Two weeks ago, as many as 11 million Americans marched in cities and small towns across the country to tell Donald Trump, “NO KINGS!” Yesterday, the six Trump loyalists on the US Supreme Court looked down on us and replied, “Wanna bet? Fuck you, you have a king.”
That’s the short version of the Court’s majority opinion in the “birthright citizenship” case. As requested by the White House, the Court sidestepped the merits of whether a president can amend the Constitution with an executive order. Instead, the Gang of Six prohibited federal judges from issuing “universal injunctions” (also called “nationwide injunctions”) that prevent the executive branch from enforcing laws or policies across the USA.
Instead, federal court injunctions will now only protect the plaintiffs actually in the lawsuit, and no one else, until the final resolution of the case. Fortunately, in the birthright citizenship case, state attorneys general also sued on behalf of their states, so the injunctions will at least cover those entire states while the cases move forward.
But in practical terms, that still means that, beginning in 30 days, children born to undocumented parents in states that challenged Trump’s executive order will still be citizens. But kids born in the states that didn’t sue will only be citizens if they have one parent who’s a citizen or permanent resident, while babies born to undocumented immigrants could be subject to immediate deportation. (The EO “only” applies to kids born after it goes into effect, which is entirely bad enough.)
Newsweek put together this handy map of the states that have challenged the citizenship order and those that haven’t. Welcome to your new vision of a Nation Divided.
The one upside here is that immigrant-rights groups who brought the three lawsuits that the Court ruled on yesterday are already filing new class-action lawsuits to stop the EO again, since that’s one of the exceptions in the ruling. It’s just far more difficult and expensive to do a class action.
The idea with a “universal injunction” is if a federal district court is convinced that, for example, an executive order is unconstitutional and would harm people across the country, the court can put it on hold while the case is litigated and goes through the appeals process.
That’s what happened three times before the birthright citizenship case got to the Supremes: Every federal court — three district judges, and then the circuit courts of appeals for those districts — found Trump’s EO laughably unconstitutional. The district courts looked at the EO’s claim that children born to two undocumented parents will no longer be citizens and said, “Well that’s some bullshit, because the 14th Amendment very plainly says anyone born in the US is a citizen.” Then each of them issued a universal injunction saying Trump couldn’t just start deporting babies who are citizens, and made it universal because it would be harmful to have a patchwork of states where some children are born stateless. Then the appeals courts over each of those circuits upheld the orders, after which the administration asked the Supremes to make the lower courts stop cockblocking Great Leader’s fascist desires.
Yesterday, the Supreme Court gave Trump broad permission to do as he pleases, claiming there’s no basis in law or history for universal injunctions. The majority opinion by Justice Amy Coney Barrett might as well have closed with, “Have fun, Your Majesty.”
We aren’t even going to go into the details of English and colonial law that Barrett dredged up as a pretext for that fuckery, because it was obviously a matter of finding shit to support the outcome the majority wanted, nothing more.
As we say, the Court largely ignored the constitutional merits of the birthright citizenship case, because the administration asked only to be rid of those turbulent lower court rulings. Fascists are very good at doing as they’re told.
As a result the Trump administration is already gearing up to challenge the rulings in all the other cases where federal courts have issued nationwide injunctions blocking Trump from illegal actions. It’s going to be a bloodbath.
In her searing dissent (page 54 of the ruling), Justice Sonia Sotomayor, joined by the other two sane justices, Elena Kagan and Ketanji Brown Jackson, explains that it’s really obvious why the administration asked the Court to rule only on universal injunctions: The government knows damn well that it can’t possibly show that Trump’s citizenship order is constitutional. Instead, she says, the government
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. Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit.
The gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along.
In allowing Trump to act as he pleases without lower courts being able to stop him, Sotomayor argued,
The Court’s decision is nothing less than an open invitation for the Government to bypass the Constitution. The Executive Branch can now enforce policies that flout settled law and violate countless individuals’ constitutional rights, and the federal courts will be hamstrung to stop its actions fully.
Sotomayor also notes that there’s no guarantee the Supreme Court will even get the chance to strike down Trump’s citizenship order even after it’s litigated in the lower courts. The order is so obviously unconstitutional that even the most conservative justices have struck it down, so once the cases reach the appeals courts, the plaintiffs will win.
But since those courts’ rulings would only apply in their own circuits, the administration might decide to accept half a loaf and not appeal the cases to the Supreme Court, instead leaving us with a nation where birthright citizenship has been eliminated in more than half of the states, leaving Trump plenty of stateless children to deport.
What’s the word again? Deplorable, that’s it.
In her own dissent (page 98 of the decision), Justice Jackson took a wider view, noting that she agreed “with every word” of Sotomayor’s dissent, and adding that the majority’s “decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.” Trump asked for permission to act illegally until a case makes its way all through the courts, and the Supreme Court gave it to him.
Still, as Sotomayor points out, “in the rubble of its assault on equity jurisdiction, the majority leaves untouched one important tool to provide broad relief to individuals subject to lawless Government conduct”: the option of class-action lawsuits, which she notes are an “imperfect substitute” for universal injunctions, but which must now become the primary means for challenging Trump’s lawlessness.
You know, until too many class action cases go against Trump and the Court decides to find an excuse to bar them, too.
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Trump Pretends He Banned Birthright Citizenship. You Gonna Go Along With That?
[Opinion in Trump v CASA / Law Dork / SCOTUSBlog / Courthouse News]
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