The Supreme Court heard oral arguments on Thursday in three cases concerning challenges to President Trump’s birthright citizenship executive order. The question before the high court was not, however, the constitutionality of the EO, but rather whether the lower courts had authority to issue injunctions on a nationwide basis to bar implementation of an EO. You would be hard pressed to know that, though, from the justices’ questions — the overwhelming number of which focused instead on how to stop Trump.
“So, as far as I see it, this order violates four Supreme Court precedents,” Justice Sotomayor declared early in the argument, referring to the Trump Administration’s EO on birthright citizenship. “And you are claiming that not just the Supreme Court — that both the Supreme Court and no lower court can stop an executive from — universally from violating that holding — those holdings by this Court,” Justice Sotomayor further charged. “[W]hy should we permit those countless others to be subject to what we think is an unlawful executive action,” the justice pushed, when a nationwide injunction could immediately remedy the executive branch’s unlawful action.
Justice Kagan likewise framed the question for the Court as how to promptly halt the implementation of a president’s EO which is “dead wrong” on the law. “[E]very court has ruled against you” on the birthright citizenship question, she intoned to Solicitor General D. John Sauer.
“If one thinks — and, you know, look, there are all kinds of abuses of nationwide injunctions, but I think that the question that this case presents is that if one thinks that it’s quite clear that the EO is illegal, how does one get to that result in what time frame on your set of rules without the possibility of a nationwide injunction?” Justice Kagan further questioned the Trump Administration.
Those excerpts were but a few exchanges during the nearly three-hour hearing, with Justices Sotomayor and Kagan monopolizing much of last week’s oral argument with their questions focused solely on a solution: In effect, how do the courts expeditiously stop Trump, other than with a nationwide injunction? In positing this question, Justice Kagan even acknowledged “there are all kinds of abuses of nationwide injunctions . . . ”
From a legal perspective, the two liberal justices have it entirely backwards: The legal question for the justices was not how do courts accomplish their goal of stopping Trump without nationwide injunctions, but rather, do courts have the authority to issue nationwide injunctions?
Hellbound and Down 