Breaking down the Supreme Court case on birthright citizenship

• Link to: Northwestern Now Story

CHICAGO --- The U.S. Supreme Court is hearing oral arguments today in the Trump administration’s efforts to implement the president’s executive order ending birthright citizenship. The primary issue before the Court is whether lower-court judges can issue universal injunctions to block an order nationwide. 

The dispute, which was consolidated from three cases — Trump v. CASA, Trump v. Washington and Trump v. New Jersey — was accepted by justices as an emergency appeal in April.  

The following Northwestern University legal scholars are available to speak to the media. To arrange an interview, please reach out to Shanice Harris at shanice.harris@northwestern.edu: 

• Zach Clopton, professor of law and associate dean of research and intellectual life at Northwestern Pritzker School of Law. In the Q&A below, Clopton breaks down the nuances of the case and what this could mean for the judicial branch moving forward.
• Paul Gowder, professor of law, has been engaged in debates about the history of the 14th Amendment. His research focuses on the rule of law, democratic theory and social and racial equality.
• James Pfander, Owen L. Coon Professor of Law, has expertise in universal injunctions and his teachings focus on the role of judicial systems in constitutional democracies.

Q&A with Professor Clopton:

What is a universal injunction, how does it work?

“When there’s an executive policy, such as an executive order, a party could sue and say the rule is illegal or unconstitutional. If the Court agrees and says the order can’t be applied to anyone, that is what is called a universal injunction. It just means the government can’t apply the rule or order to anyone.”

How did these birthright citizenship cases get to the Supreme Court?

“The parties suing the Trump administration are organizations and states across the country. Universal injunctions were issued with the lower courts saying to the Trump administration that the government cannot enforce this executive order. The Trump administration took this issue to the Supreme Court. They intentionally aren’t arguing about whether the executive order is constitutional or not, rather whether it is appropriate for lower courts to issue an injunction that protects everyone, not just the actual groups that are suing. That’s the question presented to SCOTUS to contemplate.”

Can the justices bring up the constitutionality of the order?

“The justices can bring up whatever they want during the hearing. It wouldn't surprise me if several of the justices talk about whether the order is constitutional or not. For example, a universal injunction might be appropriate when it is very clear that the thing the government is doing is unconstitutional. So the merits might bleed into the injunction question.

“But remember, the question presented is only about universal injunctions. That’s what the decision will be about.”

What can we expect?

“The justices could say universal injunctions are appropriate in some circumstances. Then tell Trump if he wants to appeal the constitutional question, he would have to come back with a new petition. The justices also could say universal injunctions are not allowed. If that happened, the injunctions in individual cases — the actual people who sued — could still stand, but if you are not in one of the groups that was covered by those lawsuits, you wouldn't be protected.

Does that mean that the executive order is unconstitutional as applied to some people and constitutional as applied to others? Yes, and that is exactly why we should have a universal injunction.”

If the Court rules that injunctions are inappropriate and unconstitutional, what does that mean for the judicial system moving forward?

“It could really be bad. People who are in support of getting rid of universal injunctions will say it’s not a big deal because people can still sue on their own. Do we really think that non-citizens who are in this country illegally are going to do a public filing in which they must put their name on a lawsuit, every single one of them individually? It is both impractical and puts them at risk of severe harm. We have procedures like class action lawsuits where someone could sue on an individual’s behalf. But the federal courts have made it a lot harder to get a class action.

“Lastly, we see that individual states are suing the Trump administration. Every resident in that state would be covered in the lawsuit, but what if that resident leaves their state? If someone is a citizen when they are in Illinois, but cross the border to Gary, Indiana, are they not a citizen anymore? We would be in for a lot of problems.”

Additionally, Clopton said he expects the lawyers to bring up United States v. Wong Kim Ark, the 1898 landmark Supreme Court ruling that affirmed the principle of birthright citizenship, and address concerns about the 14th Amendment, which addresses citizenship rights and equal protection under the law.