After Supreme Court decision: Birthright citizenship still protected in 22 states - courts can issue injunctions for states - and classes of people can still be protected nationwide with a workaround
First, any child born in the USA is still a citizen, with a few exceptions such as children of invading armies and diplomats. If you are an undocumented immmigrant, or a non citizen visiting the US legally but without a green card in one of the states marked yellow here, then nothing has changed for your child when you give birth after 30 days from now.
If you are in one of the states marked in gray - your child is still a US citizen, but you may need more than your birth certificate to establish this.
TEXT ON GRAPHIC:
Hypothetical situation on July 27 if the attempts at emergency registration of a putative class and at broadening state to national injunctions both fail.
Babies of undocumented immigrants or other non citizen residents in the 22 yellow states will still be automatically recognized as US citizens at birth.
Once citizenship "switches on" it likely stays on.
Babies born in other states likely get their citizenship "switched on" at some point after travelling to those states
May have solution for other states: emergency certification of a putative class.
- VERY FAST like an injunction.May be resolved with class actions. If not, sure to be organizations that pay for undocumented mothers to travel to "safe" states to register their babies as citizens.
Even in the gray states the justices can issue an injunction for a putative class of all the undocumented immigrant babies - but some districts may not recognize it.
Yellow: States with automatic birthright citizenship (22 states)
Gray: Other states where it may be necessary to take out a case to establish birthright citizenship of newborn babies of non citizens.
Generated with https://www.mapchart.net/usa.html
List of 22 states here https://abc30.com/post/list-states-suing-trump-administration-birthright-citizenship-executive-order/15823795/
The states are: Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.
State level injunctions remain and this means that birthright citizenship is protected for the 22 states shown in yellow.
Newborn babies will still have class injunctions for a putative class - a legal workaround already used by the Supreme Court to stop deportations of undocumented Venezualan immigrants.
However that approach means that an undocumented immigrant has to appear before a court to get citizenship for their baby and with the current administration they risk both mother and child being deported before the case can be completed.
So in practice rather than run that risk it’s possible that undocumented mothers would travel to one of the safe yellow states shown in the graphic to get their child’s social security number.
During oral arguments in April, the justices predicted chaos and vast numbers of judicial cases for birthright citizenship.
If it does become a patchwork, the courts will have to decide matters such as
What exactly counts as birth in a state - e.g. what if a baby is born while traveling to another state
When does citizenship “switch on” in a state that has a state-wide injunction - as soon as the baby crosses the border - more likely they have to fill in some form or other such as get a social security number there
Can citizenship switch off again when the mother leaves a safe state - the answer here is pretty certain to be “no” but the courts may need to look at it.
Though - all that depends on the government challenging them in the courts. If the government doesn’t challenge, I’m not sure if these matteres will be settled.
Situation in gray states - may need to go through extra legal process to get your child’s social security number
Depending how the law pans out in the next 30 days, you may also need to go through some legal process to establish that your child is a child of two non citizens before you can get your child’s social security number.
The reason is that Trump claims that only children of non citizens who are former slaves get birthright citizenship. He has no right to reinterpret the US constitution, as president and this goes against the constitution as interpreted by the Supreme Court in 1898 and settled law.
Every court that has seen this agrees that the executive order is unconstitutional, that Trump has no right to interpret the consittution, and that the constitution can’t be interpreted in this way, based on that 1898 decision. But the Supreme Court hasn’t yet given a uniform way to block the executive order for all the states at once. Only for the states with Democrat governors that took out the law suit.
So, for now, everyone who has a baby in one of the states marked in gray will need to prove legally somehow that their child doesn’t have to be a child of a former slave.
Legal experts are working to find the simplest way to do this given that it’s not feasible to have hundreds of thousands of cases to establish this for all the babies born every year in the gray states of non citizens.
There is a method that will work for most but not all cases based on classes of people rather than universally for the entire USA.
CASA Inc. have already put this in place within hours of the Supreme Court decision.
