A Birthright Citizenship Loss Might Still Give Trump a Victory

Donald Trump’s bid to end birthright citizenship has been routed so far in federal courts, but the case still could provide his and future presidential administrations a win on executive power if the Supreme Court takes it up.

The Justice Department asked the justices on March 13 to limit so-called nationwide or universal injunctions, which have been the subject of increasing ire from the government since the Obama administration.

Scholars say the request, aimed at three lower court injunctions that temporarily halted the administration’s birthright citizenship policy is as good a vehicle as there’s been to eliminate or clarify these kinds of orders.

“This is the chance the federal government has been waiting for,” said Stanford Law professor Mila Sohoni, whose written extensively on universal remedies.

Issued by lone federal judges, universal injunctions have been sought and used by litigants on both sides of the partisan divide to slow directives on environmental policy, national security, and immigration prerogatives.

Noting that there are more than 1,000 active and senior judges across 94 judicial branches, “the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere,” the Justice Department said in its request.

The Trump administration said the problem has reached “epidemic proportions.” District courts have issued more universal injunctions and other short term orders “during February 2025 alone than through the first three years of the Biden Administration,” frustrating the administration’s attempts to radically remake the federal government, the Justice Department said.

Where Republicans had sought to challenge Biden administration policies in the conservative US Court of Appeals for the Fifth Circuit, Democrats are seeking out more liberal circuits like the First, Fourth, and Ninth.

Modest Request

The birthright citizenship order was part of a flurry of executive orders that the Trump administration signed on its first day in office.

Bucking the more than century-old understanding of the Fourteenth Amendment, the order attempted to deny citizenship to children whose parents were either unlawfully or temporarily in the US.

A federal judge in Seattle called the order “blatantly unconstitutional” and expressed dismay that the Justice Department would argue otherwise. “It boggles my mind,” said Judge John Coughenour.

The Reagan-appointee, along with federal courts in Maryland and Massachusetts, prohibited the administration from enforcing the policy nationwide, rather than limiting the relief to only those parties in front of the courts.

As of now, the administration is only asking the justices to weigh in on the appropriateness of that remedy, and not the merits of order. At “this stage, the government comes to this Court with a ‘modest’ request,” it said.

Chief Justice John Roberts requested that the states and others challenging the birthright citizenship policy respond to the administration’s request by April 4.

‘Cosmic Injunctions’

Justices across the ideological spectrum have at times criticized the use of nationwide injunctions.

Justice Neil Gorsuch has referred to them as “cosmic injunctions.” Gorsuch in 2024 explained what he called the “foundational” problem with their use: That they expand the scope of relief judges can provide, which is typically only to those who are a party to the litigation.

Their use “has been in need of the Court’s attention for some time,” Gorsuch said in urging his colleagues to take them up.

Justice Elena Kagan said they have “no political tone” as Republican and Democratic administrations have spoken out against them.

Despite some skepticism and several opportunities to take on the issue, the Supreme Court has yet to do so.

University of Notre Dame law professor Samuel Bray sees one possible reason. He said by the time the cases work their way up to the Supreme Court, the justices often decide the merits, mooting the procedural question of the injunction.

He pointed to Trump v. Hawaii, upholding the first Trump administration’s travel ban against mostly Muslim countries. In agreeing that the Trump administration could enforce the ban, the question of how broadly to prohibit enforcement fell away.

“You never get to the scope of the remedy,” Bray said.

Scholars note how the weakness of the birthright citizenship order makes it a good candidate for a ruling on injunctions.

“Because the administration’s position on the on birthright citizenship is flagrantly illegal, the administration is certain to lose on the merits,” Bray said. “That, in turn, means that the remedies question is more likely to be answered.”

Both Bray and Sohoni pointed to another technical reason why the birthright citizenship issue is a more attractive vehicle for addressing nationwide injunctions. Many of the other cases presenting the issue involve challenges brought under the Administrative Procedure Act, which generally governs agency actions and isn’t in play in the birthright citizenship matter.

Practical Concerns

While legal impediments to addressing universal injunctions might be clear, practical considerations could get in the way.

“Atmospheric problems” around birthright citizenship might stop the court from resolving issues around nationwide injunctions, said Florida State University law professor Michael Morley.

The justices have let the issue go undecided for so long that Morley doesn’t think they wouldn’t want a rejection of nationwide injunctions “to be forever chained” to this issue. “There are closer cases and less controversial contexts” to do so, he said.

Sohoni said the practical consequence of people having to sue the administration individually counsel against cutting back nationwide injunctions, especially for those who might be in the country illegally.

“The stakes are very high,” she said.