In 1836, Dred Scott, an enslaved individual, was transported by those who enslaved him from the slave state of Missouri to a territory (now Minnesota) where slavery was outlawed. Upon his return to Missouri, Scott initiated a federal lawsuit, leveraging a constitutional clause that allows U.S. citizens to sue in federal court.
Scott contended that his residency in a free territory nullified any claim to his enslavement. However, in its 1857 decision, the Supreme Court determined that individuals of African descent, whether free or enslaved, were not eligible for American citizenship. Consequently, Scott was denied the right to sue as a citizen in federal court.
The Dred Scott decision is widely regarded by historians as a significant catalyst for the Civil War. Following the war, the 14th Amendment was ratified in 1868, unequivocally granting American citizenship to any individual “born or naturalized in the United States, and subject to the jurisdiction thereof.” Since then, American courts and presidents—until the Trump administration—have consistently interpreted the 14th Amendment’s “citizenship” clause to mean that anyone born under U.S. jurisdiction is an American citizen.
On January 20, marking the commencement of his second term, Republican President Donald Trump signed Executive Order 14,160. This order stipulated that “United States citizenship does not automatically extend to persons born in the United States.” Deviating from historical precedent, the order specifically excluded infants born to parents present in the U.S. under conditions deemed illegal by authorities. Trump asserted that only individuals legally present in the United States are “subject to” its jurisdiction.
As with many of Trump’s 152 executive orders, this one prompted legal challenges. Among those suing to invalidate this order were 23 states, two immigrant advocacy groups, and five pregnant women. These women used aliases, fearing deportation by the Trump administration if they pursued their right to sue under their actual names.
No standard legal definition of “jurisdiction” aligns with Trump’s narrow interpretation. To date, every court reviewing these cases has found Trump’s order invalid. A judge appointed by Ronald Reagan even described the order as “blatantly unconstitutional.”
On May 15, the U.S. Supreme Court reviewed three of these cases. However, the Court dedicated minimal time to Trump’s reinterpretation of the 14th Amendment, focusing instead on the scope of the lower court rulings.
These cases all pertain to temporary or preliminary injunctions issued while the cases are still progressing through the courts. The concern with these orders is their nationwide applicability, protecting individuals not directly party to the specific court case. Typically, court orders are binding only on the involved parties.
However, in exceptional situations, federal courts can issue “universal injunctions.” These orders halt the contested government action throughout the country, regardless of where the government attempts to implement it.
For instance, when President Barack Obama’s Labor Department sought to restrict certain anti-union practices, a Texas federal judge appointed by a Republican president temporarily blocked the proposed regulation nationwide, not just for the employer who filed the suit.
Similarly, when six Republican-governed states sued to prevent President Joe Biden’s plan for expedited student-loan forgiveness, a federal appeals court in the Midwest suspended the program across the country, extending beyond just those six states.
Presidents from both political parties have long expressed frustration with universal, or nationwide, injunctions. Likewise, Supreme Court justices across the ideological spectrum have raised questions about the appropriateness and even the legality of these orders.
For example, Justice Clarence Thomas in 2018 described them as “legally and historically dubious.” In 2020, Justice Neil Gorsuch characterized their “routine issuance…patently unworkable.” Justice Elena Kagan stated in 2022 that it “just can’t be right” for a single federal judge to halt a national policy “for the years that it takes to go through the normal process.” And in 2023, Justices Brett Kavanaugh and Amy Coney Barrett identified nationwide injunctions as “an important question that could warrant our review in the future.”
This unease was evident during the May 15 oral arguments concerning citizenship and Trump’s executive order. D. John Sauer, Trump’s Solicitor General, presented the administration’s case.
Sauer highlighted what he termed “a host of practical problems” associated with universal injunctions. He argued that because any of the 680 federal judges can suspend a federal law nationwide, such injunctions incentivize “judge-shopping.” Challengers of Democratic presidents often file in Texas, while those opposing Republican presidents tend to seek courts in the Northeast or on the West Coast.