QUOTE STARTS
The plaintiffs, CASA Inc. and the Asylum Seeker Advocacy Project (ASAP), along with a group of expectant and recent mothers, amended their lawsuit in the US District Court for the District of Maryland to seek class certification on behalf of all children born in the US on or after February 19, 2025, whose parents are neither US citizens nor lawful permanent residents. Such individuals were declared ineligible for citizenship under the president’s executive order.
This is part of a three part strategy:
QUOTE The strategic shift required three court filings: one to add class allegations to the initial complaint; a second to move for class certification; and a third asking a district court in Maryland to issue "a temporary restraining order or preliminary injunction asking for relief for that putative class," Powell said.
https://www.npr.org/2025/06/27/nx-s1-5448863/birthright-citizenship-supreme-court-ruling
The hearing on the putative class of children and parents subject to the order will be heard immediateloy at almost the first possible opportunity since the ruling at 2pm EDT Monday June 30th (7 pm UK time)
This is the legal text defining the putative class for emergency relief
https://www.aclu.org/cases/barbara-v-donald-j-trump?document=Complaint
Or it may be simpler to just move to a yellow state or go there temporarily to give birth or soon after birth
Amanda Frost, professor of law at the University of Virginia, advised expectant mothers to consider moving to states that have sued, as quoted by the Washington Post, while immigrant advocacy organizations urged “wait-and-see”:
QUOTE STARTS
If no nationwide relief is granted, whether a child is granted birthright citizenship could come down to what state they are born in. “As of 30 days from today, if you give birth in a state that has not sued the Trump administration, the government may treat your child as undocumented, as not a citizen,” Frost said.
Frost advised affected members to consider moving to states that have sued. Some immigrant advocacy organizations urged a wait-and-see approach as lawyers scrambled to look at the next legal steps.
We will have a much better idea of the legal landscape and what the advice is for expectant mothers who are in affected states 30 days from now.
From the oral arguments in April it might also work to just visit a yellow state with your newborn or go there just to give birth and get a Social Security Number there and return to your home state once you have that piece of paper.
This depends on the details of the legal situation.
If you are an expectant mother in one of the gray states and it is easy to move to one of the Yellow states to give birth - maybe stayign with friends, it might be a good moment to choose to take a holiday in a yellow state to give birth.
But the legal situation is changing rapidly. If that’s difficult wait and see, there may well be organizations to help you with funding to do it if it is required.
Still possible that the states that already have state level injunctions might be able to extend them to universal injunctions nationwide
There are still state level injunctions, that’s the reason for the yellow states in the diagram.
Also the Supreme Court hasn’t decided the question of whether a State can take out a universal injunction - if they do then this may end up back at the Supreme Court again and may be a way to block it universally throughout the USA in a different way.
The California attorney general Rob Bonta believes that they will prevail in the lower courts and get a nationwide injunction that way - which would then find its way back up to the Supreme Court again.
QUOTE STARTS
“We believe that we will prevail and that we’ve made the case already, and when the lower courts, under the instruction of the US Supreme Court, do that review, we will secure a nationwide injunction to provide relief to the plaintiff states,” California Attorney General of California Rob Bonta, a Democrat, told reporters.
“It’s now up to the lower courts to reconsider if the nationwide injunction is appropriate and necessary to provide complete relief to the states whose AG’s sued to challenge this order,” he said.
https://edition.cnn.com/2025/06/27/politics/takeaways-birthright-citizenship-supreme-court-decision
All existing universal injunctions remain in place - have to be challenged one by one and then the justices narrow them
Also all the existing universal injunctions remain in place for now and have to be challenged one by one by the government and then sent back to the judges to redo them - which will probabaly end up replacing lots of them by this new method of a class injunction of a rapid emergency certification of a putative class of people.
They remain in place but will be returned to the judges to narrow the scope of the injunction to protect only those individuals or organiations that sued.
