SCOTUS Mulls Limiting Judges’ Authority to Block Trump’s Power Grab
The Supreme Court heard oral argument Thursday in a case that could greatly limit the ability of federal judges to halt President Donald Trump’s brazen bid to expand his presidential powers.
Thursday’s hearing was over Trump’s executive order aiming to deny citizenship to children who are born on U.S. soil to parents who are in the country illegally or temporarily. His order directly challenged the 14th Amendment, which states that everyone born on U.S. territory is a citizen, regardless of their descent.
Federal judges in Maryland, Massachusetts and New Hampshire issued “nationwide injunctions” preventing federal agencies from carrying out Trump’s birthright citizenship order anywhere in the country.
Based on their questioning, the court’s three liberal justices appeared skeptical of the government’s effort to limit nationwide injunctions, while at least two of the conservative justices appeared in favor of it. Several justices did little to tip their hand.
Nationwide, or universal, injunctions prevent the government from enforcing a law, regulation, or policy across the entire U.S. — not just against the specific parties involved in the lawsuit, and not just in the districts where they’re issued. Over recent decades, nationwide injunctions have grown more common, and have been issued to halt the policies of presidents of both parties.
In response to court orders against Trump’s birthright citizenship executive order, the Department of Justice asked the Supreme Court to undo the universal relief granted by judges and to limit their orders to only the specific plaintiffs who are identified in lawsuits.
In its emergency application to the Supreme Court, the Trump administration asked justices to not consider the underlying merits of the executive order — whether it violates the Constitution — but to instead only answer whether judges have the constitutional authority to issue nationwide injunctions.
During the hearing, Justice Clarence Thomas questioned if nationwide injunctions are necessary, saying the country “survived until the 1960s without” them.
And Justice Samuel Alito questioned whether reining in the nationwide injunctions goes far enough, asking Solicitor General John Sauer whether state plaintiffs in the case have standing to challenge Trump’s executive order.
But Justice Sonia Sotomayor asked the government how can judges expeditiously stop presidents from carrying out clearly unconstitutional acts that affect tens of millions of people across the country if they cannot use nationwide injunctions.
As a hypothetical, Sotomayor said a future president could revoke the Second Amendment and confiscate people’s guns. Americans as a whole wouldn’t have a way to prevent the unconstitutional act until a lawsuit reached the Supreme Court, she said.
Justice Elena Kagan asked Sauer whether limiting nationwide injunctions would create an incentive for the government to never appeal to the Supreme Court. If the government loses in the lower courts but is still able to carry out acts against people who didn’t file lawsuits, why would the government give the Supreme Court a chance to issue a final ruling on the constitutionality of the action, she asked.
Justice Ketanji Brown Jackson asked whether doing away with nationwide injunctions would require everyone to hire a lawyer and file lawsuits if the government is violating people’s rights.
“Your argument seems to turn our justice system, in my view at least, into a catch-me-if-you-can kind of regime,” Brown Jackson said to Sauer, “where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights.”
Sotomayor weighed in on the merits of Trump’s order, saying that it likely violates the Constitution and four Supreme Court precedents.
Based on their questions, it’s less clear how Chief Justice John Roberts and Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are leaning on the scope and use of nationwide injunctions.
The oral argument come after months of Republicans admonishing “rogue” and “activist” judges for hamstringing Trump’s agenda. They have also denounced nationwide injunctions as unconstitutional and have taken legislative steps to restrict their use.
The House Republicans last month passed a bill that would limit the scope of injunctive relief ordered by district judges to only the parties before the court, rather than applying the relief universally. Sen. Chuck Grassley (R-Iowa) introduced similar legislation in the Senate.
The use of nationwide injunctions has increased since the start of Trump’s second term. As of March, courts had issued at least 17 nationwide injunctions against the Trump administration, according to a report by the Congressional Research Service.
However, it’s also the case that Trump after returning to the White House has embarked on an unprecedented effort to expand presidential power primarily through unilateral executive orders.
Trump has issued far more executive orders in the first 100 days in the White House than any president in modern history, and those actions have generated a blizzard of lawsuits — over 200 legal actions in his first 100 days in office — some of which have resulted in nationwide relief.
Federal judges across the ideological spectrum have ruled against Trump’s policies, through nationwide injunctions. For example, the federal judge in New Hampshire who issued nationwide relief from Trump’s birthright citizenship order was appointed by then-President George W. Bush.
Republicans over the past four years extensively sought and received nationwide injunctions against then-President Joe Biden’s policies, especially those related to immigration. They also supported and used nationwide injunctions in cases related to abortion, particularly concerning abortion medication.
Over the years, Democrats, too, have taken issue with individual federal judges being able to halt executive branch initiatives nationwide. But in the face of Trump’s actions, they have avoided supporting the GOP’s attempt to pare them back.
Both liberal and conservatives on the Supreme Court have said in recent years they are troubled by some uses of nationwide injunctions and have called on their colleagues to help determine when and how courts can use them.
In 2022, Kagan said “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.”
“The routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions,” Gorsuch wrote in a 2020 statement that Thomas joined.