Name: The Supreme Court Weighs Nationwide Injunctions
Uploaded: 2025-05-18T14:00:00Z
Duration: 7 min 16 s
Description: Journal Editorial Report: Will state efforts to block a birthright citizenship ban hold?

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Journal Editorial Report: Will state efforts to block a birthright citizenship ban hold? Photo: Andrew Leyden/Zuma Press

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Journal Editorial Report: Will state efforts to block a birthright citizenship ban hold?

The Supreme Court Weighs Nationwide Injunctions

Welcome to the "Journal Editorial Report." I'm Paul Gigot. The Supreme Court heard arguments Thursday on President Trump's executive order to ban birthright citizenship and the state efforts to block that order through nationwide injunctions. The US Solicitor General John Sauer argued that federal courts can intervene in specific cases, but universal orders reach too far. Justice Ketanji Brown Jackson was skeptical.

Ketanji: Your argument seems to turn our justice system, in my view at least, into a catch me if you can kind of regime from the standpoint of the executive where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights.

When it comes to birthright citizenship, Justice Brett Kavanaugh questioned how such a ban would play out.

Brett: On the day after it goes into effect, this is just a very practical question, how this gonna work? What do hospitals do with a newborn? What do states do with a newborn?

John: I don't think they do anything different. What the executive order says in section two is that federal officials do not accept documents that have the wrong designation of citizenship from people who are subject to the executive order.

Brett: How are they gonna know that?

John: The federal officials will have to figure that out.

So how might the high court rule? Let's ask UC Berkeley law professor and former Deputy Assistant Attorney General John Yoo. Good to see you, John. Thanks for coming in. Couple of things to unpack. Let's start with the birthright citizenship portion of this argument. What did you learn from the way the justices engaged on that?

What we learned after listening to two hours of this extraordinary oral argument in May when they're usually gassing up their cars for vacation, is that they're not gonna touch birthright citizenship. Outta those two hours, I'd say they talked about it for maybe 10% of the time. None of the justices really defended President Trump's executive order. To the extent there was discussion, it primarily came from Justices Sotomayor, Kagan, and as you saw, Ketanji Brown Jackson, who questioned it, who thought that it might lead to chaos in our country if you had different regimes of deciding who's a citizen and where throughout our country. I think what's gonna happen is that the court is gonna kick this case down the road on the substance of the executive order and really focus on the nationwide injunctions issue about whether a single district judge can halt the entire government's policies nationwide.

Okay. So let's address that nationwide injunctions debate because it really is a big debate. How do you think the justices sorted themselves out here on that question? Was there a majority that you sense for reigning in lower court judges?

It seems so, Paul. If you look at just the opinions that the justices have already signed in the past, it looks like there's at least five justices, all of them appointed by Republican presidents, who want to try to cabin or even bring in an end the idea that a single federal district judge, and there are a thousand in the country-

Paul: Right.

That a single federal district judge can say, I'm not just saying the government's acting illegally and has to, for example here, give you your passport or your Social Security card in this case, but to do it for everybody in the country. The problem here, I think, for conservative justices is that the fundamental limit on the judicial power is that it's limited to cases or controversies. And the Supreme Court, and Justice Scalia was the one who really pushed this idea, was that that means you have to have a real dispute between the people who show up in front of you in the courtroom. Judges aren't there to fix all the problems in the world. They're not even there to correct all the constitutional and federal legal problems. What they do is they decide cases and controversies, which means sometimes, they order the government to stop doing something illegally, but that doesn't mean they can then start having a roving commission to fix every problem in the federal government outside the courtroom.

But what does that mean in this specific case regarding birthright citizenship? Would it mean that the president's executive order would be able to go into place, which would overturn what has been the common understanding about the 14th Amendment and birthright citizenship for decades?

That's a great question, Paul. I think that's the hardest question for this majority I sensed was there is how does this actually work? Does this mean in say, Washington State, Massachusetts and Maryland, where this executive order has been stopped, there, the traditional rule that you identified, Paul, that everyone born in the country, no matter whether your parents are citizens or illegal aliens, you are a citizen from birth, but then what happens in the rest of the country? Does President Trump get to enforce his executive order and deny citizenship to babies who are exactly similarly situated-

Paul: Right.

But happen to be in a different state? It would be a chaotic enforcement of federal law. On the other hand, that happens a lot of times in federal law. Look at the death penalty. You can commit murder in California and be subject to the death penalty. You can walk across the border into Oregon, kill somebody there in the exact same way and not be subject to the death penalty. Federalism does produce these inconsistent results sometimes.

Well, the reaction by lower court judges for nationwide injunctions, and there've been a lot more of them, as you know, from the right and the left. But it's in part a reaction to a much more aggressive president of both parties. Because Congress is often dysfunctional, the executive in saying, we can do this through executive authority. If you don't have lower courts able to impose an injunction, say, against what is a broad national policy that may be unconstitutional, how do you restrain an executive?

Paul, that's actually a very good analysis of what's going on here, is that there's a power vacuum because Congress is not doing its constitutional function of oversight, of restraining the executive. It happens to be that the courts are the place of last resort where executive order overreach gets challenged. Now, President Trump's agenda has been stymied by these nationwide injunctions, and actually, that's where I sense you see a compromise here. I could see Chief Justice John Roberts, who doesn't want to get the court embroiled in partisan Republican versus Democratic politics, he can hand the Trump Administration something of a win by saying, if we end these nationwide injunctions, President Trump's executive agenda can move forward. It doesn't mean Trump's gonna win all these cases, but it's gonna slow down judicial intervention and review. And ultimately, he said this at the oral argument, we're gonna expedite those cases up to the Supreme Court. In fact, he pointed to the court's, I think mistaken, no, I'm sorry, the executive order that Trump mistakenly, I think, issued on TikTok to say, look, we can get a case up in a month. So Chief Justice Roberts, I think, has a compromise here that will be statesmanlike in a way in this fight we're seeing between the executive and the judiciary.

WSJ Opinion: The Supreme Court Weighs Nationwide Injunctions

From the award-winning opinion pages of The Wall Street Journal, the Journal Editorial Report sees columnists and members of the Journal Editorial Board debate the major economic, political and cultural issues of the day. 
From the policy debates to the political fights, each week get critical perspective and the analysis you need on developments from Washington.

WSJ Opinion: The Supreme Court Weighs Nationwide Injunctions

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