The Supreme Court's birthright citizenship case isn't really about birthright citizenship - Vox's Ian Millhiser

[In It to Win It]

Vox

On May 15, the Supreme Court will hear three cases — consolidated under the name Trump v. CASA — which concern his unconstitutional attempt to strip many Americans born in the United States of citizenship. The mere fact that this hearing is happening is significant, as the Court rarely gives cases a full hearing in May, and typically only does so for matters of extreme urgency.

There is no plausible argument that the Donald Trump executive order at the heart of this case, which targets birthright citizenship — the constitutional principle that nearly anyone born in the United States is automatically a citizen — is lawful. As Judge John Coughenour, a Reagan appointee who was the first judge to block the order, said from the bench, “I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is.”

That said, the specific legal questions before the Court have little to do with birthright citizenship. At least three courts issued “nationwide injunctions” against Trump’s anti-citizenship order, meaning that lower court judges handed down orders that bind the entire federal government and prohibit Trump from canceling anyone’s citizenship anywhere under his executive order.

The question of whether a single federal trial judge may issue an order that binds the entire country is fraught and has been hotly disputed for years. During the later days of the first Trump administration, Republican Justice Neil Gorsuch published an uncharacteristically persuasive concurring opinion arguing that these nationwide orders must be reined in.

Gorsuch argued that injunctions — court orders that either require a party to take a particular action or forbid them from doing so — are “meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit.” When one judge can go much further, halting an entire federal policy nationwide, that creates an asymmetry. “There are currently more than 1,000 active and senior district court judges,” Gorsuch wrote. In a world with nationwide injunctions, plaintiffs can shop around for the one judge in America who is most likely to be sympathetic to their cause, and potentially secure a court order that no other judge would hand down.