Clarence Thomas Makes the Point of the Day as Supreme Court Hears Arguments in Birthright Citizenship Case
Story by Randy DeSoto
Supreme Court Justice Clarence Thomas made perhaps the most important point of the day during oral arguments Thursday in a case involving federal district judges’ power to issue nationwide injunctions.
The specific case of Trump v. CASA concerns whether federal district courts have the power to impose nationwide injunctions blocking presidential decisions.
On his first day in office in January, Trump issued an executive order interpreting the language of the 14th Amendment, which states only those born to parents “subject to the jurisdiction” of the United States are citizens.
The impact would be that when children are born to people who are not legal residents, the children are not U.S. citizens.
Several lawsuits were filed around the country seeking to block the implementation of Trump’s order. Federal district courts issued injunctions putting it on hold, and then federal appeals courts in San Francisco, Boston, and Richmond, Virginia, upheld their decisions.
Trump U.S. Solicitor General John Sauer argued when being questioned by Justice Brett Kavanaugh on Thursday that the phenomenon of district court judges issuing nationwide injunctions is relatively new in the nation’s history, becoming prominent in the last four or five administrations.
Further, they have been meted out in unprecedented numbers against Trump, with 40 in the last four months, he said.
Sauer directed Kavanaugh to the New Deal under President Franklin D. Roosevelt as a reference point. “There were very, very passionate challenges to nationwide policies during the Roosevelt administration, and they were not addressed by issuing universal injunctions,” the solicitor general highlighted.
Sauer also addressed the Supreme Court’s past rulings on whether lower courts can issue nationwide injunctions.
“So 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,’” the attorney argued.
Then Thomas made the most important observation of the day by asking, “So, we survived until the 1960s without universal injunctions?”
“That’s exactly correct. And in fact, those were very limited, very rare, even in the 1960s,” Sauer responded. “It really exploded in 2007.”
Court watchers do not have a good sense of how the justices will ultimately rule on the matter following Thursday’s oral arguments.
Amy Howe wrote for SCOTUSBlog that the high court was “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.”
USA Today reported that several of the justices appeared to be probing Sauer, looking to find a good alternative to the nationwide injunction.
The lawyer offered one alternative, in many cases, would be a class action lawsuit under current federal court rules. Once a judge establishes a class of people impacted by an executive order, then any person in the class can benefit from the ultimate decision in the case.
Something clearly has to give. A federal district court judge should not have more power than the president to decide national policy.
Only the Supreme Court has national jurisdiction to decide if a president’s policy runs afoul of federal law or the Constitution. And the high court can address any case on an emergency basis, if necessary, and issue a national injunction when appropriate.
This case was not about Birthright; it was filed because of the nationwide injunctions. Clearance is correct. If there is a birthright case, it should be by an individual or class action lawsuit.
“So, we survived until the 1960s without universal injunctions?” Justice Clarence Thomas asks.
“Correct. Those were rare in the 1960s,” John Sauer responds. “It exploded in 2007.”
“From January 7, 2007, the day the Democrats took over the Congress and the Senate.”