US Supreme Court Affirms the Imperial Presidency

Justices stripped federal judges of their authority to protect people throughout the U.S. when the president breaks the law, writes Marjorie Cohn.

By Marjorie Cohn
Truthout

Continuing in their shameful deference to the president, Donald Trump’s lackeys on the U.S. Supreme Court once again affirmed the superiority of the executive over the other two branches of government.

Last year, the high court ruled that presidents are immune from prosecution when they carry out official functions. Now, that same court has stripped federal judges of their authority to protect people throughout the nation when the president breaks the law.

More than two dozen nationwide (“universal”) injunctions blocking several of Trump’s policies were in effect as of mid-May. Those policies include a more stringent voter ID requirement; a rule requiring that mail-in ballots be received by Election Day; an effort to freeze $3 trillion in federal spending to review whether the disbursement of those funds aligned with administration policies; a demand that public schools eliminate DEI programs or risk losing some of the $75 billion in federal funds; and allowing over 25,000 children to enter deportation proceedings without lawyers.

Trump v. CASA, Inc. came to the Supreme Court as a challenge to Trump’s Jan. 20 executive order purporting to unilaterally outlaw the constitutional guarantee of birthright citizenship. But in its June 27 ruling, the high court didn’t actually decide the citizenship issue, which they kicked back to the lower federal courts.

Instead, in a shocking decision, the Supreme Court held that federal judges cannot issue universal injunctions for actions that are almost certainly illegal. “Never before has the Supreme Court imposed such restrictions on the ability of courts to provide relief against unconstitutional acts,” Berkeley Law School Dean Erwin Chemerinsky wrote in The Los Angeles Times.

The Supreme Court granted the request by the Trump administration to partially pause three federal court rulings that had blocked Trump’s executive order.

Those courts had determined that only nationwide injunctions would provide the plaintiffs with complete relief because people constantly move in and out of states, and children born to noncitizen parents in a non-plaintiff state may later reside in a plaintiff state, and vice versa.

Trump will likely continue to be barred from enforcing his order against the pregnant plaintiffs who challenged it. But the decision could affect any case in which a federal judge makes a ruling that encompasses people beyond the individuals who actually filed the lawsuit.

The Supreme Court left open the question of whether courts could block government actions nationwide when there is no narrower judicial approach possible.

Trump’s Order Purports to End Birthright Citizenship

Section 1 of the 14th Amendment to the U.S. Constitution — known as the “Citizenship Clause” — reads,

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Congress codified the Citizenship Clause in the Nationality Act of 1940.

In the 1898 landmark decision of United States v. Wong Kim Ark, the Supreme Court held that the 14th Amendment guarantees citizenship to virtually all individuals born in the U.S. with exceptions for children of foreign diplomats or enemy occupiers.

Although Wong Kim Ark included children in Indigenous tribes as an additional exception, Congress explicitly granted citizenship to them in the 1924 Indian Citizenship Act.

Trump’s executive order says that, beginning on Feb. 19, 2025, children born in the U.S. will no longer be treated as citizens if their mothers were not in the U.S. lawfully and their fathers were not U.S. citizens or lawful permanent residents.

It also denies citizenship to children whose mothers were legally in the country on a temporary basis (such as under the Visa Waiver Program, or with a student, tourist, or work visa) and whose fathers were neither citizens nor lawful permanent residents.

The order would deny about 255,000 children nationwide their birthright to citizenship each year. It would also effectively cut federal funding for foster care services for neglected and abused children, as well as early interventions for infants, toddlers, and students who have disabilities.

On Jan. 21, 22 states sued Trump and some of his department officials in a U.S. district court in Massachusetts. The plaintiffs requested a declaration that Trump’s order violates the 14th Amendment to the Constitution and U.S. laws, and they sought an injunction preventing its enforcement.

Similar lawsuits were filed in the states of Washington and Maryland.  In all three cases, federal district judges granted injunctions and blocked the operation of Trump’s order nationwide while the legal issue worked its way through the courts.

