Trump Birthright Merits Are Key to Justices’ Look at Injunctions

The constitutionality of Donald Trump’s attempt to redefine birthright citizenship is critical to understanding how the Supreme Court will handle his administration’s request to narrow the scope of nationwide injunctions, legal experts say.

The justices on Thursday will consider the procedural question that’s dogged Republican and Democratic administrations—When if ever, can courts issue broad injunctive relief?

Also referred to as “universal” or what Justice Neil Gorsuch calls “cosmic” injunctions, the temporary orders typically block government policies while courts consider challenges to their legality.

The question of whether the president can unilaterally change a more than century-old understanding of the Fourteenth Amendment’s citizenship clause is central to the procedural issue because it helps bring into focus what’s at stake.

The merits question, “while not directly before the court likely in this case at this point in time, will certainly inform all of our understanding of the need for nationwide injunctions,” University of Virginia law professor Amanda Frost said on Bloomberg Law’s “Cases and Controversies” podcast.

Listen: Justices to Consider Procedure in Birthright Citizenship Suit

Policy Question

Nationwide injunctions, once rare, have grown more prevalent in recent years. Federal trial courts have halted immigration, environment, and other executive policies from Obama to Trump to Biden.

The Justice Department told the justices in its birthright citizenship request that nationwide injunctions have reached “epidemic proportions.”

“District courts have issued more universal injunctions and TROs during February 2025 alone than through the first three years of the Biden Administration,” the DOJ said. Lower courts have thwarted efforts to deport migrants alleged to be gang members, fire federal workers, and end federal spending programs.

Instead of challenging the determination of judges in Maryland, Washington, and Massachusetts that Trump’s executive order was likely unconstitutional, the Justice Department asked the justices to undo their injunctions. DOJ called it a “modest request.”

The administration made “a very strategic effort to get to the Supreme Court the nationwide injunctions issue pretty clean,” said GianCarlo Canaparo, a senior legal fellow at the Heritage Foundation.

Canaparo echoed concerns advanced by the Trump administration and other conservatives that universal injunctions are too sweeping in that they apply to non-parties.

The problem with nationwide injunctions isn’t “about geography at all,” Canaparo said in a media call May 8.

Canaparo said courts historically only had the power to prohibit enforcement of a policy to the parties before it, while others experiencing the same harm would need to sue separately.

“If you were in the same district, you could sue, and precedent would probably be on your side,” he said.

The argument that there must be uniform law for some things like citizenship is a policy judgment for the political branches, Canaparo said. As for historical powers for the federal courts to make those decisions, “they’re just not there.”

Anastasia Boden, an attorney at the Pacific Legal Foundation, which often sues the government, said it goes beyond policy in that sometimes nationwide relief is necessary to address the needs of the parties in front of the court.

She illustrated challenges to an executive branch spending program as a good example. The court has heard two challenges to Trump spending policies so far with regard to foreign aid contractors and diversity in education programs.

It can take years for a constitutional challenge to a spending program to make it up to the Supreme Court. And if there’s no nationwide injunction in place, the money may have been spent by time the parties get a decision.

“You can’t claw back that money,” so there’s no effective remedy “unless you get a nationwide injunction that holds the status quo in place,” Boden said.

Real People

But legal experts say the harm to non-parties is another reason why nationwide injunctions should be available in this case. Frost said Trump’s birthright citizenship order would cause harm to potentially millions of Americans if not halted.

The Protecting the Meaning and Value of American Citizenship executive order was singed on Trump’s first day in office. It limits citizenship to those born to US citizens or green card holders.

If nationwide injunctions aren’t available, “that means that 3.6 million children on average that are born in the United States, all of those families every year will have to prove their ancestry and lineage to establish their children’s citizenship,” Frost said. “And about 300,000 children born every year going forward would be denied birthright citizenship and all the benefits of citizenship based on this executive order.”

“That very fact, just articulating that out loud, shows you why we need nationwide injunctions,” Frost said.

And it’s why the merits of the underlying dispute should come into play, even in a discussion about a procedural issue, said Olivia Sedwick, of the Lawyers’ Committee for Civil Rights Under Law.

In a case of this magnitude, which will literally affect everyone and upend our understanding of citizenship, “the utility of a nationwide injunction, to me, couldn’t be more appropriate,” Sedwick said.

“We’re not just dealing with remote academic procedural questions,” she said. “These are questions that have very real time effects on real people.”

The case is Trump v. CASA, U.S., No. 24A884, argued 5/15/25.