Stephen I. Vladeck writes:

It is often difficult to persuade anyone other than lawyers to care about the more technical, procedural minutiae of Supreme Court decisions. But Thursday’s oral argument in three Supreme Court cases challenging President Trump’s efforts to restrict birthright citizenship is a powerful example of how such technicalities can sometimes be even more important than the substantive legal question the justices are purportedly answering.

The Trump administration is asking the justices, in effect, to let the president’s (almost certainly unlawful) limits on birthright citizenship go into effect across most of the country without actually upholding them. If a majority of the court agrees, it will not just lead to widespread chaos and uncertainty over which babies born in the United States to immigrant parents are and are not citizens; it will also make it much harder for courts to halt any unlawful government action on a nationwide — or even statewide — basis. Such a holding would be a self-inflicted judicial wound, one from which the American legal system, and perhaps the rule of law itself, will not quickly recover.

The substantive legal question at the heart of the three cases the court heard on Thursday is whether Mr. Trump can deny citizenship to children born in the United States to at least some noncitizen immigrant parents. Three lower courts (in Maryland, Massachusetts and Washington State) all said no, he could not — and issued what are known as “nationwide” injunctions. Such rulings barred the federal government from relying upon Mr. Trump’s executive order to deny citizenship not just to children born to the named plaintiffs, but also to those born in the United States to any immigrant parent.

In a bit of legal chicanery, the Trump administration is not asking the Supreme Court to hold that the executive order is lawful. Rather, it’s seeking relief it characterizes as more “modest” but which would be, in reality, much broader: It is asking the justices to do away with the use of nationwide injunctions. If the court agrees, lower federal courts could only block government officers from acting against specific plaintiffs and no one else — unless they successfully bring their own lawsuits or the Supreme Court conclusively resolves the question. Not only would filing lawsuits challenging the same federal policy in each federal court across the country take a lot of time and money, but such a ruling would also leave open the possibility that while these cases progress, children born to immigrants could be denied citizenship based on any number of random factors: the rules in the state in which they are born, the status of their parents’ lawsuits and even the date on which they entered the world.

The massive real-world implications of such a technical ruling wouldn’t be limited to birthright citizenship. Many of the dozens of injunctions federal courts have issued against other unlawful behavior by the Trump administration are also “nationwide.” Small groups of plaintiffs have been able to, among other things, halt the Department of Government Efficiency’s access to Americans’ Social Security data, block mass firings by government agencies and require federal agencies to spend and disburse money Congress has allocated. If the administration successfully convinces the Supreme Court to strip federal district courts of their ability to rule on a nationwide basis, the court wouldn’t formally be upholding what Mr. Trump is doing in any one of those cases, but it would be kneecapping many of the current (and future) attempts to block him. [Continue reading…]