In a pivotal Supreme Court hearing Thursday, Justice Clarence Thomas highlighted a revelation that left many conservatives stunned: the nation functioned without widespread nationwide injunctions for nearly two centuries.
“So, we survived until the 1960s without universal injunctions?” Thomas asked during oral arguments in the high-profile case of Trump v. CASA.
U.S. Solicitor General John Sauer confirmed Thomas’s observation, stating, “That’s exactly correct. And in fact, those were very limited, very rare, even in the 1960s. It really exploded in 2007.”
The case centers on whether federal district courts possess the authority to impose nationwide injunctions that block presidential decisions, particularly President Donald Trump’s recent executive order on birthright citizenship.
On his first day back in office this January, President Trump issued an executive order interpreting the 14th Amendment’s language, which specifies that only those born to parents “subject to the jurisdiction” of the United States qualify for citizenship.
The executive order would effectively end automatic citizenship for children born to illegal immigrants on American soil, a significant policy change that immediately drew legal challenges.
Federal district courts quickly issued injunctions halting the implementation of Trump’s order, decisions subsequently upheld by federal appeals courts in San Francisco, Boston and Richmond, Virginia.
During Thursday’s oral arguments, Sauer revealed a startling statistic when questioned by Justice Brett Kavanaugh.
The Solicitor General noted that district court judges have issued an unprecedented 40 nationwide injunctions against Trump’s policies in just the past four months.
Sauer pointed to the Roosevelt administration as a historical reference, explaining, “There were very passionate challenges to nationwide policies during the Roosevelt administration, and they were not addressed by issuing universal injunctions.”
The solicitor general further emphasized the Supreme Court’s past guidance on the matter, stating, “When the [Supreme Court] has considered and addressed this, it has consistently said, ‘You have to limit the remedy to the plaintiffs appearing in court.'”
Despite the clear historical precedent against such sweeping judicial actions, court watchers remain uncertain about how the justices will ultimately rule on the case.
Amy Howe of SCOTUSblog reported that the high court appeared “divided over whether a federal judge has the power to block President Donald Trump’s executive order ending birthright citizenship while the case moves through the lower courts.”
Several justices seemed to be searching for alternatives to nationwide injunctions during their questioning, USA TODAY noted, suggesting potential discomfort with the current state of affairs.
When pressed for alternatives, Sauer suggested class action lawsuits as one possibility under existing federal court rules.
This approach would allow a judge to establish a specific class of affected individuals who could benefit from the case’s outcome.
LISTEN:
Trump posted a scathing Truth Social about birthright citizenship on Thursday.
He wrote, “Birthright Citizenship was not meant for people taking vacations to become permanent Citizens of the United States of America, and bringing their families with them, all the time laughing at the ‘SUCKERS’ that we are!”
“The United States of America is the only Country in the World that does this, for what reason, nobody knows — But the drug cartels love it! We are, for the sake of being politically correct, a STUPID Country but, in actuality, this is the exact opposite of being politically correct, and it is yet another point that leads to the dysfunction of America.”
“Birthright Citizenship is about the babies of slaves,” he continued.
