Nationwide Injunctions Prevent Trump From Winning While Losing

The US Supreme Court may soon decide whether a single federal judge can stop President Donald Trump from denying the rights of citizenship to hundreds of thousands of newborn babies—even those whose parents aren’t parties to the cases before him.

The Trump administration is asking the court to declare that federal judges lack authority to issue such nationwide injunctions. This week, the House and the Senate held hearings to debate legislation that would do the same thing.

The answer must be that they can. Without nationwide injunctions, the country would be at the mercy of a president eager to disregard federal law for the months or years it could take for the Supreme Court to stop him. Trump would win by losing.

Exhibit No. 1 in the case for nationwide injunctions is Trump’s executive order denying citizenship to the children of undocumented and temporary immigrants.

Twenty-two states, two organizations, and seven expectant parents have all challenged that order in cases brought across the country. Judges unanimously agreed that the order was likely unconstitutional—no surprise considering it violates the clear text of the 14th Amendment to the US Constitution, 125 years of Supreme Court precedent, as well as a federal statute. Three of these judges quickly issued nationwide injunctions barring the government from applying the order to anyone while the cases are pending.

Now the Trump administration is asking the Supreme Court to limit these injunctions to the seven expectant parents alone, and no one else, claiming lower courts lack the power to enjoin the government from applying its policies to nonparties.

The consequences for US newborns would be disastrous. More than 3.5 million babies are born in the country every year. If the executive order goes into effect, all of their parents would need to scramble to ensure these children are recognized as citizens eligible for rights and benefits such as the Supplemental Nutrition Assistance Program, Medicaid, a US passport, and a Social Security number. Meanwhile, the children of undocumented immigrants and temporary legal immigrants—at least 300,000 newborns a year—would be deemed “illegal” by the Trump administration from their first breath, despite the Constitution’s guarantee of birthright citizenship. Some would be born stateless; all could be deported.

The Supreme Court is likely to declare the executive order unconstitutional. But such a ruling wouldn’t come for many months, and it couldn’t undo the harm inflicted in the interim. For the Trump administration, that’s a win.

The birthright citizenship litigation is just one example of nationwide injunctions’ essential role in protecting the rule of law. Such injunctions have stopped the government from deporting noncitizens without due process under the 1798 Alien Enemies Act, forced the Trump administration to rehire thousands of abruptly terminated employees, and required the release of trillions of dollars in funding that Congress already allocated.

Without nationwide injunctions, every person affected by these sweeping and illegal policies would have to file individual lawsuits to protect their rights. Most don’t have the resources to do so—as the Trump administration well knows.

Nationwide injunctions also protect courts from being overwhelmed by thousands of cases challenging the same policies, many of which wouldn’t be eligible for certification as class actions. Even if only a fraction of affected individuals sued, the multiplicity of identical cases would quickly overwhelm the courts. Ending nationwide injunctions would serve Trump’s “flood the zone” strategy in which the goal isn’t to win cases, but to undermine institutions.

If the Supreme Court upholds some of Trump’s executive orders currently being stymied by such injunctions, they would go into effect, as the rule of law requires. The lower courts’ nationwide injunctions will have delayed their implementation, but the harm from maintaining the status quo while determining the legality of sweeping changes in law is minor compared with the harm of upending laws and institutions until the Supreme Court steps in.

Nationwide injunctions are non-partisan. Red states won such injunctions to halt former President Barack Obama’s changes to immigration policy and former President Joe Biden’s student loan forgiveness plan—and rightly so. Regardless of the merits of these policies, it made sense to pause their implementation until the Supreme Court could address opponents’ legal challenges.

Although Republicans may complain that the Trump administration’s initiatives are being enjoined in record numbers, the blame for that lies at the feet of a president who has issued a record number of executive orders in his first 100 days in office. Without nationwide injunctions, he would succeed in unilaterally rewriting the law and seizing power from Congress—at least for the time it takes the Supreme Court to resolve the myriad cases headed its way. The Trump administration would count that as a victory.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Amanda Frost is a law professor at the University of Virginia School of Law. She has testified before Congress on the topics of both birthright citizenship and nationwide injunctions.

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