Supreme court oral arguments begin
The hearing is now underway, with justices hearing oral arguments about enforcement of the Trump administration’s birthright citizenship executive order.
The main question for the justices is whether lower courts should have the authority to block that order on a nationwide basis.
But while the Trump administration has framed this as an effort to limit the scope of such injunctions, ruling in its favor would allow the government to widely enforce its highly controversial birthright citizenship order which lower judges have ruled “blatantly unconstitutional”.
Key events
Joseph Gedeon
After nearly an hour of hearing arguments, justice Elena Kagan dismissed the government’s legal strategy on nationwide injunctions.
“In a case in which the government is losing constantly… it’s up to you whether to take this case to us,” Kagan said, adding: “If I were in your shoes, there’s no way I’d bring this case.”
Justice Thomas comes out against nationwide injuctions
Joseph Gedeon
Justice Clarence Thomas unsurprisingly came out against nationwide injunctions, suggesting they represent a relatively recent and unnecessary development in American law.
“The country survived until the 1960s without universal injunctions,” Thomas said.
He implied the judicial tool is not essential for a functioning legal system, which aligns with the conservative’s long-held opinions against nationwide injunctions. In Trump v. Hawaii during the president’s first term, Thomas called them “legally and historically dubious”.
Justice Kagan questions practicality of Trump order, asking whether everyone affected should bring their own lawsuit?
Joseph Gedeon
Justice Elena Kagan pressed the administration on the practicality of limiting nationwide injunctions – getting into the concerns about citizenship rights becoming a logistical nightmare that could unfold across the country.
“Does every single person that is affected by this EO have to bring their own suit?” Kagan asked. “Are there alternatives? How long does it take?”
It highlighted a fundamental problem with narrowing injunctions in a case involving constitutional rights:
How do we get to the result that there is a single rule of citizenship that is the rule that we’ve historically applied rather than the rule the EO would have us do?
The justice is concerned that without nationwide injunctions, some newborns might be denied citizenship while others receive it, depending on where they’re born or whether their parents could afford legal representation.
Solicitor general calls nationwide injuctions a ‘nuclear weapon’ on executive power
Joseph Gedeon
Solicitor general D John Sauer arguing on behalf of the administration said that nationwide injunctions against presidential actions lack historical precedent and represent an unprecedented “nuclear weapon” on executive power.
Sauer claimed the original 1789 Judiciary Act, which established federal courts’ powers to hear “suits in equity”, never contemplated the sweeping judicial blocks now regularly issued against presidential actions.
“If freezing a likely insolvent debtor’s assets is ‘a nuclear weapon in the law,’” Sauer said. “I don’t know what this is where repeatedly—40 times in this administration—we’re being enjoined against the entire world.”
Robert Tait
Flores said the supreme court had to carefully consider the impact of narrowing the effect of the district court’s injunction.
“Iif they decide to limit the injunction, then suddenly you will have children born who may be stateless, who may be undocumented, and that’s unprecedented,” she said. “There’s no system in place to then go back and retroactively make sure children born in this interim period would be citizens. it’s not a simple technical legal question, it’s it really could split our country in half.”
Robert Tait
Andrea Flores, vice-president of immigration policy at Forward US, told the Guardian that the Trump administration’s attempt to strike down nationwide injunctions risked leaving the US with “a patchwork system” whereby birthright citizenship was accepted in some states but not others.
By limiting the effect of the district court’s nationwide injunction, she said, “it is possible that an unconstitutional order can go into effect in 28 states. And so that would create a different scheme, where, in one state, say, in South Carolina, if you’re the child of an immigrant, you’re not a citizen, but in North Carolina and you’re the child of an immigrant, you are a citizen. So it would create a patchwork citizenship process.”
She added: “There are pros and cons of a district court issuing a nationwide injunction, but this is a perfect case of when it would cause more chaos and more confusion and real human impact if they decided to limit it.”
The text of the 14th amendment is “clear and settled law,” she added, calling the legal underpinning of Trump’s executive order “a fringe theory.”
Justice Sonia Sotomayor cites four supreme court precedents she says Trump’s birthright citizenship executive order violates
Joseph Gedeon
Justice Sonia Sotomayor opened the challenge to the administration’s position against birthright citizenship by citing four supreme court precedents she believes Trump’s executive order violates.
“Because the argument here is that the president is violating … not just one, but by my count, four established supreme court precedents,” Sotomayor said during oral arguments.
She listed the cases: one establishing that “fealty to a foreign sovereign doesn’t defeat your entitlement to citizenship as a child”, another confirming citizenship for children born to parents in the US illegally, a third establishing citizenship rights for children born on US territory even when parents were “stopped at the border”, and a fourth protecting citizenship for children even when “parents secured citizenship illegally”.
“You are claiming that not just the supreme court, that both the supreme court and no lower court can stop an executive from universally violating those holdings by this court,” Sotomayor said.
Hundreds of protesters gather outside supreme court
Robert Tait
Hundreds of protesters are congregating outside the US supreme court for a rally spearheaded by immigration group Casa. One speaker, Andy Zee from Refuse Fascism, called for Donald Trump to be removed from the White House, saying: “Trump must go now. Too many people in this country think it can’t happen here, “ he said in a speech.
“The ability to hold rallies like this hangs in the balance. The rule of law really is under assault. Fascism means whole groups are being demonised.”
He said the Republican party had been captured by what he called “Trump Maga fascism.” Meanwhile, the Democrats were being too moderate by “upholding the norms that Trump is shredding” while hoping it could win back power in future elections.
“This is dangerous bullshit,” he said.” Do you think we are going to have a fair election in 2026, seriously? Not as long as Trump feels threatened. It won’t happen. What we need to do now is spread the message that Trump must go now.”
Supreme court oral arguments begin
The hearing is now underway, with justices hearing oral arguments about enforcement of the Trump administration’s birthright citizenship executive order.
The main question for the justices is whether lower courts should have the authority to block that order on a nationwide basis.
But while the Trump administration has framed this as an effort to limit the scope of such injunctions, ruling in its favor would allow the government to widely enforce its highly controversial birthright citizenship order which lower judges have ruled “blatantly unconstitutional”.
The Trump administration is not the first to complain about nationwide injunctions, with both Democratic and Republican presidents having seen their policies stymied by them. Per NPR:
But University of Notre Dame law professor Samuel Bray admits there is little wiggle room in terms of a principle that would weed out unjustified nationwide injunctions, and leave in place the ones that are needed to preserve the status quo and prevent the continuation of harm.
Still, he thinks nationwide injunctions, powered by overt judge shopping—in which partisans often bring cases before judges they think will agree with them—do more harm than good. And he contends that because Trump is so “flagrantly wrong” about birthright citizenship, the court could acknowledge that but use Thursday’s case to get rid of nationwide injunctions altogether.
There are three cases, which the court will hear consolidated as one today: Trump v CASA, filed by immigrants’ rights groups and several pregnant women in Maryland; Trump v Washington, filed in Seattle by a group of four states; and Trump v New Jersey, filed in Massachusetts by a group of 18 states, the District of Columbia and San Francisco.
Supreme court to hear historic arguments in birthright citizenship dispute
The supreme court will shortly hear oral arguments in the long-simmering issue of Trump’s plan to end birthright citizenship through a radical interpretation of the US constitution’s 14th amendment – a once-fringe issue that is now taking centre stage in the nation’s highest court.
The arguments, however, will relate primarily to a different issue entirely – a legal question on the power of judges to rein in the power of the executive branch by blocking presidential policies across the country. The outcome will have profound implications for the Trump administration’s use of executive power to advance its agenda, extending well beyond immigration policy.
The supreme court – which has a 6-3 conservative majority, including three Trump appointees – is focusing only on the question of whether lower-court judges have the authority to block nationwide the Trump administration’s policies, as has happened in three cases relating to birthright citizenship. On this, it is possible the president could secure a huge victory affecting many of the lawsuits against his administration, even if the court ultimately strikes down his underlying birthright citizenship executive order.
Arguments were due to start at 10am ET. You can listen along here.
What have the supreme court justices previously said about universal injuctions?
We’ll of course get a clearer sense of what the supreme court is likely to do once oral arguments get under way later, but several of the justices have in the past questioned the appropriateness of the power of individual judges to issue nationwide injunctions.
A caveat is that this doesn’t necessarily suggest that all justices who have voiced concerns are aligned with conservative calls to end universal injunctions, as some concerns are more constitutional while others are more pragmatic, but they are worth noting.
