SCOTUS rules in the birthright citizen case

The Court’s ruling is composed of two main parts. The first is its declaration that it is possible that the president can contradict the plain-text reading of the Constitution by issuing an executive order doing away with birthright citizenship.

The second is that lower courts can no longer issue nationwide injunctions against blatantly unconstitutional policies imposed by the executive. Injunctions must now be created on a patchwork basis.

I want to impress upon you how dangerous this is. SCOTUS has empowered the president to impose whatever he likes—irrespective of its constitutionality—and then prevented judicial overview except at the localized level. Meaning that we will now have two sets of laws. One that operates in Red America and one that Operates in Blue America.

  The Bulwark

We have some of that now.

By now, you’ve surely seen the headline—that a 6-3, ideologically divided Court, in an opinion by Justice Barrett, sharply limited “universal” injunctions to cases in which they are necessary to provide “complete relief” to the parties. [...] The ruling has provoked sharp reactions from across the spectrum—including fairly apocalyptic takes from at least some savvy Court watchers.

There’s no question, in my mind, that today’s ruling dramatically restructures the relationship between federal courts and other government institutions (and between the Supreme Court and lower federal courts)—in ways both big and small. How deleterious those changes are to the ability of courts to hold the President accountable depends, in my view, on how three questions are answered—questions raised by today’s ruling, but very much not answered by it:

1. When will parties (especially states) need a universal injunction in order to obtain “complete” relief?

2. If lower courts start certifying more nationwide classes in suits challenging federal policies, will the Supreme Court approve?

3. To what extent is Justice Kavanaugh’s concurrence (and the normalization of emergency relief for which it argues), speaking for a majority?

[T]here’s much to criticize in both Justice Barrett’s majority opinion and Justice Kavanaugh’s concurrence. The long-term implications of the ruling, though, will really depend upon what happens next.

Contra some headlines, Justice Barrett’s majority opinion doesn’t foreclose “universal” injunctions in all cases. Rather, it holds that injunctive relief that directly benefits non-plaintiffs is appropriate only when it’s necessary to ensure that the plaintiffs themselves get “complete” relief. (An illustrative example of when individual plaintiffs will need universal relief is in redistricting cases—where states often need to redraw maps on a statewide basis to redress a successful challenge by even a single plaintiff.) Put another way, if an injunction limited to the plaintiffs in that case will give those plaintiffs all the relief to which they’re entitled, nothing broader is permitted. That’s the holding, in a nutshell.

The majority never actually explains why CASA (the lead private plaintiff in the Maryland challenge to the birthright citizenship executive order) can receive complete relief with an injunction that applies only to it and its members. Although the lower courts hadn’t spent much time on this issue (yet another issue with the Court deciding this question through emergency applications), CASA had specifically argued in the Supreme Court that it couldn’t get complete relief without a universal remedy. That said, given that the majority unambiguously voted to stay the injunction in the CASA case, it seems to have at least implicitly concluded that a CASA-specific injunction is sufficient. But the other two cases before the Supreme Court have states as plaintiffs. And although the Trump administration had asked the justices to knock the states out, the Court (implicitly) declined in today’s ruling. So those cases go forward with state plaintiffs, for which the complete relief question is much harder.

[...]

I’ve written before about the relationship between universal injunctions and nationwide class actions—and the view that the availability of nationwide class actions reduces the significance of the Supreme Court’s narrowing of universal injunctions. Indeed, perhaps the biggest question today’s ruling raises is whether we’re going to see a resurgence of what are known as “23(b)(2)” class actions seeking nationwide relief—where a small number of named plaintiffs seek injunctions against federal policies on behalf of everyone across the country who is similarly situated. As I’m writing this, we’ve already seen parties in several of the birthright citizenship cases move to certify such classes.

Class actions are harder to bring, at least largely thanks to the Supreme Court—and a series of rulings from the early 2010s that ratcheted up the requirements for certifying nationwide classes. On top of that, states (and organizations like CASA) can’t be class-action plaintiffs (the Federal Rule of Civil Procedure that authorizes class-wide relief requires the plaintiffs to be persons).

