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The Supreme Court’s Birthright Citizenship Ruling Could Not Be More Disastrous [1]

['Mark Joseph Stern', 'Shirin Ali']

Date: 2025-06-27 16:48:16+00:00

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The Supreme Court gave Donald Trump the biggest victory he could have asked for on Friday, effectively abolishing “universal injunctions” that lower courts used to block his illegal policies nationwide. With a single decision, the conservative supermajority stripped judges of their most powerful tool to rein in lawless executive action, handing the president far more authority to implement even blatantly unconstitutional directives. The 6–3 ruling in Trump v. CASA will create chaos throughout the judiciary, and for real people in dire need of protection: The court rolled back three universal injunctions that had halted the president’s attack on birthright citizenship, opening the door to its enforcement while the case is litigated. Within hours of the decision, Trump had promised to “promptly file” to move forward with his unconstitutional birthright citizenship removal plans. At the worst possible time, in the worst possible case, SCOTUS has ceded immense power to a president who is dead-set on abusing it.

CASA involves three separate challenges to Trump’s executive order attempting to end birthright citizenship for the children of many immigrants. The order declares that the children of immigrants lacking permanent legal status and temporary visa holders may no longer obtain American citizenship at birth—a brazen violation of the 14th Amendment and more than 120 years of Supreme Court precedent that unambiguously enshrines this guarantee into law. Three district courts promptly issued nationwide (or “universal”) injunctions, which prohibit the administration from implementing the order anywhere, against anyone. This kind of relief has grown more common in recent years: Presidents Barack Obama and Joe Biden saw key aspects of their agendas thwarted by universal injunctions—which were upheld by this very court—as did Trump in his first term. Now, in his second term, Trump has been persistently frustrated by these injunctions—though that is largely because he has issued an unprecedented number of obviously unlawful policies via executive order. (Sometimes these judicial blocks are styled as temporary restraining orders, or “administrative stays,” but they’re essentially the same thing.)

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On Friday, the Supreme Court abruptly revoked lower courts’ ability to freeze a law or executive order on a “universal basis.” These injunctions, Justice Amy Coney Barrett writes for the majority, “likely exceed the equitable authority that Congress has granted to federal courts.” Barrett claims that this authority extends only if a universal remedy “was available in the High Court of Chancery in England at the time of the founding” and in “founding-era” American courts. After a fairly brief historical survey, she concludes that it was not. Barrett insists that in the late 18th century, these courts refused to extend relief “beyond the parties” to the case itself. And she claims that Congress imported this standard into American law through the Judiciary Act of 1789. “Because the universal injunction lacks a historical pedigree,” she concludes, “it falls outside the bounds of a federal court’s equitable authority under the Judiciary Act.”

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As Justice Sonia Sotomayor points out in her furious dissent, Barrett’s history lesson is, at a minimum, dubious: There is a “long history of injunctive relief granted to nonparties,” including in the Court of Chancery and early American courts. And those injunctions are “analogous” to universal relief granted today. Just as importantly, Sotomayor writes, the Framers designed the federal judiciary “to adapt to new circumstances,” giving it discretion to “protect rights and redress wrongs” through “flexible remedies that have historically benefited parties and nonparties alike.” Nothing in law or history forbids today’s courts from issuing universal injunctions when they are necessary to provide “complete relief” to those whose rights have been violated.

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But behind this battle over history is a deeper dispute over the dangers of taking away universal injunctions right now, under a president who respects virtually no limits on his power. And for Sotomayor, the assault on birthright citizenship is Exhibit A. Although CASA is not explicitly about this issue, Sotomayor spends many pages explaining why the 14th Amendment clearly grants birthright citizenship to the children of immigrants, regardless of their parents’ legal status. “Few constitutional questions can be answered by resort to the text of the Constitution alone,” she writes, “but this is one.” History and precedent too confirm that Trump’s order is grievously unconstitutional: “As every conceivable source of law confirms, birthright citizenship is the law of the land.”

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Related From Slate This Supreme Court Decision Is Devastating—and an Ominous Sign of Things to Come Read More

But Sotomayor is concerned not just about this particular right: “No right,” she warns, “is safe in the new legal regime the court creates.” From this point on, courts will have to limit their relief to the parties, denying judges the ability to stop an unconstitutional policy dead in its tracks. The Trump administration will take immediate advantage of this decision: It currently faces more than two dozen nationwide injunctions, and it can now compel judges to severely cut back the scope of those orders. The president can resume implementing many elements of his agenda, including the illegal impoundment of appropriated funding, foreign-aid cuts, voter suppression, and immigration restrictions. Sotomayor decries this outcome, writing:

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The rule of law is not a given in this Nation, nor any other. It is a precept of our democracy that will endure only if those brave enough in every branch fight for its survival. Today, the Court abdicates its vital role in that effort. With the stroke of a pen, the president has made a “solemn mockery” of our Constitution. Rather than stand firm, the Court gives way.

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“Such complicity,” she concludes, “should know no place in our system of law.”

Justices Elena Kagan and Ketanji Brown Jackson joined Sotomayor’s dissent in full. Jackson also penned a separate dissent that used even harsher rhetoric to accuse the majority of, in essence, crowning Trump a king. The court, the justice writes, has created a “zone of lawlessness within which the executive has the prerogative to take or leave the law as it wishes.” As this “lawlessness” flourishes, “executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.” She condemns the decision as an “existential threat” to democracy and civil rights, one that “will surely hasten the downfall of our governing institutions, enabling our collective demise.” And she expressed her “deep disillusionment” with the court for giving Trump this immense gift.

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It is unclear what, exactly, will happen in this case, or the many others involving nationwide injunctions against Trump. Can anything fill the void once those injunctions are shrunken down to size? Both Barrett and Sotomayor suggest that class actions might work as a substitute—but the Supreme Court has spent years weakening class action lawsuits, and they are notoriously difficult to win. (Indeed, Justice Samuel Alito, joined by Justice Clarence Thomas, wrote a concurrence exhorting lower-court judges not to use class actions as the new default.) Barrett’s majority opinion does not even explain what should happen in a case like this one, in which 22 states argue that they need a universal injunction to avoid an “unworkable” patchwork in which children’s citizenship flickers on and off when they cross state lines. What other kind of remedy could possibly grant these states the “complete relief” they seek? Nobody knows.

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Perhaps the most perverse part of CASA, other than its horrific impact on the infants of immigrants, is its timing. For four years, the Supreme Court sat back as a hand-selected group of far-right judges issued a stream of universal injunctions against the Biden administration. Then, barely five months into Trump’s second term, it suddenly cut down the practice. The court has applied an egregious double standard that awards Republican presidents with sweeping authority and presumptive legitimacy while relentlessly curtailing executive power each time a Democrat occupies the Oval Office. No democracy can long survive a regime in which a monarchical president and his black-robed collaborators supplant the Constitution with their own partisan whims.

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[1] Url: https://slate.com/news-and-politics/2025/06/supreme-court-trump-victory-birthright-citizenship-disaster.html

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