Analyzing the Supreme Court’s Dangerous Decision in Trump v. CASA

The Constitution provides that anyone born in the United States and subject to its jurisdiction is a United States citizen. Today, the Supreme Court decided the case of Trump v. CASA (PDF), a challenge to Executive Order 14160, which seeks to end the right to birthright citizenship for individuals born in the United States whose parents had certain immigration statuses.  

The Court did not decide the merits of whether that Executive Order is constitutional or whether some babies, even if born within the United States, are not U.S. citizens. Instead, a 6-3 majority of Justices decided the case on procedural grounds: they held that the remedy issued by the district courts who heard the case was inappropriate. Three separate district courts had issued a “nationwide injunction”—which the Supreme Court now calls “universal injunctions” — ruling that the Executive Order was unconstitutional and could not be enforced anywhere the United States. The Supreme Court held that these nationwide injunctions are an inappropriate form of relief when they go beyond what is necessary to give the specific parties before the court “complete relief.” In the majority’s view, the district courts should have decided this case only with respect to the parties before it, i.e., the individuals and organizations that challenged the suit. This lawsuit was not a certified class action. 

Importantly, the Court ruled that the Executive Order does not go into effect until 30 days from today.  

As it stands, and as pointed out in the dissent, this ruling raises more questions than answers. Is the Court envisioning that some fundamental constitutional questions, such as birthright citizenship, could have different answers and applications in different parts of the country? Apparently so. For example, if the federal government enacts policies that are clearly contrary to the plain language of the Constitution—such as the end of slavery (13th Amendment), the right of women to vote (19th Amendment), or any other such clearly established tenets of our democracy—district courts may now not be able to issue nationwide relief.  

It is possible that the parties will seek class certification—which the majority appears to view as the appropriate vehicle for nationwide relief—and attempt to obtain nationwide relief on the underlying question. We expect the district courts to issue further orders within the next month. 

An important takeaway for anyone who may be expecting a baby in the next few weeks, is that nothing changes for the next 30 days and anyone born in the United States is still a U.S. citizen. This ruling will make it challenging for courts to craft fulsome relief in cases involving issues of national application, such as those related to immigration policies.