  Steve Vladeck

Continue reading if you want to get the what-ifs.

Here, Vladeck gives an example of where the universal injunction would be okay.  If a plaintiff files an injury by gerrymandering, they can only get complete relief by a statewide injunction, because the gerrymander correction would necessarily affect the entire state.

CASA, a Maryland-based advocacy group that brought the lawsuit that led to the Supreme Court’s ruling, amended their complaint within hours to make it a class action. The group already has sought a temporary restraining order to immediately block Trump’s executive order from taking effect 30 days from now.

“As we understand, our injunction holds: Our CASA members and individuals that live in states that joined challenges to this unlawful executive order are protected,” the group’s chief of programs and services George Escobar said in a phone interview, noting that the Supreme Court allowed the injunction to continue to protect the named plaintiffs. Still, the broader battle continues.

  All Rise News

Remember when Republicans constantly screeched about "activist judges"?  According to the Fox chyron below, they're not apparently "rogue" judges.

Everybody is hollering about this ruling, and I'm not entirely clear on what it means.  I'll have to wait to see what happens next.

Frankly, that would be my solution.

UPDATE 06/28/2025:

The legal upshot of the Supreme Court’s monumentally disastrous decision in Trump v. CASA (more commonly known as “the birthright citizenship case”) is chaos. Utter legal chaos. In its ruling on Friday, the court’s usual six monarchists granted Donald Trump’s request to reexamine various nationwide injunctions preventing Trump and Stephen Miller from implementing their plans to revoke birthright citizenship to any American who doesn’t happen to be white.

[...]

[T]he ruling doesn’t actually allow Trump to end birthright citizenship. It just makes it incredibly difficult for courts to stop him from ending birthright citizenship.

[...]

An injunction is an order issued by the court preventing the government from doing a thing. Before today, lower courts had the authority to prevent the government from doing an unconstitutional thing, not just in the jurisdiction where the court sits, but nationally.

I’m not actually a fan of nationwide injunctions. The system can be incredibly politicized. [...] Whether a president gets to have their agenda often depends on whether the opposition party can find a friendly lower-court judge.

[...]

[N]ationwide injunctions make sense when it comes to national issues involving civil and human rights: issues like, say, the Constitution’s very clearly stated definition of national citizenship.

[...]

In one fell swoop, the Supreme Court has thrown that system into the shredder. Trump v. CASA takes away the ability of lower-court judges to issue nationwide injunctions. Instead, lower courts are now limited to issuing rulings that apply only to the litigants who happen to be before them in their local court. Injunctions now must be narrowly tailored to give the active litigants only what they personally need, and nothing more. In other words, if Trump violates my constitutional rights in New York, I can sue and potentially win. But if Trump violates your constitutional rights in exactly the same way in New Jersey, you have to sue for yourself.

[...]

The decision means that some courts, districts, and states will still defend the concept of birthright citizenship, while others will not. That could mean that whether or not a child born in America on or after June 27, 2025, is considered a citizen of the United States will depend on what state, or even county, that child happens to be born in.

  The Nation

I think there's a 30-day delay before the ruling takes effect while remedies are sought.

It is exactly how this country determined citizenship from June 21, 1788, (when the Constitution was ratified) until July 9, 1868 (when the 14th Amendment was ratified). The idea that citizenship depends on which state recognizes your citizenship has literally been tried before in this country, with Black people and Native Americans having citizenship rights in some states and… not in others. We have already fought over this. It was called the Civil War. We resolved this issue; it’s called the first section of the 14th Amendment.

[...]

