Not even a year ago, though it feels like a decade, the US Supreme Court granted presidents immunity from criminal laws when they act in their official capacity. In other words, presidents don’t have to worry about breaking the law, as they will never be held to account. On Thursday, the Trump administration was back at the court with a related request: Will the justices please allow us to enforce illegal orders against anyone who fails to sue to stop us?
As Trump portrays himself as a king, his lawyer presses for a king’s powers.
The request comes out of litigation over Trump’s illegal executive order denying birthright citizenship to the children of undocumented immigrants and visa holders. This is so obviously a violation of the citizenship clause of the Constitution, which guarantees birthright citizenship to virtually everyone born in the United States, that the Trump administration does not want the court to tackle that question. Instead, they are asking the court to strip the judiciary of the power to issue nationwide or universal injunctions—orders that halt the implementation of a rule, law, or policy while the courts contemplate a final ruling.
If courts cannot halt the government’s illegal actions until the Supreme Court has decided they are illegal—a process that can take years, if the case ever reaches the nine justices—then the government would be free to do essentially whatever it wanted to anyone unable to sue or possibly join a class action lawsuit. It transforms the justice system from one which stops illegal government activity into one that can only provide whack-a-mole relief to those who can stand up and ask for it.
It’s a nightmarish vision of the justice system. Imagine the police identify a serial thief. He’s targeting neighborhoods at night all across the country. Rather than lock him up, the thief simply promises to skip the homes that have called the police to complain and obtained a restraining order. Until a jury convicts him, everyone else keeps getting robbed. That’s what Trump is asking for: the ability to run roughshod over the Constitution and the law—and not just on this question of citizenship, but on any illegal or rights-depriving scheme he can think of—until the case somehow reaches the Supreme Court.
“Your argument seems to turn our justice system, in my view at least, into a ‘catch me if you can’ kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights,” Justice Ketanji Brown Jackson told Solicitor General John Sauer. “I don’t understand how that is remotely consistent with the rule of law.”
“You go back to English common law and the Chancery Court,” Jackson continued, “but they had a different system. The fact that courts back in English Chancery couldn’t enjoin the King, I think, is not analogous or indicative of what courts can do in our system, where the king, quote, unquote, the executive, is supposed to be bound by the law, and the court has the power to say what the law is.”
This is the crux of the issue. The Supreme Court’s GOP-appointed majority keeps moving the goal posts so that the president increasingly resembles the monarch the colonies declared independence from. As Trump portrays himself as a king on social media, his administration presses for him to possess a king’s powers as well.
In their battle against universal injunctions, the Trump administration has contended that final, nationwide relief from an illegal order would only come if and when the Supreme Court issued a ruling finding it unlawful. And Sauer did pledge the government would follow any such order. But as Justice Elena Kagan drew out in her questioning, there’s no guarantee that the Supreme Court would quickly hear a challenge to an illegal executive order, if ever.
“I don’t understand how that is remotely consistent with the rule of law.”
“Let’s just assume you’re dead wrong,” Kagan began, asking Sauer to concede the citizenship order is illegal to lay out how the administration would argue court review should play out to “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 that the EO would have us do.”
Sauer suggested litigants could get temporary relief through a class action. (Yes, a class action for infants being born constantly joined by parents who might fear deportation as a result of coming forward in court.) But Sauer soon acknowledged that the administration would likely fight class certification.
Next Kagan asked if an individual challenging the executive order won an appeal in a circuit court, which has jurisdiction over several states, would the government agree not to enforce the order in those states? Sauer would not commit to that.
Sauer and some of the GOP-appointed justices seemed content with the idea that through one of those routes—an individual plaintiff or a class action—a challenge to an executive order could quickly reach the Supreme Court, where would be resolved expeditiously. But Kagan quickly pointed out that the government was actually arguing for an extraordinary loophole: The more egregious the violation, the harder it will be for the issue to ever reach the Supreme Court.
The birthright citizenship question is a perfect example, because it is considered to be lawless and baseless by most lawyers. “Let’s assume that you lose in the lower courts pretty uniformly, as you have been losing on this issue,” Kagan pressed. “I noticed that you didn’t take the substantive question to us. You only took the nationwide injunction question to us. I mean, why would you take the substantive question to us? You’re losing a bunch of cases. This guy here, this woman over here, they’ll have to be treated as citizens, but nobody else will. Why would you ever take this case to us?”
In other words, the Trump administration can win by losing. If the losing party, the government, accepts individual losses and never appeals, then it wins by applying the order to everyone without a lawyer—which is most people, especially among immigrant populations fearful of deportation.
After two and a half hours of arguments, it is unclear whether there are five votes among the justices to end universal injunctions outright. Doing so would be a radical departure from the law, one that would subject the nation to every illegal fantasy Trump and his braintrust can think up for an indeterminate amount of time. This case clearly showed the contours of the choice: The justices clearly do not like the pervasive use of universal injunctions, and the GOP appointees certainly don’t like the cascade of injunctions against Trump. But at the same time, the birthright citizenship order is clearly baloney.
Perhaps Justice Clarence Thomas’ questions best illustrate the conundrum. An originalist, Thomas’s questions focused on the history of universal injunctions and its common law ancestors, seemingly to disprove the notion that there is a bygone analogue that would justify its existence.
But does Thomas believe, as Sauer stated on Thursday, that the citizenship clause was merely intended to cover the children of formerly enslaved people? Two years ago, Thomas wrote that Section 1 of the 14th Amendment, which includes the citizenship clause and the equal protection clause, were bound up together in one universal rule of equality for all. “The addition of a citizenship guarantee thus evidenced an intent to broaden the provision, extending beyond recently freed blacks and incorporating a more general view of equality for all Americans,” Thomas wrote in Students for Fair Admissions v. Harvard, using the amendment to justify ending affirmative action by stressing its application to white people as well. As for the amendment’s guarantee of birthright citizenship, Thomas called it “a new birth of freedom.”
But that’s not worth the paper its written on if the courts can’t protect it.