One case in which the court majority avoided the issue was the challenge to the Trump’s first-term travel ban targeting mostly majority Muslim countries. The supreme court ultimately upheld the policy, but in a concurrence, Justice Clarence Thomas, a conservative, warned that court might need to end the practice of nationwide injunctions more generally.
In a concurring opinion, he called universal injunctions “legally and historically dubious”. Moreover, he added, they are “beginning to take a toll on the federal court system – preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the executive branch”.
Justice Neil Gorsuch, another conservative, echoed the sentiment in another case, writing that the “routine issuance of universal injunctions is patently unworkable”. Joined by Thomas and another conservative justice, Samuel Alito, Gorsuch wrote an opinion concurring in the court’s order allowing Idaho to generally enforce its ban on gender-affirming care for minors. He called the justices’ decision to put the lower court’s order on hold “to the extent it applies to nonparties, which is to say it provides ‘universal’ relief” – “a welcome development”.
Per the Scotus blog: “In March of this year, Alito also weighed in, in a dissent from the court’s denial of the Trump administration’s request to lift an order by a federal judge requiring the state department and USAID to pay nearly $2bn in foreign-aid reimbursements for work that had already been done. He observed – in an opinion joined by Thomas, Gorsuch and conservative Justice Brett Kavanaugh – that the government ‘has a strong argument that the district court’s order violates the principle that a federal court may not issue an equitable remedy that is “more burdensome than necessary to” redress the plaintiff’s injuries’. But in this case, Alito wrote, the district judge’s order ‘functions as a “universal injunction defying these foundational” limits on equitable jurisdiction’.
“And in a statement regarding the court’s rejection of Florida’s request to be allowed to enforce a state law that makes it a misdemeanor to allow children at drag performances, Kavanaugh (joined by conservative Justice Amy Coney Barrett) suggested that the power of district courts to enter a universal injunction ‘is an important question that could warrant our review in the future’.”
But there isn’t a simple liberal-conservative divide on this issue. Speaking at a university event in 2022, Justice Elena Kagan, a liberal, addressed how nationwide injunctions – when coupled with forum shopping – were hamstringing administrations of both parties, asserting: “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 that it takes to go through the normal process.”
And even on the court’s left wing, Justice Ketanji Brown Jackson acknowledged in a 2024 opinion that universal injunctions raised “contested and difficult” questions, but stressed the answer was not “straightforward” and that the court should take its time in resolving it.
Here’s Trump’s full post:
Big case today in the United States Supreme Court. Birthright Citizenship was not meant for people taking vacations to become permanent Citizens of the United States of America, and bringing their families with them, all the time laughing at the ‘SUCKERS’ that we are! The United States of America is the only Country in the World that does this, for what reason, nobody knows – But the drug cartels love it! We are, for the sake of being politically correct, a STUPID Country but, in actuality, this is the exact opposite of being politically correct, and it is yet another point that leads to the dysfunction of America. Birthright Citizenship is about the babies of slaves. As conclusive proof, the Civil War ended in 1865, the Bill went to Congress less than a year later, in 1866, and was passed shortly after that. It had nothing to do with Illegal Immigration for people wanting to SCAM our Country, from all parts of the World, which they have done for many years. It had to do with Civil War results, and the babies of slaves who our politicians felt, correctly, needed protection. Please explain this to the Supreme Court of the United States. Again, remember, the Civil War ended in 1865, and the Bill goes to Congress in 1866 – We didn’t have people pouring into our Country from all over South America, and the rest of the World. It wasn’t even a subject. What we had were the BABIES OF SLAVES. Thank you for your attention to this matter. Good luck with this very important case. GOD BLESS THE U.S.A.!
‘We are a stupid country’: Trump weighs in ahead of supreme court arguments on birthright citizenship
Despite being half a world away with a packed schedule, Donald Trump found the time to weigh in on the upcoming supreme court arguments, posting on his Truth Social platform that “Birthright Citizenship was not meant for people taking vacations to become permanent Citizens of the United States of America, and bringing their families with them, all the time laughing at the ‘SUCKERS’ that we are!”
He said the current policy makes the US “a stupid country”, adding: “The drug cartels love it!”
He went on to outline the argument his administration has been making since he signed his executive order trying to end birthright citizenship – that the 14th amendment was meant to grant citizenship to the children of enslaved people. “It had nothing to do with Illegal Immigration,” he wrote.