U.S. District Court Judge John C. Coughenour in the Western District of Washington called the executive order “blatantly unconstitutional.” The First, Fourth and Ninth Circuit Courts of Appeals affirmed the district courts’ injunctions.

Thirty days after the Supreme Court’s ruling [on July 26], Trump’s executive order could go into effect for people in the 28 states that haven’t challenged it in court, unless those individual parents hire their own lawyers to mount their own legal challenges.

‘Government Likely to Suffer Irreparable Harm’

In a 6-3 ruling, the radical right-wing majority of the Supreme Court overturned the injunctions. They didn’t rule on whether Trump’s executive order was constitutional. Instead, they held that federal judges cannot prevent him from implementing it on a nationwide basis.

Amy Coney Barrett, writing for herself, Chief Justice John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, admitted, “No one disputes that the Executive has a duty to follow the law.” Nevertheless, the majority held,

“Nothing like a universal injunction was available at the founding, or for that matter, for more than a century thereafter. Thus, under the Judiciary Act, federal courts lack authority to issue them.”

The majority said that

“… the Government is likely to suffer irreparable harm from the District Courts’ entry of injunctions that likely exceed the authority conferred by the Judiciary Act.”

Barrett admitted that a “patchwork injunction” would “prove unworkable” because “[c]hildren often move across state lines or are born outside their parents’ State of residence.” But the majority left it to lower courts to decide whether a “narrower” freeze would be “appropriate.”

The Supreme Court’s ruling anticipated proceedings in the lower courts about how much the injunctions should be narrowed for the plaintiffs. The majority suggested class-action lawsuits to challenge Trump’s order on behalf of groups of affected plaintiffs who were not parties to the three pending cases.

‘No Right Is Safe in the New Legal Regime’

Responding to the new condition for citizenship Trump created in his executive order, Sonia Sotomayor wrote in her powerful dissent, in which she was joined by Ketanji Brown Jackson and Elena Kagan:

“Besides birth, there is only one condition: that one be ‘subject to the jurisdiction’ of the United States. Yet that condition too leaves no room for ambiguity. To be ‘subject to the jurisdiction’ of the United States means simply to be bound to its authority and its laws.”

Sotomayor charged that

“this Court endorses the radical proposition that the President is harmed, irreparably, whenever he cannot do something he wants to do, even if what he wants to do is break the law.”

The government “falls well short of satisfying its burden to show that it will likely suffer irreparable harm absent a stay and that it will likely succeed on the merits of its challenge to the scope of the injunctions,” the dissent says. In fact, the notion that the executive branch would be “irreparably harmed by injunctions that direct it to continue following settled law,” Sotomayor wrote, “strains credulity.”

Indeed, it is pregnant people whose children would lose the benefits of citizenship under Trump’s order who would suffer irreparable harm. The majority, Sotomayor wrote, “does not contend otherwise.”

Sotomayor also noted that the government didn’t ask the Supreme Court to rule that Trump’s executive order is constitutional, which would be “an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice.”

Instead, Sotomayor wrote, the government “tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone. … This Court’s precedent establishes beyond a shade of doubt that the Executive Order is unconstitutional.”

Sotomayor notes that the majority didn’t identify a single case from the founding era to the present in which the Supreme Court held that federal courts can never issue “universal injunctions or broad equitable relief that extends to nonparties.”

“No right is safe in the new legal regime the Court creates,” according to the dissent. “Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship.”

Ruling ‘Existential Threat to the Rule of Law’

Trump’s effort to abolish universal injunctions “is, at bottom, a request for this Court’s permission to engage in unlawful behavior,” Jackson wrote in her separate dissent. She calls the majority’s decision “an existential threat to the rule of law,” adding, “With deep disillusionment, I dissent.”

The consequence of the Supreme Court’s ruling is that only children born in the U.S. to noncitizen parents who have filed separate lawsuits stand a chance of enjoying their constitutional right to birthright citizenship, she noted.

