BREAKING: Supreme Court questions Trump admin's arguments against birthright citizenship, nationwide injunctions

The Supreme Court on Thursday heard arguments over birthright citizenship as well as the legality of nationwide injunctions as protesters chanted for "justice" outside, saying, "if we don't get it, shut it down!" As part of the birthright case, the Trump administration filed an application for the court to hear arguments against nationwide injunctions, such as the one that was issued by the federal court in Washington state over birthright citizenship, and this could impact the practice of nationwide injunctions across the board.

It was the issue of nationwide injunctions that the Court focused on, trying to sort out the Trump administration's argument that nationwide injunctions should not be permitted. The argument from counsel John Sauer is that under Article 3, a court's decision should only be for those in the case before them and that, if that ruling is to apply nationally, it should go through the lower courts, as brought by additional plaintiffs, and then arrive at the Supreme Court, which would create a national precedent.

This would mean that multiple plaintiffs would be forced to bring their cases to the lower courts so those courts could determine if those plaintiffs were subject to the relief that had already been granted to others by other lower courts. Justice Kagan noted that, in this case of birthright citizenship, where the Trump administration has continued to lose in lower courts, the government would simply apply the executive order to those potential plaintiffs of the same class (children born to illegal immigrants) who were not able to bring their case before a court for reasons of access or finances.

Trump administration executive orders have been blocked across the country in lower courts that issued nationwide injunctions to prevent Trump's initiatives from moving forward. Nationwide injunctions have been a practice since the 1960s and have been a thorn in the side of multiple presidential administrations.

In their questioning, the court asked about the process in decision-making from lower courts to the Supreme Court, and that hinges on how classes are defined for the purpose of giving nationwide relief based on a case in one court. The argument arose that for a class to be determined, the constitutional rights of those plaintiffs in that class must be facing irreparable harm should the relief not be broadly provided. 

A federal judge for the District Court for the Western District of Washington in February granted a nationwide injunction to prevent the federal government from denying citizenship to those children born to illegal immigrants within the borders of the United States. This came after a challenge was brought to Trump's executive order eliminating birthright citizenship for children of those not legally in the US. 

The case in Washington was brought by the Northwest Immigrant Rights Project on behalf of two expectant illegal immigrant moms, and the suit was joined by Oregon, Arizona, and Illinois. In issuing the ruling, the judge banned the order nationwide. Judges use nationwide injunctions to not only block a practice for the case that they're hearing in their own courts, but to block it across the country. 

This is what the ACLU is seeking in preventing the deportation of illegal immigrant Venezuelans in Texas by attempting to identify them as a "putative class" so that instead of bringing cases in individual districts across the US, per the Supreme Court's April 7 order, they can bring one case in one district and get the judge to block the deportations across the board. 

At issue before the court are the two questions of a nationwide injunction as well as the 14th Amendment regarding the entitlement to citizenship. Sauer suggests that the Trump administration should be able to ban birthright citizenship for those not under the jurisdiction of the United States regardless of the ruling in Washington state, while the plaintiffs, who continue to win in lower courts, argue that it's unreasonable to all members of a given class to have to bring a case before they can access relief under a lower court's ruling.

How a given class is determined is part of the consideration before the court, as is the nature of a lower court's ruling and relief provided as appeals work their way through those courts and up to the Supreme Court. 

As for an indication as to how the court would rule on birthright citizenship, Justice Kagan listed cases in which the Supreme Court has determined in favor of birthright citizenship regardless of parental citizenship. 

Kagan said, "the argument here is that the President is violating an establish— not just one, but by my count—four established Supreme Court presidents. We have the one [Wong Kim] Ark case where we said, fealty to a foreign sovereign doesn't defeat your entitlement— your parents, fealty to a foreign sovereign doesn't defeat your entitlement to citizenship as a child. 

"We have another case where we said that even if your parents are here illegally, if you're born here, you're a citizen," Kagan continued. "We have yet another case that says even if your parents came here and were stopped at the border but you were born in our territory, you're still a citizen. And we have another case that says even if your parents secured citizenship illegally, you're still a citizen. 

"So as far as I see it, this order violates four Supreme Court precedents, and you are claiming that not just the Supreme Court and no lower court can stop an executive from universally, from violating that holding, those holdings by this court," she said.

Birthright citizenship was enacted in the 14th Amendment to protect those who had been enslaved and their children by making sure they were legally entitled to all the rights and privileges of citizenship. Most nations with birthright citizenship worldwide exclude from birthright citizenship those persons born to illegal immigrants. Even Pakistan has this common-sense provision.

President Trump's order from January reads: "...the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not 'subject to the jurisdiction thereof.' Consistent with this understanding, the Congress has further specified through legislation that 'a person born in the United States, and subject to the jurisdiction thereof' is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text."

In Sauer's closing argument, he said that "the original meaning of the citizenship clause extended citizenship to the children of former slaves, not to people who are unlawfully or temporarily present in the United States. The merits arguments we are presenting to the lower courts are compelling. We cite, for example, a host of 19th-century authorities that point out that domicile was the touchstone of noncitizens being treated as having their offspring treated as citizens."

As for the concern over the nationwide injunctions, Sauer said "this Court should also address the scope of remedy through remedial question that's presented in the application that is an extremely urgent question, and one of the reasons an extremely urgent question is the limiting principles that my friends the other side have been offering have all proven to be completely ineffective to slowing the essentially slaughter flood or cascade of universal injunctions that we see in these cases."

"And most fundamentally," Sauer said, "the vision of the district courts that's reflected in the issuance of these nationwide injunctions is a vision of them as a roving commission to correct every legal wrong that they can consider and to exercise general legal oversight over the executive branch, which is what this Court rejected in TransUnion. And for those reasons, we asked the court to grant the applications."

The case was submitted and the Court will give its opinion in June or July.