SCOTUS' “Nationwide Injunction” Decision Demonstrates a Distressing Passivity Toward’s Trump’s Assault on the Rule of Law
The Court seems uninterested in curbing excessive presidential power
I haven’t fully given up on the possibility that a majority on the Supreme Court has the will and mettle to save the rule of law in America from the authoritarian assault of the Trump Administration (that majority would be Justices Roberts, Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson). But the Court’s extraordinarily obtuse decision last week barring lower courts from halting Trump’s executive order prohibiting birthright citizenship nationwide represents a severe blow to these hopes. The Court’s handling of this case suggests that it is showing up for the gunfight over the rule of law with a butter knife, and that is terribly distressing.
What Are Nationwide Injunctions?
For my non-lawyer readers, a bit of legal instruction is necessary to fully understand what is at stake in this case and why I believe the Court’s decision represents shameful timidity in light of what is transpiring in America during the first six months of Trump II.
On its face, this case is about the power of trial courts (known as “district courts” in the federal system) to block the federal government from implementing a policy while litigation challenging that policy is pending. The full litigation process can take years, so the core issue is whether a policy may be implemented by the government while the judiciary is assessing its legality or blocked (in legal parlance – “enjoined”) during this period.
There is no dispute that a federal district court may block a policy from going into effect by issuing what is known as a preliminary injunction. This type of order may be issued by a court if it finds that it is “likely” that the policy being challenged is illegal and that the plaintiffs in the case will likely experience an irreparable injury if the policy goes into effect. The wrinkle in the cases before the Supreme Court is that the lower court issued a preliminary injunction that barred the government from enforcing Trump’s birthright citizenship policy against not only the litigants in the case, but on a nationwide basis. The Trump Administration has protested that these sweeping injunctions, issued by individual judges, represent improper judicial interference with its power to implement its policy agenda. Nationwide injunctions were also used by litigants to block Obama- and Biden-era policies.
There are undoubtedly some problems with nationwide injunctions. Litigants intentionally file cases in districts where they believe they will be assigned a judge favorable to their case (a practice known as “forum shopping”). If the judge agrees with their position and enters a nationwide injunction, the litigants achieve a sweeping policy result based on only a quick hearing in court that can cause substantial impacts across the country. There are certainly good policy reasons to place limits on this practice.
However, it is not as if the government is helpless. Nationwide injunctions can be appealed immediately, first to a federal court of appeals, and then to the Supreme Court. There are standards for emergency appeals which, if met, results in these courts acting in a matter of days or weeks. These appellate courts can uphold, reverse, or modify the scope of relief that the district courts have ordered.
The Court Acquiesces To Manipulation By the Trump Administration in the Birthright Citizenship Injunction Case
The first indicator of the Court’s passivity towards Trump’s assault on the rule of law is how it allowed, and indeed ratified, a procedural manipulation of the birthright citizenship cases.
Recall that this dispute began with Trump issuing an executive order within hours of taking office reversing the principle of birthright citizenship. This principle has been in place since the founding of the country, written into federal law in 1866, and constitutionally enshrined in the 14th Amendment. Of all of Trump’s exercises of power in the early days of his administration, this one was the most blatantly illegal.
Unsurprisingly, litigation cropped up across the country. The plaintiffs (pregnant non-citizens, immigrant rights organizations, and state governments) sought and obtained nationwide injunctions barring implementation of the Trump executive order.
Instead of appealing these district court loses in their entirety, however, the Trump Administration took the highly unusual tactic of appealing only the scope of the injunction. In other words, the government did not attempt to defend the legality of the Trump executive order to the federal courts of appeals. It only argued on appeal that the lower court exceeded its authority by issuing a nationwide injunction. Then, when the three courts of appeals denied the government’s request to narrow the impact of the injunctions, the government sought Supreme Court review only on the scope of the injunction, not on the underlying legality of the birthright citizenship order.
The Court then granted review on this narrow issue alone. And in its decision last week, the Court prohibited all federal courts from issuing injunctions that provide legal relief to anyone but the parties in the lawsuit. The nationwide injunctions that the lower courts have issued will have to be unraveled. The only people protected from the birthright citizenship executive order will be those who are parties to a pending lawsuit.
