The Supreme Court heard oral argument last week on the validity of so-called “nationwide” injunctions in the context of President Trump’s Birthright Citizenship Executive Order. Strong conceptual and practical arguments can be made against nationwide injunctions. Such arguments might be compelling if dealing with a presidential administration that respected the rule of law. However, it’s hard to imagine a worse test case challenging this practice than Trump and his Birthright Citizenship EO.
The Trump EO is, as one district judge (a Reagan appointee, no less) observed, blatantly unconstitutional. It contradicts the plain language and original history of the Fourteenth Amendment as well as longstanding Supreme Court precedent. Evidently, it’s the brainchild of John Eastman, also known for advocating that Vice President Pence could reject the 2020 election results. All lower federal courts to rule on the EO so far found it unconstitutional. Three courts issued nationwide injunctions against its enforcement. If ever an action justified a nationwide injunction on the merits, the Birthright Citizenship EO is it.
But there is an additional key consideration here. The strategy employed by the Trump Administration regarding the Birthright Citizenship EO illustrates the bad faith and legal gamesmanship characteristic of many of its actions. Trump’s lawyers did not ask the Supreme Court to overturn the three lower court decisions holding the EO unconstitutional as applied to the individual plaintiffs in those cases. Rather, they only contested the nationwide injunctions the three judges issued. While this approach may seem odd at first blush, the rationale underlying it became clear during the oral argument, particularly under questioning by Justices Kagan and Barrett, and is highlighted here.
Trump’s attorneys must recognize there is little chance that the Supreme Court will uphold the EO’s risible attempt to redefine birthright citizenship if it gets a case on its merits. No self-respecting textualist/originalist jurist could support it. Thus, one prong of the strategy is to keep such a case away from the Court. The other prong is to force individual plaintiffs to contest the EO over and over in the 94 federal judicial districts.
As Justice Kagan pointed out during the oral argument, this cynical strategy could work if the nationwide injunctions are lifted. A loss in an individual district leaves the EO in place in the remaining districts until the next challenge comes along. If the plaintiffs challenging the EO continue to be successful in these individual cases, there is no losing plaintiff to appeal to a higher court and the EO retains life. The Trump Administration might try its luck at taking a loss to a circuit court of appeals, but even if it lost again at that level, the EO could still operate in other circuits. (In response to questions by Justice Barrett, Trump’s solicitor general refused to commit that the Administration would honor an adverse court of appeals precedent.)
This approach could persist for some time, creating chaos and distress for those whose citizenship is at risk under the EO and who don’t have the wherewithal to challenge it. Children born in one state or federal judicial district could be treated as U.S. citizens while similarly situated children born in a different jurisdiction would not.
This is a prime example of what happens when Trump’s impulses are free from internal constraints. Apparently, Trump’s craven and ethically challenged lawyers can’t bring themselves to tell him that his Birthright Citizenship EO is clearly unconstitutional. They seem willing to let this drag on until an overwhelming number of federal districts or circuits rule against the EO. While the justices may (rightly) have qualms about nationwide injunctions, hopefully they will find some way to prevent Trump and his enablers from continuing this travesty.