Universal Injunctions Decided
In the “Rock, Paper, Scissors” our federal government plays, who wins? Does a federal court always get what it wants or are there limitations? While hearing cases on the question of “birthright citizenship,” several District Courts claimed the power to rule over the President. I don’t remember seeing that in the Constitution. Now, the Supreme Court has weighed in, deciding in the case Trump v. Casa that lower courts are not so powerful after all.
Subject to the Jurisdiction Thereof
When President Trump signed the Executive Order terminating the unconstitutional view that citizenship is a birthright, it didn’t take long for the lawsuits to fly. With those suits, however, came courts attempting to stop the President using universal injunctions.
Plaintiffs (respondents here)—individuals, organizations, and States—filed three separate suits to enjoin the implementation and enforcement of President Trump’s Executive Order No. 14160. … The Executive Order identifies circumstances in which a person born in the United States is not “subject to the jurisdiction thereof” and is thus not recognized as an American citizen.
The Executive Order does not make up the circumstances of birthright citizenship, it merely implements what the Constitution and U.S. Law already says:
The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.” Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text.
As it plainly states, this Executive Order only identifies what common sense and the explanation of Senator Jacob Howard Merritt, the person who submitted the text “and subject to the jurisdiction thereof” to the joint resolution that would eventually become the Fourteenth Amendment. That means foreigners and aliens do not have a right to citizenship at birth.
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”
Congressional Globe p. 2890
Of course, that little detail has not stopped plaintiffs and courts at all levels from claiming differently.
The plaintiffs allege that the Executive Order violates the Fourteenth Amendment’s Citizenship Clause, §1, and §201 of the Nationality Act of 1940.
There are numerous problems with the plaintiffs allegations. First, that it violates the Fourteenth Amendment’s Citizenship Clause:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Clearly, as I’ve already shown, to be a citizen if you are born in the United States, you must be subject to it as well. Congress agreed with this when they passed the Nationality Act of 1940:
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
Not only does the Executive Order state the language of the Fourteenth Amendment and U.S. Law, but the policy it puts forth merely implements what the Constitution and the law state:
Sec. 2. Policy. (a) It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
Before we get too deep into this opinion, let’s be specific about what the court was being asked. This court did not decide the question of birthright citizenship, no matter how many “news” outlets reported it did so. The question before the court was one of injunctions.
In each case, the District Court entered a “universal injunction”—an injunction barring executive officials from applying the Executive Order to anyone, not just the plaintiffs. And in each case, the Court of Appeals denied the Government’s request to stay the sweeping relief. The Government argues that the District Courts lacked equitable authority to impose universal relief and has filed three nearly identical emergency applications seeking partial stays to limit the preliminary injunctions to the plaintiffs in each case. The applications do not raise—and thus the Court does not address—the question whether the Executive Order violates the Citizenship Clause or Nationality Act. Instead, the issue the Court decides is whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions.
The Trump Administration asked for a stay of these lower court “injunctions” on the basis that they exceeded the authority vested in those courts by Congress in the Judiciary Act of 1789.
Decision of the Courts
As Justice Barrett wrote in the opinion of the court, this case was incredibly important:
The question whether Congress has granted federal courts the authority to universally enjoin the enforcement of an executive or legislative policy plainly warrants our review … It is easy to see why. By the end of the Biden administration, we had reached “a state of affairs where almost every major presidential act [was] immediately frozen by a federal district court.” … The trend has continued: During the first 100 days of the second Trump administration, district courts issued approximately 25 universal injunctions. … As the number of universal injunctions has increased, so too has the importance of the issue.
Imagine that, a nation not ruled by laws but by judges? How is that any different than the very first grievance our Founding Fathers brought against the king in the Declaration of Independence?
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
We declared independence from Great Britain for overturning our laws, so why should courts be granted the same power? The fact is, they weren’t.
The Government is likely to succeed on the merits of its argument regarding the scope of relief. … A universal injunction can be justified only as an exercise of equitable authority, yet Congress has granted federal courts no such power.
It’s important to remember that, other than the Supreme Court, all other federal courts are created by, and therefore regulated by, Congress.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
So where do these inferior courts get their power from? Congress. In this case, the Judiciary Act of 1789.
The Judiciary Act of 1789 endowed federal courts with jurisdiction over “all suits . . . in equity,” .., and still today, this statute “is what authorizes the federal courts to issue equitable remedies,” … Though flexible, this equitable authority is not freewheeling. We have held that the statutory grant encompasses only those sorts of equitable remedies “traditionally accorded by courts of equity” at our country’s inception.
Many of our legal traditions come from our mother country, Great Britain. So when the court asks the question if universal injunctions are the “sorts of equitable remedies traditionally accorded by courts of equity” at our country’s inception,” they are looking back at the High Court of Chancery in England.
We must therefore ask whether universal injunctions are sufficiently “analogous” to the relief issued “‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act.’”
The answer is no: Neither the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding.
While Justice Barrett went into great legal detail when she wrote the opinion, the short answer is, there was no power of Universal Injunctions at the founding of the nation. Justice Thomas brought this out during oral arguments:
JUSTICE THOMAS: So we survived until the 1960s without universal injunctions?
GENERAL SAUER: That’s exactly correct.
There were a few concurring opinions, but they focused on legal details. Important yes, but beyond the scope of this article.
Sotomayor Dissent
Which brings us to the dissents, starting with Justice Sotomayor’s.
Children born in the United States and subject to its laws are United States citizens. That has been the legal rule since the founding, and it was the English rule well before then.