QUOTE STARTS
Injunctions blocking federal policies (e.g., agency actions under executive orders) must be scaled back to cover only the plaintiffs in each case, not all similarly affected individuals. Therefore, if a district court bars enforcement of an executive order nationwide, it must presumably modify the injunction to protect only those individuals or organizations that sued.
Cases with overly broad injunctions will likely be returned to district courts for refinement. The Supreme Court explicitly directed lower courts to reassess whether narrower relief suffices.
The new method in brief, emergency certification of a putative class of babies born to non citizens
SCOTUS has given ways to block Trump’s executive orders nationwide but the class injunction approach is more complicated and can have gaps in it.
It’s very quick to do an emergency certification of a putative class, almost as fast as a universal injunction. CASA inc. is already on the case https://www.politico.com/live-updates/2025/06/27/supreme-court-rulings-decisions-today-news-analysis/class-action-lawsuit-in-00427992
QUOTE The justices stayed their decision for 30 days, potentially allowing time for a new class-action lawsuit with national scope. But if Trump’s order goes into effect, Weiser said it could create a “chaotic” situation, where babies born to undocumented parents in Colorado are granted citizenship, but not in other states.
https://www.cpr.org/2025/06/27/scotus-ruling-birthright-citizenship-protected-in-colorado/
Hopefully that will be sufficient. It will work for almost anything else and it should work fine for babies born to legal non citizens.
It’s possible that some justices with unusual philosophies may refuse to certify the emergency class for their districts, leaving gaps, districts not covered.
Why this new method might run into issues especially for children of undocumented immigrants - because they might fear being detained by ICE if they show up in a court
However, it is possible it might not work so well in this case in some states for babies born to undocumented immigrants. That is because mothers might risk deportation with their kids just for being an illegal immigrant before they can get a court decision for their child.
That's because of the way under the Trump administration, ICE has been waiting outside courts to detain undocumented immigrants after their court cases. https://www.nbcnews.com/news/latino/immigrations-arrests-ice-deportations-courthouse-legal-process-ice-rcna209671
Check with immigrant rights organizations in your state for the latest advice in this rapidly evolving situation
So it is possible that in this particular situation it may be safer for mothers to travel to the safe states either to give birth or as soon as possible after giving birth [This is something came up in the oral arguments]
It is a rapidly evolving situation as organizations work out the implications of the case. If they do have to travel to establish citizenship, you can be sure that there will be organizations that pay for the travel to do so, as for abortion and LGBT cases.
Trump has 30 days to decide his ruling so that gives mothers and advisory agencies 30 days to prepare and for new injunctions based on class actions to be prepared.
How long this will continue - potentially to the end of Trump’s presidency - next president can reverse the executive order on jan 20th 2029 if the public vote in a president who pledges to reverse it
This situation could potentially persist to the end of Trump's presidency as they are not required to take the case to the Supreme Court to settle it on its merits even though every justice that sees it has ruled against the government.
Also, since this is an executive order by Trump, a future president can reverse it on day 1. That may well be a vote winner in 2028 if this situations remains until then.
Congress set up the judiciary in 1789 and could pass a new law to give the judges the ability to issue universal injunctions - or to curb an unconstitutional Executive Order in other ways
Congress set up the judiciary in 1789 the same year that the constitution came into effect - it was given this power by article 3 section 1 and 2.
The judges were ruling on what powers Congress gave to justices in 1789 and the originalists decided that based on the very limited evidence of common practice in the USA leading up to 1789. That is why they decided against universal injunctions.
Universal injunctions are constitutional and Congress could in future simply update the 1789 act by saying explicitly that judges can take out universal injunctions.
A future Congress could also in principle restore universal injunctions by updating the 1789 Judiciary act and explicitly giving courts the power if there is enough support for this amongst the electorate. Congress could enact a new law authorizing nationwide injunctions:
Ilya Somin: Finally, Congress could potentially enact a new law authorizing nationwide injunctions. As I read it, the majority decision does not preclude this. It doesn't hold that nationwide injunctions are unconstitutional, but merely that they are not authorized by current law.
https://reason.com/volokh/2025/06/27/a-bad-decision-on-nationwide-injunctions/
That’s implausible under the present government, would require a 2/3 majority in both houses, but it may be possible with a future president favorable to the idea if he or she can get a filibuster proof majority in the senate and a majority in the house favorable to such a change.