It’s fashionable to say that the court’s ruling is not really about birthright citizenship, because the legal question focused on the power to issue nationwide injunctions. But that sanewashing of the court’s opinion does not survive its first contact with reality. By taking away the ability of courts to enter nationwide injunctions in this case, the court is giving Trump carte blanche to violate the constitutional definition of citizenship in any district where a friendly Trump judge will allow him to. [...] Right on cue, Trump signaled today that he intends to move ahead with a slew of agenda items “that have been wrongly enjoined on a nationwide basis,” including policies targeting trans children, refugees, immigrants, and, yes, birthright citizenship.

[...]

[SCOTUS] chose to [rule] here, on this issue, where lifting the nationwide injunction will have the direct and immediate impact of letting Trump and Miller take away citizenship on a case-by-case basis. If ever there was a reason to have a nationwide injunction, it would be a situation where a president brazenly refuses to follow the most important amendment ever inserted into the Constitution.

[...]

Justice Amy Coney Barrett, who wrote the majority opinion for the Republicans, argues that nationwide injunctions should never be a thing. Her principal reasoning for this is… the High Court of Chancery in England, which existed at the time of the adoption of the Constitution. I wish I were making that up, but I’m not nearly creative enough to do it. Barrett, and the rest of her Republican colleagues, determined that nationwide injunctions cannot be used in 2025 to stop a president from violating the Constitution of the United States, because the High Court in England—which existed during a time of hereditary monarchy—did not use a historical equivalent of a nationwide injunction to enforce the laws against [checks notes] their King.

[...]

We’re living in a world where six Republican Supreme Court justices used the courts of a monarchy we revolted against as the controlling authority on whether the president of the United States has to follow the Constitution.

And Barrett doesn’t stop there. She isn’t sure that any American court can make Trump follow the law. (It’s unclear if she thinks an English court could do it.) She writes: “No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so.”

What???

According to Barrett, the law is a mere suggestion to Donald Trump. She hopes he follows it, but if he doesn’t, there might be nothing the courts can do. I’ve said repeatedly that the courts will not save us from Trump, and will not require him to follow the law. Perhaps I should thank Barrett for so shamefully proving my point.

[...]

Every state will now have to sue the Trump administration individually to defend the constitutional grant of citizenship, and Trump is now probably free to end birthright citizenship in states that do not sue.

More broadly, many of the legal fights brought against Trump over these first few months of his fascist reign are now moot and will have to be relitigated. And even if there is a “win” against the Trump administration, that win will be limited to the litigants actually involved.

[...]

Imagine trying to explain to Trump’s gestapo forces that you are a winning litigant and Trump’s attempts to deport you without due process are void as applied to you personally, but not the other eight people you’re sitting with in an ICE detention van. Imagine trying to convince a state official in Texas that your baby should get a birth certificate, because you were a part of a successful lawsuit, but the official can still deny birth certificates to children in the next ward because their mothers did not sue in a timely manner.

[...]

In a concurrence to the ruling, alleged attempted rapist Brett Kavanaugh assures us that all will be well. While the decision took away the ability of lower courts to stop Trump’s attempts to end birthright citizenship, Kavanaugh says that the Supreme Court has reserved that right for itself. Eventually, Kavanaugh tells us, all of the disparate case-by-case, county-by-county citizenship cases will make their way to the Supreme Court, where Kavanaugh and his buddies can finally rule on the constitutional merits of Trump’s actions. And Kavanaugh promises us that the Supreme Court will act quickly to resolve the (utter freaking) chaos the Supreme Court has itself introduced into the system.

[...]

Allowing states and localities to determine for themselves who really gets to be a US citizen, even for a short time, can have obvious, disastrous consequences. Once the Pandora’s box of two-tiered citizenship is opened, it will be really hard for the Supreme Court to recapture all of the horrors it unleashes. Or, as Justice Ketanji Brown Jackson puts it in her chilling dissent, “Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.”

[...]

The Republicans on the court have won their battle against the 20th century and have moved on.

They’re now trying to relitigate the 19th century and destroy all of the progress made during the Reconstruction era. And right now, they’re winning their second Civil War, without firing a shot.

UPDATE 06/28/2025: