On Thursday (May 15), the Supreme Court heard three cases— consolidated under the name Trump v. CASA— which concern President Trump’s executive order on birthright citizenship.
Trump’s executive order at the heart of this case targeting birthright citizenship is very unlikely to be found lawful.
As Judge John Coughenour, a Reagan appointee who was the first judge to block the order said, “I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is.”
However, the specific procedural legal questions before the Court have little to do with birthright citizenship.
At least three courts issued “nationwide injunctions” against Trump’s citizenship order, meaning that lower court judges handed down orders that bind the entire federal government and prohibit Trump from cancelling anyone’s citizenship anywhere under his executive order.
The question of whether a single unelected federal trial judge may issue an order that binds the entire country is hotly disputed.
For 174 years after constitutional governance began in 1789, no federal judge issued a nationwide injunction.
Courts slapped the first Trump administration with 64 nationwide injunctions, more than half of all the injunctions entered between 1963 and 2023— that is, over six decades. Democrat-nominated judges issued 92% of these orders.
Early in Trump’s second administration, courts issued such injunctions at an historic pace. During February alone, district court judges, most nominated by Democrats, ordered 15 such injunctions—more than President Biden faced in his first three years in office.
Certainly, there are some willful progressive judges who are blocking Trump’s agenda. But Trump has been purposely edgy in his second term, strategically violating laws in the hope of getting the current Supreme Court to invalidate dubious limitations on presidential power and to reverse precedent.
Nationwide injunctions are a distortion of our constitutional order. In 2020, conservative Justice Neil Gorsuch persuasively argued in a concurring opinion that these nationwide orders must be reined in.
There are currently 630 district court judges, plus hundreds of semiretired senior judges in 94 federal districts throughout the nation who hear cases.
Gorsuch argued that injunctions are “meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit.”
When one judge can go much further, halting an entire federal policy nationwide, that creates an asymmetry.
“In a world with nationwide injunctions, plaintiffs can shop around for the one judge in America who is most likely to be sympathetic to their cause, and potentially secure a court order no other judge would hand down,” Gorsuch wrote.
Justice Clarence Thomas in a 2018 concurrence portrayed nationwide injunctions as so counter-constitutional that Congress could not legitimate them. In his opinion, they need eradication not restraint.
This “judge-shopping” also became a problem for the Biden administration, with a group of judges in Texas who issued injunctions against a wide range of liberal policies.
It’s not just conservative jurists who take issue with this practice.
In 2022, Justice Elena Kagan, the Supreme Court’s most formidable progressive voice, asserted: “It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years it takes to go through the normal process.”
The power to issue a nationwide injunction makes a single district judge as powerful or more powerful than a majority of Supreme Court justices. At the same time, a blanket rule against nationwide injunctions would render many court orders worthless.
They serve as a vital check on presidential power. The Supreme Court may fashion a “middle ground.”
Reforms proposed include requiring multijudge panels for nationwide injunctions, placing limits on “judge-shopping”, and sending all nationwide injunctions to the D.C. Circuit Court.
The Court’s decision should reveal how justices will determine which nationwide injunctions are allowed and which are forbidden.
