Will Politics and Practicality Trump Precedent & Separation of Powers in Nationwide Injunction Case?

Prior to last Thursday’s Supreme Court oral argument in the consolidated birthright citizenship cases, most legal prognosticators proclaimed the high court would finally put an end to nationwide injunctions. Afterall, a majority of the justices in concurrences or dissents had criticized the granting of—by single district court judges—injunctions that applied on a nationwide basis and much beyond the few named plaintiffs. Last week’s brutal questioning of the Trump Administration by the justices, left many court watchers less certain of the outcome.

While the Supreme Court scheduled oral argument on the question of whether it should limit the scope of the lower court nationwide injunctions barring implementation of the President’s birthright citizenship EO, several justices focused their questioning instead on the merits of Trump Administration’s position.

“So, as far as I see it, this order violates four Supreme Court precedents,” Justice Sotomayor declared, referring to the Trump Administration birthright citizenship EO. “And you are claiming that not just the Supreme Court—that both the Supreme Court and no lower court can stop an executive from—universally from violating that holding—those holdings by this Court,” Justice Sotomayor further charged.

Justice Kagan likewise framed the issue before the Court as the propriety of nationwide injunctions in a case where the President’s EO is “dead wrong” on the law. Here she stressed in a colloquy with the Solicitor General, D. John Sauer, that “[e]very court has ruled against you” on the birthright citizenship question.

Solicitor General Sauer countered that those were snap decisions reached without the benefit of full briefing. “[O]ur arguments are compelling,” the Trump Administration’s top advocate maintained. And, indeed, General Sauer opened and closed his argument by declaring the President’s executive “order reflects the original meaning of the Fourteenth Amendment, which guaranteed citizenship to the children of former slaves, not to illegal aliens or temporary visitors.”

Both Justices Sotomayor and Kagan appear to not only disagree with Trump on the merits, but also seemingly think the Administration’s argument is “dead wrong.” That presumption pushed them to focus not on the propriety of nationwide injunctions, but rather on how, practically, courts could promptly halt a lawless executive without issuing a nationwide injunction.

This question from Justice Kagan to General Sauer crisply illustrates their focus: “If one thinks –and, you know, look, there are all kinds of abuses of nationwide injunctions, but I think that the question that this case presents is that if one thinks that it’s quite clear that the EO is illegal, how does one get to that result in what time frame on your set of rules without the possibility of a nationwide injunction?”

The Trump Administration offered several options, from use of class actions under Rule 23 to individual lawsuits. Justice Kavanaugh added that vacatur under the Administrative Procedure Act provided another mechanism, although he acknowledged that such universal relief presented a separate issue not before the Court.

The justices pushed General Sauer on how practical these solutions were, for instance asking him whether the Trump Administration would concede the EO could be challenged in a class action lawsuit. General Sauer maintained the issue had not been briefed and that any certification must meet the stringent requirements of Rule 23. He also caveated his argument by noting the Trump Administration may well object on the grounds that a proposed class may lack the commonality and typicality required under Rule 23.

The justices also pushed the Solicitor General on whether the government would accept the decision of circuit courts reached in individual lawsuits and abide by that precedent throughout the circuit. Here General Sauer explained that the government generally follows circuit precedent, but that only a decision by the Supreme Court would establish controlling precedent throughout the United States. At that point, then, the government could not successfully enforce the challenged statute or policy “against anyone, party or not, in light of stare decisis,” the government noted.

Solicitor General Sauer’s refusal to guarantee that lower courts could expeditiously resolve cases involving important constitutional questions either by class actions or by decision by the intermediate courts of appeals, chaffed several members of the high court, particularly his refusal to commit the Trump Administration to abiding by circuit court precedent. Justice Kagan, for instance, bemoaned the three, four, or five years it might take for a case to reach the Supreme Court: And without a nationwide injunction, the government in the meantime would be denying citizenship to an untold number of people born in the United States, she worried.

Justice Roberts interjected that the Court has been able to move much more expeditiously than the posited three or four years. “I think we did the TikTok case in a month,” the Chief Justice noted.

The liberal wing of the Court was not alone in raising the question of practicalities. Justice Alito, for his part, pushed the Solicitor General on “what is the point of this argument about universal injunctions,” given that class certification or litigation by multiple states would result in injunctions nearly as broad?

In response, Solicitor General Sauer rejected the high court’s focus on practicalities. “I think the point is that universal injunctions exceed traditional principles of Article III and they exceed the traditional equitable authority” of the courts, the Trump Administration lawyer stressed.  He also noted that at least with class actions both the Government and the plaintiffs would be bound by the outcome.

Justice Thomas alone seemed laser focused on whether federal court had authority to issue nationwide injunctions, asking both parties whether history taught that such a broad remedy fell within the courts’ traditional equitable power. The responses would prompt the originalist to comment: “So we survived until the 1960s without universal injunctions.”

Both Justices Gorsuch and Barrett commented briefly on the historical question of whether universal injunctions fit within the courts’ traditional equitable authority, seemingly suggesting that a nationwide remedy to non-parties could not be squared with historical practice. Justice Kavanaugh also cited “history” in passing, by noting “it seems to me the technicality of Rule 23 and the history of that provides –23(b)(2) provides a mechanism to do what’s needed here in terms of getting relief to people, . . . ” He added that “this may all be a technicality,” but “the law—we—we care about technicalities.”

The Supreme Court should care about “the law” and “the technicalities.” So, for all the focus in last week’s hearing on the “practicalities,” and the pontificating by some justices on the supposed blatant unconstitutionality of the highly politicized birthright citizenship EO, a decision on the propriety of nationwide injunctions in this constitutional case should turn instead on whether federal courts have the “traditional equitable authority” to enter such universal relief. History suggests not.

But what matters now is what a majority of the justices think—including, as Justice Thomas queried the respondents, whether they believe “pragmatic considerations and the policy considerations should override” history.

May 19, 2025