Trump can’t be impeached but Republicans may lose votes on this
Trump can’t be impeached for this - some people have asked that. But it seems a likely vote winner for the next president to run on a manifesto to restore birthright citizenship if this situation persists through to 2028, possibly also running on a platform to restore universal injunctions.
Also it will surely will increase the votes against the Republican party in special elections and the mid terms.
Trump has a very slender margin. In his first term he lost three seats in the House in special elections. If the same happens this term he loses the House before the mid-terms.
Why did the justices decide this way? Not to help Trump - because of judicial philosophy - would have decided the same way if Biden had passed an executive order to remove assault rifles from Americans without going through Congress
I talk about this later in the blog post. Sadly I don’t find ANY legal blogs that go into any detail about WHY the justices made this decision. They will do this later in papers, in conferences and text books analysing the decision.
The legal blogs focus on the practical implications of the decision and don’t have the analysis I was looking for.
However NONE of the experts say their decision is in any way improper.
It is not done to support the government.
The Supreme Court Justices are formalist, textualist, structuralist and originalist in a very extreme way compared to most justices - because Republican presidents choose justices that decide that way.
I can’t ask the authors of a legal blog to explain. But I do nowadays have access to Perplexity AI which is a chatbot that does accurate citing and used carefully can give good answers especially on legal questions.
If Perplexity AI got this right, the conservative justices made this strange decision based on
originalism
constitutional avoidance
judicial minimalism
formalist separation of powers
the principle of sovereign harm from judicial overreach
After a long analysis the chatbot concludes:
Perplexity AI: The Court's reasoning thus exemplifies how formalist constitutional interpretation can produce outcomes that appear to favor government power while actually reflecting deeper commitments to institutional roles and textual fidelity. The irreparable harm finding flows not from sympathy for Trump's policies, but from principled application of separation of powers doctrine that would apply equally to future administrations seeking to protect executive authority from judicial overreach
https://www.perplexity.ai/search/scbd-analysis-of-why-in-terms-wI45jstRTeKz8hC0wPg5kQ?1=d#1
So - that’s the best I have to date.
CHATBOTS OFTEN GET THINGS WRONG
However one thing is clear, that the justices would make the same decision no matter what the underlying unconstitutional Executive Order was - because they didn’t even look at it in their decision.
So, they would have decided the same way for a Democrat president if he followed the exact same playbook.
It’s not suprrising in a way, as the Supreme Court justices have spoken up againt universal injunctions many times. It’s just that this is the first time ever that a president has asked them to rule on whether courts have the power to issue universal injunctions. But what is surprising is the extent to which the justices were able to use those principles to insulate their decision from its effects.
So how would it happen with a Democrat president?
Democrats often want to restrict gun ownership. Biden wanted to remove all assualt rifles possessed by Americans. Biden called many times on Congress to ban those weapons and renewed those calls after an assault weapon was used to shoot Trump. https://www.bbc.co.uk/news/articles/cd1x4xjvrgdo
Biden would go through Congress of course. He wouldn’t take them away with an executive order. Also his request is constitutional, it is to repeat a ban that was in place before: https://en.wikipedia.org/wiki/Federal_Assault_Weapons_Ban
But suppose he had just issued an EO. For a more exact analogy some Democrat president ordered the removal of all guns owned by Americans (not Biden’s objective).
Then of course justices would have swiftly issued universal injunctions against the unconstitutional oder to remove all guns.
But now suppose that the Democrat president follows Trump’s playbook and asks the justices to just rule on whether the justices have the authority to take out a universal injunction.
