Trump’s birthright citizenship order faces more bans than before Supreme Court ruling
President Donald Trump hailed the Supreme Court’s landmark decision in June to limit nationwide court injunctions as a “great win,” one that could open a path for his administration to begin enforcing an executive order to end birthright citizenship that had been enjoined by three lower court judges.
Six weeks later, the ruling has turned into something less celebratory for his administration.
Since the Supreme Court’s decision, courts in all three of those jurisdictions have issued fresh rulings maintaining nationwide blocks on Trump’s order, which seeks to deny automatic citizenship to the U.S.-born children of undocumented immigrants and foreign visitors.
The latest came Thursday when U.S. District Judge Deborah L. Boardman in Maryland joined judges in Massachusetts and Seattle in preventing the administration from moving forward as litigation continues regarding whether the executive order is constitutional.
Additionally, a federal judge in New Hampshire last month expanded his narrower injunction against Trump’s directive to apply across the country after certifying the case as a class-action lawsuit on behalf of all children who could be denied citizenship.
The upshot is that the president is facing injunctions from more lower courts than he was before the Supreme Court’s ruling, and federal judges have demonstrated, at least for now, that they maintain significant authority to slow down the implementation of the administration’s most consequential policies.
“It is very positive and very affirming about what we’ve been saying all along: This executive order is plainly unconstitutional and no judge is going to let it come into play,” said Ama Frimpong, legal director of CASA, an immigrant rights group in Maryland whose lawsuit against Trump’s order led to Boardman’s ruling.
The Justice Department did not respond to requests for comment.
Boardman’s initial injunction in February had prompted the Supreme Court to hear arguments this spring in the Trump administration’s appeal that she and other judges had overstepped their authority in issuing nationwide injunctions. In Trump v. CASA, the court ruled 6-3 in favor of the administration and sent a set of birthright citizenship cases back to the lower courts to determine the practical implications of their ruling.
The high court did not rule on whether Trump’s order is constitutional, and the justices left open the ability for plaintiffs to try to block a federal policy nationwide through class-action lawsuits. In her ruling Thursday, Boardman agreed to certify CASA’s legal challenge as a class action on behalf of all U.S.-born children who would be denied automatic citizenship under Trump’s order and issued a new preliminary injunction that will apply nationwide.
“The plaintiffs are highly likely to succeed on their claims” that Trump’s order is unconstitutional, the judge wrote, adding that “the class will be irreparably harmed if the Executive Order takes effect.”
The developments mark the early stages of what legal scholars say will be a lengthy, complicated effort from lower courts to hash out the parameters of the Supreme Court’s ruling in the CASA case, which will apply well beyond the issue of birthright citizenship to virtually all areas of federal policy that are challenged in court. Republican and Democratic administrations alike have complained that their political opponents have increasingly succeeded in using the courts to block their initiatives nationwide, giving individual judges too much power to shape national policy.
The justices’ decision restricted the power for lower courts but did not end the ability of judges to temporarily stop policies nationwide.
University of Michigan law professor Nicholas Bagley said it will take time to “work out the new equilibrium” and determine which are the cases in which judges can still issue far-reaching injunctions.
“We have made the law and courts quite central to policymaking in the United States, for better or for worse,” said Bagley, who supports limiting nationwide injunctions in general, although he believes Trump’s birthright citizenship order is unconstitutional. “Getting rid of one particular way courts can provide sweeping relief [to plaintiffs] does not mean the courts will be sidelined. It would take a whole lot more to do that.”
John Yoo, a conservative legal scholar who has called nationwide injunctions an “unconstitutional anomaly,” suggested the string of lower court decisions that have kept them in place are doing a disservice to those opposed to Trump’s executive order. That’s because doing so could create more legal showdowns over the injunctions—and slow down the Supreme Court from taking up the more fundamental question of whether the president’s birthright citizenship ban is constitutional. (Yoo thinks it is not.)
Yoo said some of the lower court judges “are actually close to defying the Supreme Court” because they have not found ways to narrow their injunctions. He said the alternative would be to allow the administration to begin enforcing Trump’s order in some instances—such as in Republican-led states—but that would end, and be reversed, if the high court declares the policy unconstitutional.
“Judges and plaintiffs are doing this because if you are opposed to the Trump administration’s executive orders, you want something like a nationwide injunction if you can get it,” Yoo said. “On the other hand, this delays issues from getting to the Supreme Court for final resolution.”
Like Boardman, U.S. District Judge Joseph Laplante in New Hampshire agreed last month to certify a class-action legal challenge against Trump’s order filed by the American Civil Liberties Union. In February, while weighing the ACLU’s initial complaint on behalf of several immigrant rights groups, he called nationwide injunctions inappropriate and issued a narrow injunction that covered only the families of plaintiffs.
Announcing his ruling last month, Laplante emphasized that judges should refrain from attempts to “create national policy” through judicial rulings. But he noted that the Supreme Court “suggested a class action is a better option” and agreed to certify the class action on behalf of children who would not be granted citizenship under Trump’s order. The judge also expanded his injunction to apply across the country.
“We expect this order will never be enforced because the class action is on such strong legal footing,” said Cody Wofsy, the ACLU’s lead attorney in the New Hampshire case. “Once we obtained a class injunction, there was no credible procedural argument left, so moving forward the government will have to instead rely on its flawed arguments about the constitutional and statutory merits” of the president’s executive order.
But granting class-action status is not the only rationale judges have used to maintain nationwide injunctions on the birthright citizenship order. In reviewing ongoing lawsuits in Massachusetts and Seattle, judges said they were unable to find a reasonable way to narrow the injunctions while continuing to provide suitable relief for the plaintiffs.
Both cases were brought by coalitions of Democratic-led states that initially won injunctions against Trump’s order after arguing they stand to incur additional financial and administrative burdens if the policy goes into effect. The states said they would need to set up new systems to vet parents’ immigration status before providing health benefits and other social services to their children.
In June, the Supreme Court declined to rule on whether nationwide injunctions could be appropriate in the cases involving the states, stating that question would be left to lower courts.
On July 23, the U.S. Court of Appeals for the 9th Circuit, in a 2-1 decision, upheld a Seattle judge’s ruling that Trump’s directive violates the citizenship clause of the Constitution’s 14th Amendment and affirmed his decision to block the order from being implemented across the country.
The appeals court panel found that the four Democratic-led states that brought the lawsuit could be adversely affected if the injunction were narrowed to apply only in some areas of the country because they would still need to overhaul their systems to check citizenship, given that parents and their children move between states.
Two days after that ruling, U.S. District Judge Leo T. Sorokin in Massachusetts offered a similar rationale in a 23-page decision that maintained the nationwide block on Trump’s order that he had issued in February in a lawsuit brought by 18 Democratic-led states and the District of Columbia. He said a “substantial number of children” covered by the executive order would move into those jurisdictions from non-plaintiff states and the financial costs to determine whether they are citizens would be “substantial and material, not de minimis or trivial.”
Sorokin, who criticized the Trump administration for failing to meaningfully engage in his review of the case after the Supreme Court’s decision, concluded that “no workable, narrower alternative to the injunction issued originally would provide complete relief to the plaintiffs in this case. The Court therefore declines to modify that injunction.”
Connecticut Attorney General William Tong said Sorokin’s decision shows that “the courts are strongly agreeing with the states because it is clear that the 14th Amendment says what it means and means what it says: If you’re born on American soil, you’re an American citizen.”
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