Jackson said that economic status will determine whether individuals can vindicate their constitutional rights going forward. “The wealthy and the well connected will have little difficulty securing legal representation, going to court, and obtaining injunctive relief in their own name if the Executive violates their rights,” she wrote. But

“the zone of lawlessness the majority has now authorized will disproportionately impact the poor, the uneducated, and the unpopular — i.e., those who may not have the wherewithal to lawyer up, and will all too often find themselves beholden to the Executive’s whims.”

Ruling Will Lead to ‘Scattershot System’

In his concurrence, Kavanaugh admits that “the regular movement of the American people into and out of different States and regions, would make it difficult to sensibly maintain such a scattershot system of federal law.”

More than 300 lawsuits have been filed to block Trump’s executive orders since the beginning of his second term. Federal judges have halted or limited many of his actions. But the high court has allowed several of them to continue while the legal issues they raise are pending.

Now separate lawsuits would have to be filed in all 94 federal districts in order to challenge the constitutionality of executive orders or federal laws.

Class-Action Lawsuits

The Supreme Court suggests that people can file class-action lawsuits in lieu of seeking universal injunctions. Class actions allow groups or individual plaintiffs to bring a lawsuit on behalf of a larger class of individuals who have been victims of similar government policies.

Kavanaugh cited the possibility of “statewide, regionwide or even nationwide” class action relief. But in order to be certified as a class, plaintiffs must satisfy several statutory hurdles.

After the Supreme Court’s ruling, two new class-action lawsuits were filed to temporarily block Trump’s order from applying to members of the “putative class” of people who would be impacted by it. Both suits alleged that the order violates the 14th Amendment and the Nationality Act of 1940.

Casa, Inc.; Asylum Seeker Advocacy Project, Inc.; and expectant and recent mothers filed in Maryland for a class action. Plaintiffs proposed a class definition of:

“All children who have been born or will be born in the United States on or after February 19, 2025, who are designated by Executive Order 14,160 to be ineligible for birthright citizenship, and their parents.”

As the plaintiffs wrote:

“Absent citizenship, children born to noncitizens, including the children of Plaintiffs, Members, and members of the putative class, may be subject to deportation. These children may therefore be forced to leave the country of their birth to travel to a place where they have never been, where they may have no family or legal ties, and, in the worst cases, where they may face torture, persecution, and death.”

In the other case, the national ACLU, ACLU of New Hampshire, ACLU of Maine, ACLU of Massachusetts, Legal Defense Fund, Asian Law Caucus and Democracy Defenders Fund filed a class-action lawsuit in New Hampshire on behalf of a proposed class of babies subject to Trump’s order, as well as their parents. Their proposed class includes:

“All current and future persons who are born on or after February 20, 2025, where (1) that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, as well as the parents (including expectant parents) of those persons.

Both lawsuits cited facts showing that they met the numerous requirements for class certification, which are set forth in Federal Rules of Civil Procedure 23(a), 23(b)(2), and 23(g).

Even if the class is certified and the plaintiffs prevail, other class members would not automatically benefit the way they would after a nationwide injunction. They would still have to hire a lawyer and prove to the court that they are entitled to relief as a class member.

Project 2025 created a blueprint for Trump’s autocratic state and he has moved quickly and decisively to implement it. The Supreme Court granted presidents immunity from prosecution for official acts. And the high court has now ruled that federal courts are powerless to stop executive branch lawbreaking on a nationwide basis.

But the resistance will continue to grow as the repression increases. Between 4 and 6 million people participated in the June 14 “No Kings” protests. People are resisting – not only in the courts, but in the media, in Congress, and in the streets.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law and past president of the National Lawyers Guild. She sits on the national advisory boards of Veterans For Peace and Assange Defense, and is the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.

This article was first published by Truthout.

The views expressed in this article may or may not reflect those of Consortium News.

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