Then the Supreme Court would have decided the same way as it did in this case. Then the lower courts would have had to change their universal injunction to an injunction for a putative class of gun owners.
More on that below:
How we got here: the Trump administration’s bizzare claim that the 14th amendment only applies to children of slaves - they lose every case taken against them
All babies born in the US are US citizens by the US Constitution as usually interpreted - with a few exceptions of things like children of ambassadors and children born on ships in harbours
The US government has a very eccentric interpretation - it says that the 14th amendment which guarantees citizens to babies of non citizens only applies to children of slaves.
Not one justice agrees with them. But this means you have to take out a legal case against the government to prove that a child of an undocumented citizen or of parents with visas is a US citizen.
The government loses every case taken out against them. But they never appeal so it never goes to the Supreme Court.
So courts tried to take out a universal injunction to settle it once and for all for the entire USA. But the Supreme Court says that is not permitted.
The 22 states with Democrat governors joined the law suit CASA Inc. V. Trump. This means that the injunction DOES apply to those 22 states. The Trump executive order is blocked in those states.
Judges of other states can also issue state level injunctions to block Trump’s order, but ones with Republican governors are not going to do that.
There is a solution, emergency authorization of a putative class and hopefully that is in place by 30 days from now. But it still has problems because a mother would have to prove that she is undocumented before she can get protection as the undocumented mother of a child born in the USA. The Trump administration might then deport her before her baby is registered.
This is why even with class injunctions mothers might have to travel to the yellow states to get their babies registered as a citizen to avoid the risk of deportation if they do it in their own state.
But we don't know yet how it will work and there are 30 days to find out.
Decision is based on orignalist interpretation - class injunction sare okay for the conservative majority because they are more like how the law was interpreted in 1787 - while liberal realists point to how universal injunctions have been in place for over a century
As to why they decided this way, it was an originalist ultraconservative decision based on how the 1787 Judiciary act was understood in 1787.
Back then they used Peace bills which cover classes of people and so are roughly equivalent to modern class injunctions. In 1787 they had nothing resembling a universal injunction according to the originalist majority.
The Liberal justices who have a realist judicial interpretative philosophy see the law as a living entity with the interpretation changing as society changes. They all voted against this decision based on changes in how the 1787 law has been understood since then.
It wasn’t based on which president the justice votes for in elections. It was based on how the law was understood in 1787 and whether the justices had a liberal / realistic philosophy that allowed them to account for changes since then.
Judicial reasoning is designed to be clear and easy to follow and they have to set it all out on paper. They voted as they did because of the reasoning they gave.
I come from the UK where this is never even questioned. Justices in the USA when asked about how they make decisions agree that they set up a clear and unbreachable wall between their own personal opinions and the legal decisions which have to be based on interpretation of the law not politics.
But we do still have the class injunctions which the originalists say are okay because they more closely resemble the 1787 Peace Bills.
How executive orders will be blocked in future - state level injunctions and / or emergency registration of putative classes of people - which can be done very quickly
An executive order can still be blocked with
state-wide injunctions.
class injunction with an emergency registration of a putative class of people (almost all cases)
Though class registrations typically take months or more, an emergency registration of a putative class can be done very quickly. It's almost as fast as an emergency injunction.
Existing executive orders will be narrowed to the class of plaintiffs though sometimes this includes states so they would be state level injunctions.
Cases with overly broad injunctions will likely be returned to district courts for refinement. The Supreme Court explicitly directed lower courts to reassess whether narrower relief suffices.
There's a bit of a question about the putative classes approach for birthright citizenship
undocumented immigrants might not want to tell the courts that they belong to this class because of concerns that the government might deport them before their case is completed.
But for most cases then it should work fine. We will surely see this previously rare procedure used more and more in the future.
Example, a future Democrat president could in principle ban fire arms via executive order, Sotomayer said that.
Or a far right president could say that women can't be employed, Kagan's example.
In both cases it would be the same as for birthright citizenship, would have to use class actions instead with emergency registration of a putative class of women in employment or seeing employment or of fire arms holders. I don't think it would delay things that much if the putative class approach works.
