship with respect to other children born to parents in less settled statuses.

CASA v. Trump

The day after that EO was issued, CASA — “a nonprofit membership organization headquartered in Prince George’s County, Maryland, with offices in Maryland, Virginia, Pennsylvania, and Georgia” — filed a complaint in federal district court in Maryland, on its behalf and on behalf of “individuals who are pregnant or planning to give birth, and whose U.S.-born children would be denied U.S. Citizenship under the Executive Order”.

That complaint argued, inter alia, that the EO violated the 14^th amendment and section 301(a) of the Immigration and Nationality Act (INA), and was thus ultra vires. The plaintiffs asked the court to enjoin the administration from enforcing the EO.

On February 5, the judge assigned to the case issued a Memorandum Opinion, in which she granted a nationwide injunction barring enforcement of the order anywhere in the United States. Notably, the judge held:

A nationwide injunction against the categorical policy in the Executive Order is appropriate. It also is necessary because the policy concerns citizenship — a national concern that demands a uniform policy. … A nationwide injunction is appropriate and necessary.

The government appealed that decision to the Fourth Circuit and sought a stay pending appeal. On February 28, a three-judge panel of the Fourth Circuit denied that stay, with Judge Paul Niemayer dissenting from the decision of his two colleagues.

As the judge explained:

The government does not seek a stay with respect to the injunction’s provision of relief to the parties in this case. It only seeks to stay the effort by the district court to impose its injunction nationwide to afford relief to persons beyond the District of Maryland. By its terms, the district court’s order seeks to apply its injunction for the benefit of hundreds of thousands of individuals “throughout these United States.” In effect, therefore, the government simply seeks to cabin the district court’s injunction to the parties in the District of Maryland. In this posture, the government does not address the merits of the plaintiffs’ case, and I express no view here on the merits.

Referring to the nationwide injunction granted by the district court, Judge Niemayer opined:

The judicial unseemliness of such a broad extension of judicial power is highlighted by the fact that within “these United States” — the coverage of the district court’s injunction — at least four cases in other United States District Courts are addressing similar challenges to Executive Order 14160.

…

While a broad injunction having de facto national effect might be appropriate in some circumstances, it is not so here, in my view. The specifically identified plaintiffs here claim harm that can only be redressed by injunctive relief, and the other district courts across the country are likewise addressing similar claims of harm.

On March 13, DOJ filed an application with the Supreme Court for a partial stay of the district court’s nationwide injunction, arguing:

This Court should declare that enough is enough before district courts’ burgeoning reliance on universal injunctions becomes further entrenched. The Court should stay the district courts’ preliminary injunctions except as to the individual plaintiffs and the identified members of the organizational plaintiffs (and, if the Court concludes that States are proper litigants, as to individuals who are born or reside in those States). At a minimum, the Court should stay the injunctions to the extent they prohibit agencies from developing and issuing public guidance regarding the implementation of the Order. Only this Court’s intervention can prevent universal injunctions from becoming universally acceptable.

The Court set the matter for argument on May 15, and consolidated CASA with two other cases, Trump v. Washington and Trump v. New Jersey.

As SCOTUSblog explained, the issue at that argument was: “Whether the Supreme Court should stay the district courts’ nationwide preliminary injunctions on the Trump administration’s Jan. 20 executive order ending birthright citizenship except as to the individual plaintiffs and identified members of the organizational plaintiffs or states.”

Judge James Ho Weighs In

In a footnote in his opinion in a death penalty case, In Re Wescott, Judge James Ho — a frontrunner for a future seat on the High Court — offered his own insights into district court nationwide injunctions and their impact on the courts.

He explained:

because of concern with the unilateral authority of district judges that there are proposals to limit certain district court actions, such as universal injunctions, to three-judge panels. As a respected former member of this court has observed, when litigants “need find only a single district judge who agrees with them,” “[t]hat lone judge issuing a nationwide injunction effectively overrules numerous judges who may have already rejected the same claim.” … “It also subverts our judicial hierarchy as a nationwide injunction issued by a single district judge has greater effect than a court of appeals’ decision on the same issue in a noninjunction posture (that decision would only be binding within the circuit).”

The logic is simple, and I would add that when a circuit court panel issues an injunction, at least two of three judges must agree and that injunction is usually only effective in the jurisdiction of that court. When the Supreme Court does it, five of nine must agree.

But just one district court judge at the bottom of the federal court ladder can issue a nationwide injunction binding the rest of the federal judiciary — and the federal government.

Just how the Supreme Court could limit nationwide injunctions was the subject of much debate at that May 15 argument, with some justices concerned the Trump administration may not appeal a more limited injunction to a higher court and thus force litigants to file in numerous different courts.

Justice Kavanaugh, on the other hand, suggested that, as CNN put it, “class-action lawsuits would suffice for allowing the challengers to Trump’s executive order to get broad relief from the courts”, brushing away “the suggestion from challengers that relying on class certification as a tool raises many of the same issues as nationwide injunctions the president is complaining about”.

Federalist 78

Which brings me to Alexander Hamilton’s explanation of how the drafters of the Constitution envisioned the federal courts would operate. In Federalist Paper number 78 he explained:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.

He continued:

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. … [Emphasis added.]

As an aside, keep that last line in mind when commentators fret over a “constitutional crisis” in the unlikely event President Trump disregards a federal court order. Hamilton all-but signaled it could happen and was rather blasé about the prospect; the ellipsis is his, not mine, and a new paragraph follows.

Respectfully, if any one of the 670 district court judges in any of the nation’s 94 judicial districts can halt executive policy on a universal basis, the judiciary is no longer “the least dangerous to the political rights of the Constitution”, but the strongest branch and the biggest potential threat to the will of the people.

A part of me suspects Trump issued his birthright citizenship EO, at least in part, knowing a resulting case would force the justices to confront nationwide injunctions, which slowed down his agenda during his first term (86 injunctions). As of April 29, there were an estimated 25. Expect a decision by the end of June.