gotchanewsdaily.com 
CNN
—
As it pushes to implement a plan to end birthright citizenship, the Trump administration is counting on an argument about out-of-control federal judges to prove irresistible to some Supreme Court conservatives.
Rather than waiting to ask the court to rule directly on the merits of birthright citizenship, which President Donald Trump is seeking to unwind, the administration used a series of emergency appeals Thursday to argue that lower courts are vastly exceeding their authority to block the White House’s agenda.
In effect, it’s a strategy that could bring the same result – letting Trump at least temporarily upend more than a century of settled law that’s part of the fabric of American society.
The use of sweeping, if temporary nationwide orders has “reached epidemic proportions since the start of the current administration,” acting Solicitor General Sarah Harris told the Supreme Court in the appeals. “This court should declare that enough is enough.”
For now, the court doesn’t appear to be in any rush to resolve the cases. The three justices handling Trump’s appeals on Friday asked for a response from the groups challenging Trump by April 4, a far longer timeline than is usual on the court’s emergency docket.
The birthright citizenship appeals made their way to the high court at a moment when judges are wrestling with a slew of controversial executive actions that seem designed to push the boundaries of the law. The Supreme Court has already twice declined to overturn lower courts that blocked Trump initiatives since January 20.
Those cases have drawn fiery dissents from some conservative justices questioning the power of lower courts to force the administration to slow down. Trump’s latest appeal – which repeatedly cites conservative Justices Neil Gorsuch, Clarence Thomas and Samuel Alito – appears designed to build further support for that position.
But experts say the birthright citizenship case may be a particularly improbable vehicle for changing how lower courts do business.
That’s largely because of the controversy surrounding Trump’s position on birthright citizenship. For more than 150 years, courts have understood the 14th Amendment’s text to guarantee citizenship to anyone “born or naturalized in the United States,” regardless of the immigration status of their parents.
“There are strong arguments about the scope of injunctions,” said Amanda Frost, a professor at University of Virginia School of Law. “This is a pretty weak case to bring that kind of argument.”
Courts have issued sweeping injunctions requiring Trump to halt implementation of his birthright citizenship plans – among a wave of early legal defeats the new president has faced. A federal judge in January described Trump’s effort as “blatantly unconstitutional.” Three federal appeals courts declined to lift those orders.
The administration framed its request of the Supreme Court as “modest,” noting it’s not seeking to lift the injunctions entirely – only to narrow their scope to the parties who sued. But if a majority of justices grant the request, it would have the practical effect of allowing the administration to move forward with an executive order against all but a handful of people.
“The government’s argument is anything but ‘modest,’” said Rupa Bhattacharyya, legal director at the Institute for Constitutional Advocacy and Protection, which is representing two of the groups challenging Trump. “It would destroy the very concept of the United States as a nation if children born in Tennessee were denied citizenship while children born in Washington state were granted it.”
Transgender care to immigration
In one sense, Trump is pressing a decades-old legal argument and taking a position that has, at times, drawn bipartisan support. In the final weeks of the Biden administration, for instance, the Justice Department also urged the Supreme Court to consider limiting the use of so-called universal injunctions – an invitation the court declined.
And the Supreme Court waded into the issue just last year in an emergency appeal dealing with Idaho’s strict statewide ban on gender-affirming care for minors. A majority allowed Idaho to enforce its ban, shutting down a lower court’s sweeping injunction that had blocked its implementation.
Gorsuch, in a lengthy concurrence, lamented lower courts’ injunctions that extended beyond the people who challenge the policy in the first place.
“Lower courts would be wise to take heed,” Gorsuch warned in an opinion joined by Thomas and Alito. “Retiring the universal injunction may not be the answer to everything that ails us. But it will lead federal courts to become a little truer to the historic limits of their office.”
Gorsuch’s concurrence is the very first Supreme Court opinion the Justice Department cited in its appeals Thursday.
Harris argued that courts have not taken heed but have instead doubled down. She did not address the counterargument: That courts are simply reacting to a president who openly ran on shaking up the status quo in ways everyone knew would invite legal challenges.
“District courts have issued more universal injunctions and TROs during February 2025 alone than through the first three years of the Biden administration,” she wrote.
Presidents of both parties tend to complain about nationwide injunctions, even as their allies often pursue them when the other party is in power. The Biden administration was forced to pause policies dealing with immigration, Covid-19 and student loan forgiveness.
The emergency orders don’t decide the merits of a case, but they often have significant practical implications. In 2021, the Supreme Court declined to block a Texas law that banned most abortions after six weeks of pregnancy – even though the law conflicted with the court’s landmark 1973 decision in Roe v. Wade. Months later, the court overturned Roe.
Even with that history, there have been signs that some justices are restive about the recent flood of lower court orders.
When a majority of the court this month let stand a ruling requiring the Trump administration to quickly spend nearly $2 billion in foreign aid, Alito wrote a scathing dissent accusing the lower court of “judicial hubris.”
“Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars?” Alito wrote. “The answer to that question should be an emphatic ‘No.’”
Alito was joined by Thomas, Gorsuch and Justice Brett Kavanaugh – one vote shy of a majority.
‘Micromanaging’ Trump
The Trump administration is also making a backup argument at the Supreme Court – one that could find some purchase.
If the justices are unwilling to allow officials to implement the order, the administration argues, then the court should at least let the executive branch make plans to do so.
The lower court orders block such internal planning in rulings the administration said, “micromanage the internal operations of the executive branch.”
The orders “have prevented executive agencies from developing and issuing public guidance explaining how the executive branch would carry out the citizenship order,” Harris told the Supreme Court. Those orders, she said, “exceed the courts’ authority” under the Constitution.
If a majority of the court wants to give the administration a win on part of its request without addressing the more substantial questions involved, the issue of internal planning would have the most limited impact.
US District Judge Deborah Boardman, nominated to the bench by President Joe Biden, questioned why officials would want to move forward with planning an order widely understood to be illegal.
“Surely, the government has no valid interest in taking internal, preparatory steps to formulate policies and guidance on an unconstitutional executive order,” Boardman wrote last month.
A landmark Supreme Court precedent from 1898 affirmed the idea that people born in the United States are citizens, and the modern court hasn’t signaled a desire to revisit that holding. Some conservatives have argued that those long-held views are wrong because the 14th Amendment includes a phrase that citizenship applies only to people who are “subject to the jurisdiction” of the United States.
