Supreme Court takes on birthright citizenship: Justices appear open to conserving status quo

The Supreme Court heard oral arguments Thursday in a challenge to President Donald Trump’s effort to end birthright citizenship, a case that could more broadly call into question the powers of lower courts to block executive branch actions.  

It’s unclear when the justices will rule, but their decision to fast-track the case means an opinion or order could come within weeks – or even days.

Justices across the ideological spectrum appeared to agree Thursday that the use of universal injunctions has surged in recent years – blocking actions by both Democratic and Republican presidents.

“In the first Trump administration, it was all done in San Francisco,” Justice Elena Kagan said. During the Biden years, “it was all done in Texas,” she added, underscoring how both sides have used the tactic to challenge sitting presidents. 

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Demonstrators hold up signs during a “Hands Off!” protest against President Donald Trump at the Washington Monument in Washington, Saturday, April 5, 2025.  (AP Photo/Jose Luis Magana)

Kelsi Corkran, representing private plaintiffs and advocacy groups, proposed a middle-ground approach: allowing universal injunctions when government actions violate fundamental constitutional rights. If lower courts do get “ahead of their skis,” she said, appeals courts can still rein them in, just as they do now.

U.S. Solicitor General John Sauer used the bulk of his opening arguments Thursday to reiterate the government’s view that universal injunctions exceeded lower courts’ Article III powers under the Constitution, noting that the injunctions “transgress the traditional bounds of equitable authority,” and “create a host of practical problems.”

Universal injunctions “require judges to make rushed, high-stakes, low-information decisions,” he said. “They operate asymmetrically, forcing the government to win everywhere,” and “invert,” in the administration’s view, the ordinary hierarchical hierarchy of appellate review. “They create the ongoing risk of conflicting judgments.”

During a five-minute rebuttal period, Justice Sonia Sotomayor questioned Sauer on what authorities the courts, under their argument, would have in this scenario. 

“Your theory here is arguing that Article III and principles of equity [clause] both prohibit federal courts from issuing universal injunctions to have your argument,” she said, adding: “If that’s true, that means even the Supreme Court doesn’t have that power.”

Justice Elena Kagan, meanwhile, pointed out the practical challenge of expecting the Supreme Court to weigh in on every issue now handled by lower courts, which have already faced hundreds of federal lawsuits during Trump’s second term.

Kagan also noted to Sauer that the Trump administration has lost every federal lawsuit challenging the birthright citizenship executive order, including under judges Trump appointed during his first term. “This is not a hypothetical; this is happening out there,” she said. “Every court is ruling against you.”

“If I were in your shoes there’s no way I’d approach the Supreme Court in this case,” said Kagan, who in fact had previously served in Sauer’s exact role as U.S. solicitor general.

Justice Ketanji Brown Jackson also appeared skeptical, telling the Trump administration lawyer that their argument seems to “turn our justice system, in my view at least, into a kind of ‘catch me if you can regime’ … where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights.”

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Supreme Court Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson are seen in this split image.  (Getty Images)

As expected, several conservative justices on the court expressed skepticism about the use of universal injunctions.

Justice Clarence Thomas, who in 2018 described their use as “legally and historically dubious,” noted Thursday that it was not until 1963 that the first universal injunctions were used, appearing to agree with the government’s assertion that they could survive without them.

But Justice Samuel Alito, for his part, expressed a somewhat surprising degree of skepticism. 

He asked Sauer about the possibilities of plaintiffs seeking emergency class certification, and de facto nationwide relief via other avenues, to highlight the point that blocking universal injunctions would not resolve the practical problems raised by the government.

And if that’s the case, he said, “then what is the point of this argument about universal injunctions?”

U.S. Solicitor General John Sauer.    (Tom Williams/CQ-Roll Call, Inc via Getty Images)

New Jersey Solicitor General Jeremy Feigenbaum, representing the states, acknowledged that there could be alternative remedies for federal courts other than nationwide injunctions – though he suggested that in certain cases, the class action alternative presented by the Trump administration may not move fast enough to grant relief in certain cases.

“We are sympathetic to some of the concerns the United States has about percolation, about running the table in particular cases,” he said. “We just don’t think that that supports a bright line rule that says they’re never available.”

He suggested they should be available in certain cases, including the one currently before the court on birthright citizenship – a case where the “alternative ways of remedying the harm for the parties are not practically or legally workable.”

Roberts and Sotomayor questioned Feigenbaum more in depth on how to determine in what cases universal injunction should not be the preferred remedy and how to ensure district courts are following that.

Justices on the high court agreed in April to hear the case, which centers on three lower courts that issued national injunctions earlier this year blocking Trump’s executive order on birthright citizenship. The order reinterprets the 14th Amendment to deny automatic U.S. citizenship to children born in the U.S. if their mother is unlawfully present or temporarily in the country, and if their father is neither a U.S. citizen nor a lawful permanent resident at time of birth. Trump’s action remains on hold nationwide pending Supreme Court intervention. 

The Trump administration asked the Supreme Court in March to review the case, arguing that the three lower courts in question had exceeded their authority in issuing the universal injunctions.

President Donald Trump also weighed in on the case directly in a post Thursday on Truth Social. “Birthright Citizenship was not meant for people taking vacations to become permanent Citizens of the United States of America,” he said, arguing that the law is about the “babies of slaves” and has nothing to do with illegal immigration.

As it turned out, the oral arguments had very little to do with the merits of the birthright citizenship challenge and focused instead on nationwide injunctions. 

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President Donald Trump waves as he arrives on Air Force One at Miami International Airport, Thursday, April 3, 2025, in Miami.  (AP Photo/Rebecca Blackwell)

“These injunctions exceed the district courts’ authority under Article III [of the Constitution] and gravely encroach on the President’s executive power under Article II,” U.S. Solicitor General John Sauer told justices on the high court in a filing before arguments began.  “Until this Court decides whether nationwide injunctions are permissible, a carefully selected subset of district courts will persist in granting them as a matter of course, relying on malleable eye-of-the-beholder criteria.” 

Plaintiffs told the high court that there is no reason for them to intervene here, objecting both to the executive order in question, which one lawyer described in a brief as “citizenship stripping,” as well as any effort to block the nationwide injunctions. The lower court orders “preserve the status quo that has existed for more than a century, and the federal government suffers no harm, much less irreparable harm, by continuing to follow long-settled laws while the appeals proceed,” Nicholas Brown, the Attorney General of Washington state, said in its filing. 

Oral arguments are expected to focus not only on the lower courts that blocked Trump’s birthright citizenship order – but also on whether federal judges can issue universal injunctions halting executive actions nationwide. The Supreme Court has never ruled directly on the practice, though several conservative justices, including Justice Thomas, have raised concerns.  

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A Supreme Court decision here could have sweeping national implications, setting a precedent that would affect the more than 310 federal lawsuits that have challenged White House actions since Trump’s second presidency began on Jan. 20, 2025, according to a Fox News data analysis.

The consolidated cases before the court are Trump v. CASA, Trump v. the State of Washington, and Trump v. New Jersey.