Whom is citizenship for?
In Defense of a Militant Rule of Law Mechanism
On Thursday, May 15, the US Supreme Court heard oral arguments in what is widely referred to as “the birthright citizenship case.” As some commentators point out, this is somewhat of a misnomer: at stake in this case is not the constitutionality of Trump’s executive order (EO) banning birthright citizenship for certain classes of individuals. Instead, the Court is asked to decide a procedural question: whether lower courts exceeded their authority in placing a nation-wide injunction on the government’s order. Such nation-wide injunctions – of which several have been issued, with the first only three days after the EO was promulgated – have prevented the order from going into effect until a decision on the merits is made.
Make no mistake, the fact that the case turns on a question of procedure, rather than substance, will not make the Court’s decision any less significant. Nation-wide injunctions have proliferated in the last five years, with over half of the injunctions issued since 1963 being issued against Trump administration policies. They have become an increasingly divisive legal tool in what is an increasingly, perhaps even irrevocably, divided constitutional system. I say irrevocably because in the United States the executive and the courts are finding themselves at loggerheads not just about questions of governmental policy, but rather about the fundamentals of the constitutional system – its structure, distribution of power, and underlying ideals– itself. Indeed, it is the latter type of question that is at stake in the “birthright citizenship” case, and it is why labeling it as such may not be a misnomer after all.
A deceptively simple question?
A nation-wide injunction, sometimes also referred to as a universal injunction, is a form of equitable relief that suspends a new governmental policy from going into effect nation-wide to maintain the status quo – and so to avoid irreparable damage to the plaintiff – until the full case can be heard and be decided on the merits. All of the Justices have expressed some degree of misgiving about their recent proliferation and (ab)use at the hands of both conservative and liberal interest groups to halt governmental policies they objected to. Even setting aside their politicized use, it isn’t difficult to understand why nation-wide injunctions are controversial. For one, they empower district courts to block the federal government from implementing its policies nation-wide. They are thus a legal tool that allows the lower federal judiciary to subvert the executive’s authority to govern effectively. What is more, they do so without the full case even having been heard. Instead, by “taking a peek at the merits,” the court decides whether the balance of equities is tilted sufficiently in the plaintiff’s favor to preserve the current status quo until a decision on the merits has been reached. This renders it, in the words of some Justices, a “fast and furious” form of judicial decision-making that runs counter the ordinary emphasis on carefully deliberated decisions on the basis of a fully briefed and litigated set of facts. As Justice Alito grumbled during the oral argument, they also feed off an occupational disease amongst judges (one he himself is arguably heavily afflicted by) to think they are “right” and know what to do, based on snap judgments.
These are all valid concerns. And yet, if the Court were to declare the use of such nation-wide injunctions unconstitutional, or even just significantly narrow their availability, it would strip the lower federal courts of a fundamental and at least moderately successful legal tool to reign in an executive hellbent on dismantling the U.S.’ constitutional structure. And it would be particularly pernicious to do so in this case: “a peek at the merits” of the constitutionality of the birthright EO shows that the equities are overwhelmingly in favor of the plaintiffs, not the government. As Justice Sotomayor and Justice Kagan both emphasized, every lower court decision found the birthright EO blatantly and obviously unconstitutional. Perhaps encouragingly, none of the Justices indicated a belief that the government had much of a leg to stand on on the merits. Justice Kagan didn’t mince words then she told the AG that “if I were in your shoes, I would not approach the Supreme Court with this case.” What is more, the damage – both financial, administrative, and human – of letting it go into effect until a decision on the obvious merits is reached by the Supreme Court would be immense. Leaving the issue to continue to “percolate” through the lower courts, as the Attorney General Sauer suggested, would leave millions in limbo about their citizenship status, and with it, their ability to access social security benefits, health benefits, and so on that require proof of citizenship. As the Attorney General for New Jersey Feigenbaum emphasized, anything less than a nation-wide injunction, e.g. one that only applied to blue states, would create utter administrative chaos; the brunt of which would have to be borne by the states.
Chief Justice Roberts, for his part, seemed convinced these consequences and concerns could be avoided by simply deciding the merits of the case. He insisted that the Court can (and has) moved ‘expeditiously’ in matters that require urgent resolution. This, however, ignores that the government has deliberately chosen not to bring the merits question before the court, presumably because they know they would lose. Indeed, absent the government appealing the lower court decisions, it is not clear how the Supreme Court would be able to hear the case on the merits. It also ignores, pace the recent TikTok case, that the Court cannot take up every single case that requires urgent judicial resolution. And cases there are many: the Court’s emergency docket is flooded with applications by the Trump administration that ask the Court to overrule exactly the type of injunctive relief that it is asking the Court to declare unconstitutional in this case. These include injunctions barring DOGE’s access to sensitive social security data, the termination of temporary protected status for Venezuelan nationals, and the revocation of parole – a temporary right to enter and work in the US – to over 500.000 individuals from Cuba, Haiti, Nicaragua and Venezuela. It shouldn’t surprise anyone that injunctive relief has also been pivotal in the on-going Alien Enemies Act litigation.
