Trump Is Tired of Courts Telling Him He's Breaking the Law - The Atlantic [View all]

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The Atlantic - Gift Link

The Trump administration’s relentless assault on the rule of law is a kind of arson: It is setting so many blazes that the fire department is having trouble putting them all out at once. Last week, Donald Trump asked the Supreme Court to cut off the water.

Trump’s executive order revoking birthright citizenship for undocumented immigrants—which flagrantly overrides law, Supreme Court precedent, and the text of the Fourteenth Amendment—has, at least for now, reached the justices primarily as a procedural question. At issue during oral argument before the Court was the constitutionality of nationwide injunctions put in place by district-court judges, rather than the merits of the order itself.

Nationwide injunctions are not an inherently partisan issue—leaders of both parties have complained at one point or another about an overreaching federal judge. But in this case, allowing the federal government to revoke birthright citizenship would create a logistical nightmare for states that would have to figure out how to verify the citizenship of babies in order to allocate or administer benefits. An entire class of stateless infants would be created overnight. Indeed, one could imagine a ruling that narrows the authority of judges to issue nationwide injunctions to specific circumstances but that would still allow for such an injunction in this extraordinary case. That may be where the justices are headed, although there was no apparent agreement at oral argument on how to do so.

After listening to the arguments, I was convinced by Justice Ketanji Brown Jackson’s observation that, in many cases, “universal injunctions” are just the courts “telling the defendant, Stop doing this thing that the court has found to be unlawful.” However frustrating nationwide injunctions may be when you oppose them, they seem preferable to the alternatives floated. Yes, they sometimes lead to judges making overbroad decisions, as with the abortion-medication case unanimously reversed by a very conservative Supreme Court. But the Trump administration’s view that such injunctions are unconstitutional, and that district-court judges should be able to bar the executive order revoking birthright citizenship with respect to only individual parties, would produce even worse outcomes, in which the federal government would be free to trample the constitutional rights of anyone who doesn’t specifically assert them unless the Supreme Court decides to act.