While this may seem like a technicality, the way the Supreme Court has allowed this matter to be adjudicated has serious ramifications for the rule of law.
In essence, what the government achieved through this Supreme Court strategy is the power to start enforcing its birthright citizenship policy anywhere in the country where a party has not filed a lawsuit. In short, it may now start denying citizenship to children born to undocumented migrants in many places across the country, even though every court that has considered the issue has ruled that the policy to be unlawful. Nationwide injunctions are also barred for all other cases in which administrative policies have been enjoined. So, for example, if a university in Florida has obtained a ruling that Trump’s NIH grant cancellations are illegal, the government can continue to apply its grant cancellation policy everywhere else in the country. This is executive power eclipsing the law, the very motto of the Trump Administration.
A secondary objective is to increase the cost and difficulty of challenging all administration policies. The new limit on nationwide injunctions will require opponents of administration policies to file lawsuits all over the country or go through the far more cumbersome process of organizing a class action lawsuit. If you see these litigants as your enemy, as the Trump Administration does, this tactic drains the enemy of its resources.
Finally, this tactic has the benefit of delaying the day of reckoning for the Trump birthright citizenship order. Only a losing party can bring an appeal. So, if the government continues to lose cases all around the country on the legality of its birthright citizenship policy, but does not appeal them, it can keep the issue away from the appellate courts and the Supreme Court. Surely, that is what Trump is trying to do—keep his idea of denying birthright citizenship to those born to undocumented migrants alive as long as possible by keeping the issue away from the Supreme Court. It is a duplicitous strategy that is consistent with Trump’s disdain for law and any institution that can restrain his power.
It is shocking that the Court acquiesced to this strategy at all, but especially in a case involving the foundational issues of birthright citizenship.
Allowing the birthright citizenship cases to be heard only on the narrow procedural grounds regarding nationwide injunctions suggests that the justices either have their heads buried in the sand or are willingly oblivious to what is transpiring in this country. The case is taking place when the Court is well aware that the government has deported individuals in direct contravention of lower court orders. In the Abrego Garcia case, the government even flouted the Court’s unambiguous order that it “facilitate” the return of Garcia to the United States by engaging in the fiction that it was powerless to follow the Supreme Court’s order because the President of El Salvador refused to return Garcia. Despite the contempt the government has expressed for judicial intervention regarding immigration, in this case the Court has opened the door to the possibility that the government will start denying birthright citizenship to children of undocumented migrants in the United States. These children and their parents could be deported before these individuals can gain representation and seek judicial relief. Once deported, who knows if the judicial system will ever be able to undo this damage. And, under the Court’s decision, all this could occur even though every court that has considered the issue so far has found that the Administration’s birthright citizenship policy to be illegal.
Furthermore, by accepting this case in this narrow procedural context, the Court has given its blessing to the government’s strategy of enacting policies that are blatantly illegal and then evading judicial review for as long as possible. As Justice Sotomayor points out, there is no guaranty that the government will ever appeal a ruling finding that Trump’s birthright citizenship is illegal and thereby prevent Supreme Court review indefinitely. The 6-Justice majority simply “tut-tuts” in response to this argument, accepting the Solicitor General’s commitment at oral argument that the government will eventually appeal a birthright citizenship case.
In normal times, accepting a government lawyer’s assertion would be normal practice for the judiciary. But we are not in normal times and the Court must know that. It must have watched the Trump-inspired riot across the street at the Capitol and then taken notice of how the judicial process and rule of law were undermined when the violent lawbreakers were all pardoned by Trump. They must also be aware of the unconstitutional actions Trump has taken targeting law firms across the nation solely because they provided legal representation to Trump’s political opponents. Just like the birthright citizenship cases, Trump has lost every single case challenging his executive orders targeting the law firms.
If you don’t think that there is an intentional pattern here, you aren’t paying attention. Trump has no compunction about acting lawlessly. He then does whatever he can to avoid accountability, and claims he has done nothing wrong. He thereby preserves his power to act unlawfully again.
