A Trump Win On Birthright Citizenship Cases Will Not End Lawfare

On Thursday, the Supreme Court will hear oral argument in three consolidated cases concerning the propriety of the nationwide injunctions entered against the Trump Administration barring implementation of the president’s birthright citizenship executive order. While President Trump seems assured of scoring a victory from the Supreme Court in these cases, a win will do little to stop the lower courts from continuing to flood the country with nationwide injunctions interfering with the Trump Administration’s execution of its American-first agenda.

The reason why is simple: The issue before the Supreme Court is narrow and does not concern the propriety of nationwide injunctions in cases brought under the Administrative Procedure Act (APA). And the majority of nationwide injunctions entered against the Trump Administration since the president returned to Washington came in cases challenging decisions under the APA.

Not so, though, for the cases being heard on Thursday. Those three cases all involve nationwide injunctions entered based on the lower courts’ conclusion that the president’s January 20, 2025, Executive Order concerning birthright citizenship violates the citizenship clause of the Fourteenth Amendment, which provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Legal scholars vehemently disagree over whether that clause guarantees citizenship to anyone born in the United States, or limits such birthright citizenship to persons born in the United States whose parents are legal permanent residents. That question is not yet before the Supreme Court — although it likely will be next term. Instead, the Trump Administration filed an application before the Supreme Court asking the justices to limit the application of the lower courts’ injunctions to those properly before the courts.

The cases come from both west and east coasts, with a federal judge in Washington in State of Washington v. Trump, in a case brought by four states and two individuals, entering an injunction barring “implementation and enforcement” of the President’s birthright EO “on a nationwide basis.” In Maryland, in CASA Inc. v. Trump, two nonprofit organizations and five individuals brought an identical challenge. The federal judge in that case likewise entered a nationwide injunction against the EO’s implementation. And finally, in State of New Jersey v. Trump, a federal judge in Massachusetts granted the plaintiffs there, 18 states, the District of Columbia, and San Francisco, a nationwide injunction against the EO’s enforcement and implementation.

The Trump Administration initially sought stays of the nationwide injunctions from the district courts and the relevant court of appeals: The lower courts denied the requested stays. The president then sought relief in the United States Supreme Court, filing an application for a stay.

In his application for a stay, the president stressed he had but “a ‘modest’ request” for the Supreme Court: Rather than request a stay of the injunction in total, to allow the president’s EO to take effect, the Trump Administration sought only to “restrict the scope” of the preliminary injunctions “to the parties actually within the courts’ power.” In other words, the Trump Administration attacked only the “nationwide” scope of the injunction.

That the Supreme Court scheduled oral argument on the nationwide injunction issue, while the underlying question of the constitutionality of the president’s EO continues to percolate in the lower courts, suggests several of the justices have grave concerns over nationwide injunctions. Further, as the Trump Administration’s brief highlights, five justices — Justices Alito, Barrett, Thomas, Kavanaugh, and Gorsuch — at different times and in various concurrences or dissents, have criticized the use of nationwide injunctions.

Taken in tandem these facts suggest the Trump Administration will prevail in its challenge to the nationwide application of the injunctions. 

Such nationwide injunctions, in the context of the challenges to the birthright citizenship EO, exceed the lower court’s jurisdiction. That jurisdiction is limited, by Article III of the Constitution, to “cases” and “controversies,” which means federal courts may only provide relief to the parties before it and not to “strangers to the litigation.” “Yet that is precisely what the lower courts did in enjoining the enforcement and implementation of the birthright citizenship EOs throughout the United States.”

While it seems likely, then, that the Supreme Court will limit the scope of the injunctions in the birthright citizenship cases, that will not put an end to nationwide injunctions because many of the nationwide injunctions making news since Trump began his second term came about from challenges brought under the APA. And, as the Trump Administration stressed in asking the Supreme Court to intervene in the three cases presently awaiting oral argument, the birthright citizenship cases do not involve the APA.

That the APA is not at issue in the birthright cases proves significant, the Trump Administration stressed, because “[m]embers of this Court have debated whether the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq., authorizes courts to vacate agency action universally.” Here, the Trump Administration cited the contrary opinions of Justice Gorsuch and Justice Kavanaugh, meaning that at least one of the five justices critical of nationwide injunctions, believes such universal relief remains available when a claim is brought under the APA.

So, even if the Trump Administration succeeds in ending the use of nationwide injunctions in cases presenting constitutional or non-APA statutory challenges to government actions, that will not halt the flurry of nationwide injunctions hamstringing the president. 

But the problem here is not that the APA expressly authorizes federal courts to “hold unlawful and set aside agency action” — in effect granting judges the power to render the remedy a nationwide one. Rather, the problem is that the overwhelming majority of injunctions issued based on APA claims should have been denied because the underlying APA claims were meritless.

Until the Supreme Court reins in the lower courts’ misuse of the APA, then, the abuse of nationwide injunctions will continue — even if the Trump Administration prevails in the birthright citizenship cases.

Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.