Supreme Court Hears Arguments in Birthright Citizenship Cases

Here is the transcript and audio to the oral arguments.

The arguments focused on the question whether the nationwide injunctions entered by three district courts barring implementation of President Trump’s executive order denying undocumented and nonimmigrant visa holders from citizenship by birth in the United States. 

My sense is that, even though the issue is technically not before the Court, there is little indication that the Justices will disturb the settled law that the Fourteenth Amendment confers U.S. citizenship on persons born in the United States (with an exception for the children of foreign diplomats).  Justice Sotomayor highlighted several times that the executive order conflicted with three Supreme Court decisions and an act of Congress. 

The Justices grappled with balancing the (1) desire to efficiently and quickly halt the implementation of an unconstitutional executive action; with (2) restricting to a certain degree the federal judicial power to enter nationwide injunctions.  Justice Kavanaugh suggested requiring certification of a class action under Federal Rule of Civil Procedure 23, which have a number of requirements, for nationwide injunctions.  Justice Jackson found relevant to the question that the injunctions entered by the lower courts prohibited the President from acting unconstitutionally.  The discussion among the Justices of resolving the citizenship issue in individual actions demonstrated to me how piecemeal litigation would be slow, burdensome, and an ineffective remedy for the unconstitutional executive order.

I was surprised that the Justices did not seem overly hostile to nationwide injunctions — at least in this case with a pretty clearly unconstitutional executive order.

Some commenters on the SCOTUSBlog live feed thought that the U.S. government’s attorney was the decisive loser in the arguments.

Amy Howe recaps the arguments for SCOTUSBlog.  Her concluding thought:  “Notably, although the court’s liberal justices were the most outspoken in their belief that Trump’s order violates the Constitution, there was no support voiced by the other justices for [the U.S. government’s] contention that it does not. The only real question was when, not if, the justices will reach that question. “

For commentary on the arguments, listen here.

KJ