Minor Planet Center

As Stephen Vladeck at the Times points out this morning, the Justice Department is asking the Supreme Court not to rule on the underlying question of whether the 14th Amendment actually grants birthright citizenship, but "more modestly" on the more-technical question of whether a single district judge can issue a nationwide injunction against a governmental policy. Of course, this is anything but "modest": if SCOTUS rules the way the Justice Department would like, it would be an enormous win for the Trump administration, because the ruling would presumably apply to lots of other illegal and un-Constitutional things the administration wants to do.

Nationwide injunctions really are a concern: both major parties have used them -- together with careful judge-and-venue-shopping -- to impede actions by Presidents of the opposite party. Related is the question of "emergency" injunctions, which when the Supreme Court takes them up as part of its "shadow docket" are usually heard and decided very quickly, possibly with no oral argument at all, and a decision issued without signed opinions. Both of these practices have become increasingly common in recent years, and they both feel like "end runs" around the proper administration of law; it would be nice to have fewer of them.

So here's a question: what constitutes a legal "emergency"? To me, it would be something that's likely to seriously harm somebody who wasn't being harmed before. If you've had a particular right for decades, and somebody tries to take it away from you, especially in a way that's likely to be irrevocable in practice, that could well be an emergency. On the other hand, if something has been happening for decades or centuries, it's hard to claim that fixing it is an "emergency". In other words, the decision whether something qualifies for the "emergency" docket should be biased in favor of the status quo ante: even if a long-standing practice does need to change, it probably doesn't need to change so fast that it can't wait for a proper judiciary proceeding.

And that's why numerous courts have accepted cases about birthright citizenship as "emergencies": the Administration's position would apply a decidedly non-obvious interpretation to the 160-year-old Fourteenth Amendment, reverse a 127-year-old Supreme Court ruling, and reverse various Federal laws written in light of that ruling, so there's a strong presumption in favor of leaving those things unchanged. But the courts accepting those cases have all been lower-level courts. Several of them have issued nationwide injunctions against the Administration's policy, presumably on grounds that the decision doesn't depend on detailed facts of an individual case but on the plain language of the 14th Amendment, which is the same no matter what state or district you live in, and the Justice Department is "modestly" asking the Supreme Court to strike down those nationwide injunctions. Ideally, in the Justice Department's view, a lower-court case would apply only to the individuals involved in that case, and would at most set a non-binding precedent within that court's geographic jurisdiction.

An additional wrinkle is that many of the plaintiffs in these cases so far have been (IIUC) not individuals whose citizenship has been denied, but "blue" states concerned about the policy's effect on their people. I don't understand all the implications of this, or what standing the states have.

Anyway, if the Supreme Court overturned nationwide injunctions for the birthright-citizenship question, several weird things would happen.

1) Thousands, and eventually millions, of US citizens would lose their citizenship because they couldn't afford to file individual cases against having their citizenship stripped, or they didn't know how to do so. (Pro bono goes only so far when there are thousands or millions of similar cases in the system at once.)

2) Perhaps more significantly, thousands and eventually millions of US citizens would lose their citizenship because they're afraid to file a legal case. Imagine that your family consists of a US-born toddler, a DREAMer older child, a parent with a legal student visa or green card, and an undocumented parent, and you put your name on a lawsuit demanding that your toddler be treated as a US citizen. You would probably win the lawsuit, but long before it can even go to court, the rest of the family will have been deported (including the DREAMer and the legal resident). Of course, ICE could have deported the family anyway, but there are millions of such families; filing a lawsuit against the Trump administration will presumably jump you to the head of the line.

3) Thousands, and eventually millions, of US citizens might remain US citizens as long as they stay in the "blue" states where injunctions are in effect, but become non-citizens (and liable to deportation) if they ever travelled to other states. As one of the lawyers pointed out at oral argument, not since the Civil War has a person's citizenship depended on what state the person was in at the moment.

4) Thousands, and eventually millions, of nearly-identical cases would make their way through the judicial system. Probably 95% of these would be settled quickly, in favor of birthright citizenship and following the 1898 Supreme Court precedent, but perhaps 5% wouldn't -- and in those 5% of cases, the administration would have gained a new power (in certain parts of the country) that it hasn't had before. Heads I win, tails we tie: I'll play that game as often as I can.

5) Ironically, that scenario (a handful of rogue judges agree with the Administration in dropping birthright citizenship) is perhaps the best case, because the conflicting rulings allow the good guys to appeal to the Supreme Court, which (even with its 6-3 Republican-appointee majority) is unlikely to disregard the plain language of the 14th Amendment and reverse all those precedents. The alternative is that every single judge who rules on this supports birthright citizenship, but only within that judge's jurisdiction, the Trump administration chooses not to appeal to the Supreme Court and nobody else has standing to do so, the case never gets to the Supreme Court, and in the interim, the Administration can keep revoking people's citizenship as stated in 1 and 2 above in any part of the US where there hasn't been a court case yet.

So those are the effects on birthright citizenship. But the Supreme Court is extremely unlikely to overturn nationwide injunctions only on that one issue: they're more likely to overturn nationwide injunctions in general, on a wide category of legal questions. Such as whether the Trump administration is obligated to obey Federal laws on how and when Federal employees can be fired; whether it's obligated to obey Congressional appropriation bills; whether it's obligated to give due process to non-US-citizens before imprisoning or deporting them; whether it can default on (or "claw back") already-approved grants to universities, libraries, museums, and other non-profit organizations; whether it can penalize and blackmail law firms without naming anything specific they've done wrong; etc. etc. In each of these areas, we could end up in a situation in which the administration is constrained by Federal law in some parts of the country and not in others.