Birthright Citizenship Reaches The Supreme Court
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From The New York Times, I'm Michael Barbaro. This is The Daily. On Thursday, the Trump administration's effort to abolish birthright citizenship finally ended up in front of the Supreme Court. Today. My colleague, Adam Liptak, on the White House's unusual legal strategy for defending its plan and what it may mean for the future of presidential power. It's Friday, May 16th. Adam, always a distinct pleasure to have you on the show.
It's always good to be with you, Michael.
Let's talk about this case that was argued on Thursday before the Supreme Court. It's genuinely intriguing because it's not directly about President Trump's history-making decision to try to outlaw birthright citizenship, but it's not not about his effort to ban birthright citizenship. So just explain that.
It's really about a threshold question. Three different federal district court judges have taken a look at the order that President Trump signed the day he took office, purporting to do away with birthright citizenship. That is the constitutional concept that if you're born in the United States, you're automatically a citizen. And they found that that executive order was unconstitutional. They issued an injunction saying so. And all three of the injunctions did not only say to the parties in the case that they win and they get the benefit of the court's ruling. These judges did more. They issued nationwide injunctions. They said the birthright citizenship order is unconstitutional everywhere in the country.
They immediately shut it down.
Right. And the administration had a choice. It could have gone to the Supreme Court on the merits, on the constitutionality of the birthright citizenship order, the attempt to ban it. But they did something different. They went to the court and said, we're ready to concede that the plaintiffs in the case, including 22 states— win and the birthright citizenship order doesn't apply to them and people in their states. But we think nationwide injunctions are bad, a pernicious problem. We've been facing a barrage of them, they say, and it's true. And the Trump administration is asking the court to lay down a rule that says you can't bind everyone in the country. You can only bind the parties before you.
Well, before we get to the White House's effort to undercut nationwide injunctions, which seems very central to this case, I want to make sure we establish why the Trump White House would make the kind of concession you just described to 22 states where this was blocked and not try to defend banning birthright citizenship on the merits. Why did they so quickly bypass that option, do you think?
I have what is only speculation, Michael, but I think this is what lawyers call client management. President Trump expected his lawyers to go to the Supreme Court and in order to appease him, they went up on an issue they thought they could win. nationwide injunctions, which have been criticized by many of the justices, and not on an issue that they probably thought they were sure to lose, which is the almost universal consensus that the Constitution guarantees birthright citizenship.
So on to this question of injunctions, nationwide injunctions, why have they, Adam, been so widely criticized?
I think a lot of people think it's odd that the president of the United States should try to do something and a single federal judge at the lowest level of the federal judiciary, one of hundreds of such people, should make a decision for the entire nation. Mm-hmm. that could remain in place for years while the case gets litigated up to the Supreme Court. And then also a second reason, all you need to do is win once. And litigants are likely to sue in parts of the country, Massachusetts, San Francisco, where judges are apt to be sympathetic. to challenges to Trump administration programs and initiatives. But the critique of nationwide injunctions is widespread. It's not particularly ideological.
The Biden administration was not happy about them either.
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