By acquiescing to Trump’s law-evading tactics in this case, the Supreme Court is simply enabling this type of norm-breaking conduct that undermines the rule of law.
The Court Seems Unconcerned about Abuse of Executive Power and Is Obsessed with Limiting Judicial Power at Just the Wrong Time
The power of an unelected judiciary to check the powers of the popularly elected branches of government has been a transcendent issue of American democracy since the founding. It is always wise for the judiciary to take care not to exceed the powers granted to it either by legislation enacted by Congress or the Constitution. But the Court’s decision in this nationwide injunction case seems deeply out of sync with the tenor of our times, failing to even acknowledge the excesses of presidential power being wrought daily and the necessity of judicial power to curb them.
The meta-narrative of our times is that the institutions our democracy relies upon to prevent the abuse of federal executive power are all under siege. It is well documented how Trump has ravaged the rule of law within the executive branch by purging the bureaucracy of nonpartisan civil servants, firing Inspectors General, and using the Justice Department to weaponize the criminal justice system for partisan purposes. Congress has become totally incapable of checking presidential power as it was designed to do, as individual members of the majority party must either abide by Trump’s will, or face a well-funded, Trump-endorsed primary challenger in 2026. Just yesterday, North Carolina Senator Thom Tillis succumbed to Trump’s tactics, choosing to forsake reelection rather than attempt to win a Republican primary after opposing Trump’s “Big Beautiful Bill.” And Trump is continuing a career-long obsession with shaping the media to advance his political and personal interests, using vexatious libel suits to gain retribution for critical coverage and using regulatory power against corporate media owners to hinder the free press.
In this context, the importance of the federal judiciary’s role in enforcing the dictates of the Constitution and ensuring that the executive branch abides by the letter of the extensive body of federal law is more crucial than at any time in history. In no context could this possibly be more important than defining the constitutional requirements of citizenship, the underlying backdrop for the “nationwide injunction” case.
Yet, on this occasion, the Court, in an opinion by Justice Amy Coney Barrett, appears to be entirely focused on a perceived abuse of judicial power rather than the grotesque assertions of executive power represented by Trump’s birthright citizenship order and other actions that are reshaping society on a daily basis.
Without barely mentioning the executive orders that gave rise to the case, Barrett rules for the government based on her conclusion that the nationwide injunctions are not authorized by the text of the Judiciary Act of 1789, an inquiry she asserts hinges on “whether universal injunctions are sufficiently analogous to the relief offered by the High Court of Chancery in England at the time of the adoption of the Constitution and the adoption of the original Judiciary Act.” I am not enough of a legal scholar to challenge Barrett’s conclusion that the answer to this question is “no,” but I do believe that Court’s focus on this arcane question of a 250-year-old law seems deeply out of touch with both the vital immigration issues at stake in the case and the broader crisis facing American democracy. As the dissents point out, there were options for Barrett and the Court other than so dramatically truncating the power of district courts that are in the trenches dealing with Trump’s multiple assaults on the rule of law. Instead, Barrett and the Court seemed determined to curb judicial power, damn the consequences.
Indeed, Barrett gets snippy and defensive when she is called out by Justice Ketanji Jackson for being unduly concerned about runaway executive power and necessity of the judiciary to prevent executive branch illegality. Barrett characterizes as “startling” Jackson’s claim that the role of courts is to “order everyone (including the Executive) to follow the law,” labeling this idea to be “judicial supremacy.” After this bit of name-calling, Barrett declines to “dwell on Justice Jackson’s argument” other than to say that “Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
Unfortunately, this line says everything you need to know about the mindset of the Supreme Court conservative majority as our democracy grapples with the age of Trump. The Court seems far more concerned about the judiciary unduly constraining an elected president (albeit only temporarily until a case gets to the Supreme Court) rather than the massive damage that an unconstrained executive can inflict on American society. That the Court adopted this outlook in a case involving clearly unconstitutional government action, capable of inflicting serious harm on powerless people, raises grave doubts about whether we can rely on this Supreme Court to be the bulwark for the rule of law that we so desperately need.