SCOTUS Issues ‘Birthright Citizenship’ Opinion that Says Nothing About Birthright Citizenship

On June 27, the Supreme Court issued its opinion in Trump v. CASA — the “birthright citizenship” case. As I explained in May, the justices wouldn’t be deciding whether the children of illegal aliens are or aren’t citizens, because the only question before the Court was whether district courts could issue so-called “nationwide” or “universal” injunctions blocking executive actions. Long story short: They can’t.

EO 14160. On his first day back, 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.

Section 1 of the 14th amendment to the U.S. Constitution governs birthright citizenship, and it begins: “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.”

EO 14160 therefore hinges on the question of what the term “subject to the jurisdiction” of the United States means, and whether it applies to the children of aliens here unlawfully or on temporary visas.

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 the U.S. District Court for the District of Maryland (D. Md.), 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” EO 14160.

Among other things, that complaint argued that the EO violated the 14th amendment and section 301(a) of the Immigration and Nationality Act (INA) and thus exceeded statutory and constitutional authority (i.e., it was ultra vires).

Accordingly, the plaintiffs asked the D. Md. to enjoin the administration from enforcing the EO.

CASA was assigned to Judge Deborah Boardman, and on February 5 she issued a memorandum opinion granting a nationwide injunction barring enforcement of the order, not just in Maryland but anywhere in the United States.

Notably, Judge Boardman 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 U.S. Court of Appeals for 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 he 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.

In referring to the nationwide injunction granted by the D. Md., Judge Niemayer concluded:

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.

DOJ’s Application to the Supreme Court. 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. [Emphasis added.]

The Justices’ June 27 Opinion. The Court set the matter for oral argument on May 15, and consolidated CASA with two other cases raising the same issues, Trump v. Washington and Trump v. New Jersey.

As noted at the outset, the sole question before the Court was whether it should stay the nationwide portion of the injunctions barring enforcement of EO 14160 in these three cases for anyone other than the specific parties (individuals and the organizational plaintiffs) in those cases.

Justice Barrett issued the opinion of the Court, which Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Gorsuch joined, with Justice Thomas issuing a concurrence that Justice Gorsuch joined and Justice Alito issuing a concurrence that Justice Thomas joined.

Did I mention that Justice Kavanaugh issued a concurring opinion that nobody joined? No matter. Justices Kagan, Sotomayor, and Jackson were in the dissent.

It’s a massive opinion (119 pages), and as the majority explains:

Some say that the universal injunction “give[s] the Judiciary a powerful tool to check the Executive Branch.” … But federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them. When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.

The Government’s applications to partially stay the preliminary injunctions are granted, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue. [Citations omitted.]

Or as Justice Thomas put it more succinctly in his concurrence:

For good reason, the Court today puts an end to the “increasingly common” practice of federal courts issuing universal injunctions. … Lower courts should carefully heed this Court’s guidance and cabin their grants of injunctive relief in light of historical equitable limits. If they cannot do so, this Court will continue to be “dutybound” to intervene.

Lingering Concerns. You may want to curb your enthusiasm if you — like the Trump administration — oppose “nationwide”, “universal”, or “galactic” injunctions, however, because in his concurrence, Justice Alito warns that the Court’s opinion fails to address two other major questions: “the availability of third-party standing and class certification”.

Third-party standing allows an individual or organization not directly affected by a government action to sue on behalf of someone who is. In Washington and New Jersey, that organization was those respective states, and Justice Alito warns:

So long as third-party standing doctrine remains good law, federal courts should take care to apply these limitations conscientiously, including against state plaintiffs. That is especially so in cases such as these, in which the parties claiming third-party standing (i.e., the States) are not directly subject to the challenged policy in the relevant respect and face, at most, collateral injuries.

Federal Rule of Civil Procedure 23 governs class actions, and although that rule is rigorous, some have complained the lower courts have been lax in applying it, particularly in immigration cases.

In that vein, Justice Alito counsels:

Putting the kibosh on universal injunctions does nothing to disrupt Rule 23’s requirements. Of course, Rule 23 may permit the certification of nationwide classes in some discrete scenarios. But district courts should not view today’s decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23. Otherwise, the universal injunction will return from the grave under the guise of “nationwide class relief,” and today’s decision will be of little more than minor academic interest.

Long story short: Nationwide injunctions, particularly in immigration cases, aren’t supported by law and are no more. But lower courts might try to sneak around the Court’s opinion in CASA by expanding third-party standing or bypassing limits on class-action relief.