By stripping judges of the power to block harmful executive actions nationwide, the Court has left immigrant families—and everyone else—more vulnerable than ever.
In a 6-3 decision last Friday, the Supreme Court granted the Trump administration a partial, but crucial, victory in its efforts to stop federal courts from blocking Trump’s agenda. The vehicle for this power grab, CASA v. Trump, is a case about the legality of denying citizenship to children born to parents who are in the U.S. unlawfully or temporarily.
The case came before the Court on an emergency procedural matter regarding the appropriate scope of injunctions. In the majority’s ruling that nationwide injunctions were probably outside the federal judiciary’s authority, and therefore, judges should limit their orders to the parties and plaintiffs before them, it has tipped the balance of power to the president. And that is going to make many people’s lives—immigrants and non-immigrants alike—much more difficult.
As dissenting Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson observed, the majority is taking away the judiciary’s authority to protect the public from blatantly illegal or unconstitutional actions. Writing for the dissent, Justice Sotomayor called the decision an abrogation of the Court’s duty:
“By stripping all federal courts, including itself, of that power, the Court kneecaps the Judiciary’s authority to stop the Executive from enforcing even the most unconstitutional policies.”
No wonder President Trump gleefully called the ruling a victory for the separation of powers, mischaracterizing nationwide injunctions as a threat to democracy. The White House issued a lengthy statement celebrating the decision, chortling, “No longer can rogue, activist judges abuse their authority to dictate the executive powers of the President of the United States, the Supreme Court ruled—a massive victory for the Constitution, the rule of law, and the presidency itself.”
In fact, the president’s delight may be the most disturbing aspect of this decision, as it is grounded in his need for power.
It’s not only about this particular case, but about his mounting frustration with the federal judiciary who have the gall to order his administration to return wrongly deported lawful permanent residents; to block deportations to South Sudan; who challenge his authority to fire federal officials; or to shut down the Department of Education.
It’s about Project 2025’s efforts to remake the executive branch into a purely political tool to carry out a conservative agenda without question or complaint and to stop the judiciary from “interfering.”
It’s about the failures of Trump’s first administration, in which his policies and programs were blocked through 86 nationwide injunctions. (In contrast, only 28 national injunctions were issued against Biden’s policies.) It’s no surprise he is taking a victory lap.
But the vindication is likely short-lived. The majority concluded that the appropriate way to obtain nationwide protection was through class-action lawsuits and delayed the effect of its ruling by 30 days to give the plaintiffs time to regroup. Within hours, the ACLU and others filed a class-action lawsuit on behalf of newborns who could lose citizenship. The plaintiffs in the CASA case amended their complaint to turn it into a class-action. Other immigration rights groups have signaled that they will realign their tactics, but they won’t stop fighting. There’s speculation as well that state-led lawsuits may still qualify for national injunctive relief to protect individuals as they move back and forth across states.
Nonetheless, the Court’s ruling gives the president—any president—a significant advantage because it allows for an uneven application of justice, particularly in cases challenging the constitutionality of executive action. Justice Sotomayor passionately laid out what is at stake:
“The universal injunctions in these cases, however, are more than appropriate. These injunctions, after all, protect newborns from the exceptional, irreparable harm associated with losing a foundational constitutional right and its immediate benefits. They thus honor the most basic value of our constitutional system: They keep the Government within the bounds of law.”
The implications are threefold.
First, in cases involving the restriction of a constitutional right, such as birthright citizenship, whether an individual’s constitutional right exists could depend on the state in which they live and that state’s willingness to challenge the executive order. During the Trump 1.0 and Biden administrations, challenges often fell along blue state and red state lines.
Second, when the harm to the government in carrying out its plans is considered more important than the loss of a constitutional right (part of the Court’s reasons for restricting national injunctions), individuals are going to get hurt. Kate Angustia, supervisory policy and practice counsel at the American Immigration Lawyers Association (AILA), described the possible scenarios:
“The Supreme Court’s decision to limit nationwide injunctions opens the door for a dangerous patchwork of enforcement, allowing an unconstitutional executive order to take effect in some states while others block it. This will create chaos for immigrant women and families—where a baby’s citizenship could depend on the state in which they’re born. It means some newborns could be rendered stateless [or] mothers in the U.S., legally on a temporary visa, could face criminal charges for alien smuggling just by giving birth.”