In light of this, the real question the Supreme Court should ask itself is not whether nation-wide injunctions exceed the proper judicial role, but rather what the judicial role – especially that of lower courts– ought to be in a constitutional system in which the government is intent on not just “pushing the envelope” with respect to executive authority but to remodel it in an absolutist, king-like fashion.
Nation-Wide Injunctions and the Rule of Law
Justice Jackson made an important point in this regard. As she noted, a key issue with narrowing lower courts’ ability to issue nation-wide injunctive relief is that it would create a catch-me-if-you-can justice system, whereby the government gets to keep on doing what is blatantly unconstitutional until everyone who is potentially harmed by it can retain a lawyer and bring a suit. How can this, she rightfully asked, be consistent with the rule of law?
Justice Jackson’s appeal to the rule of law matters here for two reasons. First, she highlights a key difference that exists between the common-law system of 18th century England, which several of her colleagues believe the U.S. equitable system of remedies to be derived from and which did not ‘contemplate’ nation-wide injunctions, and the contemporary constitutional system of the United States. The difference is that the former was a system in which there was a King. By contrast, in the U.S. contemporary constitutional order, there is no King, just an executive branch with a President at its head, who is tasked with upholding the Constitution. In this system, she reminds us, courts are empowered to say what the law is, whether the executive’s conduct violates the law, and they can, in certain cases, issue injunctive relief to ensure that the lawful status quo is preserved until the court decides on a governmental policy’s constitutional merits.
Second, whatever our view of nationwide injunctions in an ordinary state of play – and by this, I mean a not-so-distant past when there was broad agreement on the fundamental nature of the constitutional system – we are not in ordinary times. And when the political and constitutional context changes, our analysis of the desirability of nation-wide injunctive relief should account for this. And changing it is: whether we are in a ‘constitutional crisis’ or transforming into a dual state, the birthright citizenship EO is just one of countless others that is attacking the fundamentals of the U.S. constitutional order. It is an attempt to undermine a simple, clear, and hard-won rule that established that the government cannot pick and choose who forms part of the American constitutional project. Such a rule is fundamental to how a constitutional system of governance works in general. This is because it ensures that the relationship between the individual and the government whose jurisdiction they are born into is one structured by legal rights and corresponding duties. This legalistic relationship is meant to secure the individual’s status as free and equal, whatever their natural inequalities and/or the governing majority’s views as to the desirability of their addition to the polity. It thereby presents a minimal safeguard against the emergence of a hierarchical, caste-based society from the get-go. But it bears repeating that such a rule is, of course, of particular constitutional significance in the U.S. because it rectified the foundational injustice of slavery that the Court itself had sought to legally entrench in the infamous Dredd v. Scott decision.
A Militant Rule of Law Mechanism?
In a moment like this– when the government attacks a, if not THE, key rule that both codifies and exemplifies (some minimal) adherence to America’s experiment with a multi-racial democracy – the power of courts to declare nation-wide injunctions amounts to a form of militant rule of law mechanism. In a moment of constitutional decay, such injunctive relief appears to be a distant cousin of party bans, democracy’s controversial tool of self-defense that has many supporters in Europe following the continent’s experience with fascism: both arrogate to the judiciary the power to respond to an anti-constitutional actor, both are difficult to defend constitutionally in ordinary times for they seem to expand the judicial role beyond its proper purview.
Contrary to party bans, however, nation-wide injunctions do not suffer from the same democratic concerns. For when courts issue an injunction, all they are doing is suspending the effect of what is a quite evidently unconstitutional action until the merits of the case have been decided upon. Of course, this still fundamentally pits judicial authority against the executive’s authority. But this may not be innately objectionable: part of what any constitutional system does is try to identify an appropriate balance of power between the different branches. And when one of the branches significantly seeks to tilt this balance in their favour, perhaps the other branches are not just in their right but in fact required to push back.
None of this seeks to deny that nation-wide injunctions are a complicated, even dangerous power to grant courts – one that may be incompatible with their constitutional competency in ordinary times. But it is a power that becomes more justifiable, even perhaps necessary, in a system where the courts are facing an anti-constitutional executive as is arguably now the case. Their justifiability, however, says nothing about the effectiveness of their use in stymying the process of constitutional decline. Quite to the contrary, the proliferation of their use is likely to contribute to the further decay of the integrity of the constitutional system. In this regard, they may share another feature with party bans: it is a tool that is most likely to be used when it may already be too late.