Although oral arguments in the U.S. Supreme Court usually end in April, on May 15, the Supreme Court will hear its first case—the consolidation of three cases—on the merits challenging a Trump administration policy: whether federal district courts erred in granting nationwide injunctions against President Donald Trump’s executive order ending birthright citizenship in the United States.

The question presented in the case indicates that it is about the authority of federal courts and not the merits of the effort to end birthright citizenship: “Whether the Supreme Court should stay the district courts’ preliminary injunctions except as to the individual plaintiffs and identified members of the organizational plaintiffs or states.” But the underlying issue involves one of Trump’s most controversial executive orders.

Birthright citizenship and the Trump executive order

In Dred Scott v. Sanford, in 1857, the Supreme Court held that enslaved individuals were not United States citizens, even if they were born in the United States. The first sentence of the 14th Amendment was meant to expressly overrule this holding and states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

In United States v. Wong Kim Ark, in 1898, the Supreme Court held that this means that everyone born in the United States, regardless of the immigration status or citizenship of their parents, is a United States citizen. The court began by reviewing English law and early American law concerning this and declared: “That all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth, does not appear to have been contested or doubted until more than 50 years after the adoption of the constitution.” In a 6-2 decision, which carefully reviewed the history of this provision of the 14th Amendment, the court held that all born in the United States, with very limited exceptions, are citizens of the United States.

The issue underlying the Trump executive order and the case before the Supreme Court is what the phrase “subject to the jurisdiction thereof” means. The court expressly addressed that in Wong Kim Ark and concluded that it excluded “children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign state.” That has been the understanding of the clause for over a century.

But on Jan. 20, Trump issued an executive order stating that the 14th Amendment does not bestow citizenship on children whose parents are not lawfully in the United States. Specifically, it provides that individuals born in the United States are not citizens either “when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth,” or “when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary … and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.” Simply stated, after Feb. 19, only those born to parents who are citizens or green card holders are United States citizens.

Nationwide injunctions

Lawsuits immediately were filed challenging Trump’s executive order. Four federal district courts found the executive order on birthright citizenship unconstitutional and issued nationwide injunctions. Their rulings were upheld in federal courts of appeals. The Trump administration sought Supreme Court review in three cases—Trump v. CASA, Trump v. Washington and Trump v. New Jersey.

The Trump administration’s petition for Supreme Court review said it was making a “modest” request. It said that the court should limit the injunctions “to the individual plaintiffs and the identified members of the organizational plaintiffs.” The solicitor general’s brief then went further to argue that nationwide injunctions are unconstitutional.

I think all would agree that this is anything but “modest.” Ending nationwide injunctions would be a major change in the law. Indeed, the Trump administration’s petition to the Supreme Court argues that a federal court cannot provide relief to other than the parties in a lawsuit. Holding that federal courts cannot provide “relief beyond the parties to the case” would mean that there would have to be separate lawsuits by every other party that wants the same relief. If an organization sues, all of its members could benefit. And if there is a class action, all members of the class would benefit But a suit by individuals to challenge a policy, such as the end of birthright citizenship, would mean that anyone else who is affected would have to bring a separate lawsuit.

The primary focus of the solicitor general’s brief was arguing that a decision in one federal district court can have no effect beyond that district. This would mean that a challenge to an unconstitutional government policy would have to be brought separately in each of the 94 federal districts and, ultimately, in every federal circuit.

The government makes two arguments for this. First, it says the Constitution limits federal courts to deciding “cases and controversies.” The government says a court cannot provide relief to other than the parties in a lawsuit.

But on the other hand, when a court declares a law unconstitutional it is deciding the case before it, even though there may be a benefit to third parties. If the justiciability doctrines of Article 3 are met, then there is a “case or controversy” under Article 3. When federal courts are finding the Trump executive order on birthright citizenship unconstitutional, they are literally deciding cases that are properly before them under Article 3of the Constitution. There is nothing in the Article 3 requirement for cases and controversies that says the relief given in a case only can be granted to, or only benefit, a particular party to the litigation.

Put another way, nothing in Article 3 prevents a court from issuing a remedy against a defendant that benefits more than the plaintiff in a lawsuit. Otherwise, when there is an unconstitutional law, the court would be limited to declaring it invalid as to the plaintiffs in that case but leaving the law on the books except as to others who come forward to challenge it. A nationwide injunction is directed at a party: the United States government.

The solicitor general’s other primary argument is that nationwide injunctions harm the executive branch in carrying out its constitutional duties. But the response is, that’s the whole point: If the executive branch is violating the Constitution, it should be stopped. Ending nationwide injunctions would mean that an unconstitutional law or presidential action would remain in effect every place except in the federal district where the injunction was issued. It is precisely for this reason that the Trump administration wants to end nationwide injunctions: Without them it will be far more difficult to halt unconstitutional presidential actions.

Critics of nationwide injunctions argue that they allow one district court to create a ruling for the entire country. But defenders of nationwide injunctions say that is only temporary until the federal court of appeals and, ultimately, the Supreme Court rules. They argue that the alternative of limiting federal court relief to the particular plaintiff or the specific federal district court would be far worse.

It would require that those challenging the executive order on birthright citizenship would have to file a separate lawsuit in every federal district and would risk inconsistent law. In the context of these cases, it could mean that a person born in one federal district would be a citizen, while another born in identical circumstances in another district would not be at least until, and unless, the Supreme Court resolves the issue for the entire country.

The solicitor general’s petition to the Supreme Court also discusses whether state governments can sue on behalf of their residents. The government argues that states should not be able to do so. The brief declares: “States cannot raise individual-rights claims against the United States.” The United States government thus contends that state governments cannot challenge the Trump effort to end birthright citizenship, arguing that the states cannot “assert the citizenship rights of individuals who live in those States.” Restricting the ability of state governments to challenge federal policy would further lessen the possibility of checks on unconstitutional presidential actions.

In conclusion

The context of this case is a challenge to a controversial executive order by a conservative president. But conservative state governments and organizations repeatedly sought nationwide injunctions during the Biden and Obama presidencies.

The context is important in another sense as well. At the same time Trump is repeatedly asserting broad executive powers, he is attempting to limit the ability of courts to check them by having the Supreme Court end nationwide injunctions.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023 (2024).

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.