Angustia told Ms. that many AILA members are reporting that clients are now so afraid, because of this executive order and others, that they are self-deporting. In one instance, a woman left the U.S. in February because she was tired of living in fear, despite her attorney’s assessment that she could win her immigration case.
This kind of fear could easily spread because, as Justice Sotomayor noted in her dissent, anyone could be harmed in the future:
“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 law-abiding citizens or prevent people of certain faiths from gathering to worship.”
The Court opens the door for the government to implement a bad or illegal policy while litigation is ongoing, even if people’s rights are curtailed in the process.
The third implication, as Justice Jackson bluntly and fearlessly noted in her dissent, is that the Court disempowers the individuals most in need of protection—the poor, vulnerable and those most afraid of the government:
“Those in the good graces of the Executive have nothing to fear; the new prerogative that the Executive has to act unlawfully will not be exercised with respect to them. Those who accede to the Executive’s demands, too, will be in the clear. The wealthy and the well-connected will have little difficulty securing legal representation, going to court, and obtaining injunctive relief in their own name if the Executive violates their rights. Consequently, the zone of lawlessness the majority has now authorized will disproportionately impact the poor, the uneducated, and the unpopular—i.e., those who may not have the wherewithal to lawyer up, and will all too often find themselves beholden to the Executive’s whims.”
This, in turn, puts a greater strain on the legal profession, particularly nonprofits and pro bono lawyers who often have limited resources.
Seeking a national injunction has been an important strategy for covering as many people as possible in one lawsuit. Class actions can be more complicated and time consuming and may not reach all the people who should be covered by a case. State governments, as previously noted, often have their own agendas when challenging executive action that may or may not fully address the rights of affected individuals.
Case in point—and one close to my heart—are the extraordinary efforts to challenge the firing of probationary federal workers. These very questions—about the scope of injunctive relief, and the impact of different types of arguments—have resulted in varying outcomes for my former colleagues at the Department of Health and Human Services. My colleagues in red states, who were fired under the same false pretenses as those in blue states, lost their income and their health benefits because their states did not participate in the lawsuit brought by Maryland’s attorney general and were not covered by the injunction protecting the rest of us. It was a terrible feeling to know that someone experiencing the same injustice did not have the same protection because their state had chosen not to challenge the executive action. The government argued, across several different lawsuits, that it faced irreparable harm if it could not fire us while the cases were litigated; the Supreme Court agreed on procedural grounds, and eventually most of us were fired again, even though the underlying legal question is still before the courts.
Imagine this same scenario, but substitute free speech, or search and seizure, as the legal issue in question to get a sense of how devastating the limit on national injunctions could become.
One important point lost in all the handwringing over national injunctions, however, is that people will use whatever tools are available to fight for their rights.
When the number of national injunctions increases, one must wonder why. A Harvard Law Review analysis of nationwide injunctions identifies six issued against presidential actions during George W. Bush’s eight years in office, 12 during President Obama’s two terms, 64 during President Trump’s first term and 14 during the first three years of President Biden’s term. A subsequent analysis by the Congressional research service found 86 nationwide injunctions for Trump and 28 for Biden by the completion of his term.
It is telling that of the 86 national injunctions President Trump faced in his first term, 46—more than half—involved immigration matters. During President Biden’s administration, eight of the 28 national injunctions issued were about immigration.
While the Harvard study concluded that most nationwide injunctions turn on the hot-button issues of a president’s term, I suspect it is more than that. Congress has been so hopelessly deadlocked on immigration for the last 30 years that the tools available to shape immigration policy have increasingly been only those available to the executive. Presidents Obama and Biden were challenged on their efforts to expand immigration programs that allowed people to remain in the country. Trump was repeatedly challenged—and lost—on his efforts to restrict the rights of refugees, immigrants, asylum seekers and citizens, including trying to invalidate birthright citizenship.
So, thank goodness there was a rash of nationwide injunctions during the first Trump administration. It didn’t signal an abuse of power by the courts, but by the president. Nationwide injunctions quickly kept Trump from harming people and violating their rights.
Now that this tool has been severely contained, we can only hope that the remaining tools can keep the president in check. Our children, and our future, deserve nothing less.