Don’t you just love it when the allegedly best legal minds in the country can’t even quote the Constitution accurately? As I’ve already shown, the Fourteenth Amendment does not say a person just be subject to the laws of the United States, but to the United States itself. Not only was that NOT the legal rule since the founding, if it was we wouldn’t have needed the Fourteenth Amendment.
This Court once attempted to repudiate it, holding in Dred Scott v. Sandford, 19 How. 393 (1857), that the children of enslaved black Americans were not citizens. To remedy that grievous error, Congress passed in 1866 and the States ratified in 1868 the Fourteenth Amendment’s Citizenship Clause, which enshrined birthright citizenship in the Constitution. There it has remained, accepted and respected by Congress, by the Executive, and by this Court. Until today.
It must be nice to simply make up your own history to fit your needs. Yes, the Supreme Court denied citizenship, but not to children born to enslaved blacks, but to all black people.
The U.S. Supreme Court decision in which the Court ruled that African Americans, whether enslaved or free, were not citizens of the United States and therefore did not have the right to sue in federal court.
With this type of academic malfeasance, just what can we expect from the rest of the dissent?
No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from lawabiding citizens or prevent people of certain faiths from gathering to worship. The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit. Because I will not be complicit in so grave an attack on our system of law, I dissent.
Apparently Justice Sotomayor has forgotten the fact she just gave an example that the courts are just as capable of infringing on people’s rights as Congress or the President. So why should they be allowed to make nationwide policy decisions in the form of these universal injunctions, even when the facts do not stand up to the law? For example, Justice Sotomayor points to a previous Supreme Court opinion in support of her birthright citizenship cause, United States v. Wong Kim Ark.
A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution,
Did you notice the line “are subjects of the Emperor of China?” That means when the court found that Mr. Ark was a United States citizen, they completely ignored the language of the Constitution, requiring someone to be subject to the United States, not a foreign emperor. This was a direct violation of their oath of office, not to mention illegally claiming a right not confirmed by the supreme law of the land.
Another example of Justice Sotomayor’s twisted view of history is this statement:
The lawmakers who ratified the Fourteenth Amendment understood that it would extend citizenship to all children born here, regardless of parental citizenship.
As I’ve already pointed out, the man who proposed the amendment added the words “and subject to the jurisdiction thereof” said on the floor of the Senate:
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”
Congressional Globe p. 2890
So, no, Justice Sotomayor, the lawmakers who ratified the Fourteenth Amendment did not understand that citizenship would extend to all children born here. Based on these warped and twisted “facts,” Justice Sotomayor came to the following conclusion:
The rule of law is not a given in this Nation, nor any other. It is a precept of our democracy that will endure only if those brave enough in every branch fight for its survival. Today, the Court abdicates its vital role in that effort. With the stroke of a pen, the President has made a “solemn mockery” of our Constitution. … Rather than stand firm, the Court gives way. Because such complicity should know no place in our system of law, I dissent.
Besides the fact that a Supreme Court justice cannot tell a democracy from a republic, does anyone else find it ironic that Justice Sotomayor is calling for the courts to fight for the rule of law while she not only ignores the law, but makes it up for herself? That is not the rule of law, and neither is it a republic, it is an oligarchy where she apparently wants to rule. Just who is making a “solemn mockery” of our Constitution?
Justice Jackson Dissent
In another example of both judicial hubris and a complete lack of understanding of the law, we have Justice Jackson’s dissent.
I agree with every word of JUSTICE SOTOMAYOR’s dissent. I write separately to emphasize a key conceptual point: The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.
First of all, Justice Jackson is assuming facts not in evidence. She even pointed that out during oral arguments:
But here we are at the beginning of this litigation. No one has determined whether or not the government’s conduct is actually unlawful. We have a district court, several district courts and now courts of appeals that say it is, and so, as an interim matter, we are saying the government has to stop doing it while we litigate the issue of the unlawfulness.
She’s jumped right over the case she is supposed to be deciding, and just assumes that when the President establishes a policy that follows the language of the Constitution and Laws of the United States, it is inherently unconstitutional. (Could that be because of who the President is?) What about the courts acting beyond their legitimate powers, delegated to them by Congress, which is the actual case she’s supposed to be looking at. (Could it also be because she’s afraid her position on birthright citizenship won’t survive a court’s scrutiny?) It appears Justice Jackson also likes to play fast and loose with the facts to get to the decision she wants.
Conclusion
In both dissents, it appears these justices are more concerned about “violating” court precedent than the actual Constitution itself. Justice Sotomayor pointed this out during oral arguments.
JUSTICE SOTOMAYOR: No, we don’t, because the argument here is that the president is violating an established — not just one but, by my count, four established Supreme Court precedents.
I guess her law school didn’t teach her that a court decision is not law. It cannot be “violated” except by the parties to the case. Furthermore, both dissenting justices simply made up “facts” and twisted the law to try to get the decision they wanted. It reminds me of a quote by Ronald Reagan:
[T]he trouble with our liberal friends is not that they are ignorant, it’s just that they know so much that isn’t so.
Thankfully, six of the nine justices seemed to focus on the question at hand, and were willing to follow the law.
Held: Universal injunctions likely exceed the equitable authority that Congress has given to federal courts. The Court grants the Government’s applications for a partial stay of the injunctions entered below, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.
In other words, the injunctions requiring the federal government to give citizenship papers to those who are not legally citizens are stayed, except for those who had sued in these cases. Meanwhile, the same District Courts who issued these injunctions can now get to the task of deciding the underlying case. When a President follows the language of the Constitution rather than the Supreme Court, is that unconstitutional? I expect that to be a twisted set of decisions as well.