Chloe Miracle-Rutledge is a JURIST Supreme Court Correspondent and a 2L at Georgetown University Law Center in Washington, DC. 

I headed to the United States Supreme Court on Thursday to report on oral arguments revolving around President Trump’s executive order purporting to end birthright citizenship, which has been blocked by numerous lower courts through nationwide injunctions. But before I hunkered down into the press box for a two-and-a-half-hour argument, my life got made when legendary legal journalist Nina Totenberg complimented my shoes twice.

Shortly after taking office, President Trump signed an executive order denying birthright citizenship to children born in the United States to parents who are “unlawfully” in the country. After multiple district courts issued nationwide injunctions to prevent the order from going into effect, and after multiple appeals courts affirmed, the Trump Administration petitioned the Supreme Court, asking them to halt the nationwide injunctions except as applied to specific plaintiffs and states involved in the lower court decisions.

To be clear, the question before the Court here is not about the constitutionality of the executive order. Instead, the question is more of a procedural question about the validity of nationwide injunctions.

However, Thursday’s arguments showed that it is quite difficult to separate the constitutionality of the order from an assessment of the procedure.

U.S. Solicitor General D. John Sauer argued first on behalf of the Trump Administration, maintaining that nationwide injunctions contradict the equitable tradition that prohibits applying injunctions to individuals not involved in lawsuits. In his opening, he invoked constitutional originalism, telling the Court that the order “reflects the original meaning of the 14th Amendment,” which, he argued, was only intended to apply to the children of former enslaved persons. General Sauer also argued that nationwide injunctions have been a persistent “bipartisan problem” through the last five presidential administrations, creating numerous practical issues: they “exceed judicial power,” prevent the “percolation” of novel legal questions, encourage plaintiffs to shop around for favorable forums, and bypass rules about class action lawsuits.

Justice Clarence Thomas started the questioning as always, asking General Sauer about the origins of nationwide injunctions. He seemed to suggest that they lack a historical analog, signaling problems under the constitutional originalism lens favored by the Court’s conservative majority.

Sauer agreed, arguing that the closest historical analogs involved discrete claims for discrete groups, but never broad, nationwide relief, and suggesting class action lawsuits are a more appropriate response.

Justice Sonia Sotomayor pushed back on Sauer’s historical arguments and emphasized the likely unconstitutionality of the order, which, as she sees it, violates at least four Supreme Court precedents.

Chief Justice John Roberts, on the other hand, seemed to see value in Sauer’s percolation theory and did not seem too concerned about inefficiencies arising from removing nationwide injunctions, pointing out that the TikTok case was decided in 19 days.

But other justices seemed hesitant to scrap nationwide injunctions in favor of class action lawsuits or standard individual litigation.

Justice Elena Kagan, prompting General Sauer to assume he was “dead wrong” about the order’s constitutionality, asked whether getting rid of nationwide injunctions would force every single person affected by the executive order to bring an individual lawsuit. Since the government keeps losing in the lower courts, Justice Kagan was skeptical that the case would ever reach the Supreme Court in a scenario without nationwide injunctions, meaning affected individuals who do not have the means to pursue litigation would suffer.

Justice Neil Gorsuch emphasized the hurdles of class certification, questioning if they were appropriate amid immediate and ongoing harms caused by the order. In a similar vein, Justice Brett Kavanaugh addressed the practicality of the government’s approach and whether it was feasible to attain and monitor documentation for every single newborn.

Other justices questioned whether there was any true difference between a nationwide injunction and class action lawsuits in this context. Justice Samuel Alito asked Sauer, “what is the point” of using class actions instead of universal injunctions, and whether class actions avoid the problems the government sees with nationwide injunctions. Justice Amy Coney Barrett similarly wondered whether there was a real difference between a successful class action and a universal injunction. Justice Kagan expressed concern that the government had not confirmed whether it would even allow class certification in this birthright citizenship context.

Next, Jeremy Feigenbaum, the solicitor general of New Jersey, argued on behalf of states challenging the executive order. Feigenbaum urged the Court to deny Trump’s emergency application because the injunction ensured that states get relief from the harm the executive order could cause. He argued that while nationwide relief should be reserved for “narrow circumstances,” it is necessary here since the order could lead to different citizenship rules among states, causing chaos and raising “serious and unanswered administrability questions.” He also touched on the constitutionality of the order, saying there was no need to percolate this issue in the lower courts since the Supreme Court settled this question over a hundred years ago.

In response to the government’s emphasis on class actions, Feigenbaum explained that states cannot join class actions, making it an insufficient alternative to nationwide injunctions. Fielding questions from Justices Gorsuch and Barrett about his proposed alternatives, Feigenbaum suggested that the Court could narrow the circumstances in which nationwide injunctions can be issued, but allow them when alternative remedies are not workable, such as here. Feigenbaum emphasized that even just applying the executive order in some states but not others would be unworkable and pointed to New Jersey, where 6,000 babies are born to New Jersey parents out of state every year.

Finally, Kelsi Corkran, representing the private plaintiffs challenging the order, urged the Court to reject the government’s stay of the preliminary injunction. She began by highlighting the unconstitutionality of the order, highlighting that every lower court that has considered the order agrees that it is “blatantly unlawful.” Corkran also argued that the government is wrong in thinking injunctions cannot apply to nonparties, and that people not involved in lawsuits can benefit from injunctions under extraordinary circumstances or when necessary for complete relief.

Justice Ketanji Brown Jackson asked Corkran to clarify how the Court should view nonparties who are served by nationwide injunctions. Justice Jackson seemed to counter the government’s concerns with nonparties getting relief from nationwide injunction without filing a lawsuit or joining a class themselves. Per Justice Jackson, these nonparties seem similar to any other person who gets incidental benefits from typical litigation.

Overall, the oral argument did not present a clear outcome. As many justices and advocates pointed out, the government does keep losing in the lower courts, and the order appears unconstitutional on its face. But, again, that specific question is not before the Court.

In terms of the procedure and validity of nationwide injunctions, those can be abused, as Justice Kagan pointed out, but they can also be incredibly necessary, particularly in the birthright citizenship context and where class action and individual litigation are not always practical or achievable. Further, getting rid of nationwide injunctions in favor of class actions seems to do relatively little to solve the practical problems the government is worried about. And, because the government keeps losing, without a nationwide injunction, there may be no incentive to get this case up to the Supreme Court for a clear, universal answer.

A decision is expected by late June or early July.