The availability of national injunctions, Sauer contended, also pressures lower courts to make hasty decisions to issue their orders before other courts can. Universal injunctions further risk creating conflicting judicial orders. They create an imbalance: the government must prevail in every court, whereas challengers only need to win in one.
Furthermore, national injunctions on contentious issues can suspend federal actions even in states—including the 27 not involved in these lawsuits—that might actually support the challenged federal policy. Sauer suggested it is preferable not to allow individual federal judges to act as “roving commissions” to rectify all legal wrongs nationwide.
Sauer also argued that when a national remedy is necessary, federal courts have a mechanism known as a “class action,” which protects the interests of individuals not directly before the court. However, he faced difficulty when he conceded that, in these specific cases, the government would leverage legal restrictions on who can initiate class actions to prevent the courts from certifying them.
Additionally, Jeremy Feigenbaum, New Jersey’s Solicitor General, noted that in 23 states, states themselves cannot bring class actions, rendering their availability unhelpful to his clients. Justice Gorsuch also pointed out that class actions are time-consuming. Kelsi Corkran, representing the advocacy organizations and individual plaintiffs, observed that her organizational clients might not qualify for a class action, and her individual clients might be hesitant to step forward as representatives for a class.
Sauer encountered further challenges when questioned about whether the government would honor a judicial order that did not apply nationwide. He responded that only an order from the Supreme Court itself would be respected. Justice Kagan, however, pointed out that if this were the case, and if—as had occurred in these instances—all lower federal courts ruled against the government, the government would have no motivation to appeal to the Supreme Court, instead continuing to search for a lower-court judge who would rule in its favor.
Sauer’s stance led Justice Coney Barrett to express incredulity, essentially asking, “Really?” Justice Ketanji Brown Jackson criticized Sauer’s position, suggesting it would transform the federal courts into a “catch-me-if-you-can” system.
Sauer did not help his case by beginning and concluding his argument with an assertion of the challenged order’s constitutionality, a position to which no justice appeared receptive.
Contrary to the 14th Amendment
Attorney Corkran argued that Sauer and Trump’s position not only appears to contradict the “plain text” of the 14th Amendment but also deviates from “our common-law history, this court’s precedent, a federal statute, and over a century of executive branch practice.”
Justice Sonia Sotomayor concurred, referencing four Supreme Court precedents dating as far back as 1898. She also observed that without a universal injunction pending a final decision, children could be left stateless for years merely because they were born in an unfavorable state. The absence of a nationwide ruling would likely trigger hundreds of thousands of individual lawsuits.
Justice Sotomayor presented a hypothetical scenario that troubled Sauer: If a new president decided to confiscate all firearms, would every gun owner need to file an individual lawsuit to protect their 2nd Amendment rights?
Furthermore, challenging Justice Thomas’s assertion that “we survived until the 1960s without universal injunctions,” Justice Sotomayor cited court orders dating back to at least 1925. She stated that the U.S. has “had universal injunctions in some form…since the founding.”
New Jersey Solicitor General Feigenbaum highlighted additional practical difficulties that would arise without a universal injunction in these cases. Annually, six thousand babies are born out of state to New Jersey residents. Without a national ruling, the citizenship of these infants would be contingent upon their place of birth.
Moreover, if these babies were born in a state that denied them citizenship, they would lack Social Security numbers. This would impose significant administrative burdens on New Jersey in determining their eligibility for government programs restricted to citizens.
National citizenship status would hinge on whether a birth occurred in a jurisdiction covered by a court order. Could Immigration and Customs Enforcement arrest and deport these individuals if they were in Pennsylvania, but be unable to pursue them into New Jersey?
Justice Kavanaugh raised the question, “What do hospitals do with a newborn?” He also questioned the adequacy of the 30-day lag time included in the order for federal workers to understand how to enforce it.
In cases involving court orders, particularly preliminary ones, courts typically weigh the hardships to each party resulting from a ruling in either direction. As New Jersey Solicitor General Feigenbaum emphasized, the citizenship and legal residency of the babies affected by these cases could depend on their location. This uncertainty, potentially lasting for years, was contrasted with the harm to the federal government, which would merely be required to continue a practice it has followed for over a century.