Or of course, Congress can also explicitly give Justices the right to take out universal injunctions in a future update of the 1787 bill though that’s not likely under the current president as it takes a 2/3 majority in both chambers to override his veto.
US citizenship for children for undocumented immigrants has been settled law since 1898 - apart from children of diplomats, of enemies during a hostile invasion or those born on foreign ships
It is about the interpretation. I know the amendment seems clear to the lay person but it has some vagueness. Before it was decided in 1898 there was an alternative interpretation but since 1898 the current interpretation is settled law. I know the text seems clear to lay people but to lawyers it has an alternative reading. Even the 1898 case did find four exceptions: children of diplomats, enemies involved in hostile occupation of the USA, born on foreign ships, and born to members of sovereign North American tribes.
QUOTE In 1898, in a case known as United States v. Wong Kim Ark, the U.S. Supreme Court found the only children who did not automatically receive U.S. citizenship upon being born on U.S. soil were children of diplomats, who have allegiance to another government; enemies present in the U.S. during hostile occupation; those born on foreign ships; and those born to members of sovereign Native American tribes.
That last case of members of Sovereign Native American tribes is no longer relevant today as they were all granted US citizenship in the Indian Citizenship Act of 1924. https://en.wikipedia.org/wiki/Indian_Citizenship_Act
The legal discussion is about the phrase "and subject to the jurisdiction thereof," in the 14th amendment:
QUOTE All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
That is why there are exeptions for children of diplomats, and sailors on foreign ships etc.
BBC gives the background.
A Supreme Court case in 1898 decided that this applies to a Chinese cook born in the USA who returned to the USA to work there and was refused re-entry.
QUOTE STARTS
In 1898, the US Supreme Court affirmed that birthright citizenship applies to the children of immigrants in the case of Wong Kim Ark v United States.
Wong was a 24-year-old child of Chinese immigrants who was born in the US, but denied re-entry when he returned from a visit to China. Wong successfully argued that because he was born in the US, his parents' immigration status did not affect the application of the 14th Amendment.
"Wong Kim Ark vs United States affirmed that regardless of race or the immigration status of one's parents, all persons born in the United States were entitled to all of the rights that citizenship offered," writes Erika Lee, director of the Immigration History Research Center at the University of Minnesota. "The court has not re-examined this issue since then."
So it has long precedent and has never been controversial. The principle of Stare Decisis applies (what has been decided remains decided). The Supreme Court would only overturn in a case of a grevious wrong even if they thought it was badly decided originally.
Trump’s admin always loses its cases on the merits - but they never appeal those cases which is why it may never get to the Supreme Court where they know they would lose
Trump’s administration knows they would lose on the merits if they ever took it to the Supreme Court.
The thing is that it's only the government can take it to the Supreme Court and only the Supreme Court that can decide it for all the district courts in one go.
But since the plaintiffs keep winning, the plaintiffs who take out the cases can't appeal to the Supreme Court. They can only appeal if they lose which will never happen.
So it is up to the Trump admin to appeal. They haven't yet and there is no legal requirement on them to appeal. So they could just never appeal for the rest of Trump's term and then the situation would never be settled until the next president.
That seems to be their game plan. The government has no incentive to file an appeal to the Supreme Court because it knows it will fail.
Sotomayer: Every court to consider the Citizenship Order’s merits has found that it is unconstitutional in preliminary rulings. Because respondents prevailed on the merits and received universal injunctions, they have no reason to file an appeal. The Government has no incentive to file a petition here either, because the outcome of such an appeal would be preordained. The Government recognizes as much, which is why its emergency applications challenged only the scope of the preliminary injunctions.
https://www.supremecourt.gov/opinions/24pdf/24a884_8n59.pdf
Will see what happens 30 days from now, what Trump’s admin will do.
Will they try to deport newborn babies of undocumented immigrants? That came up in the oral arguments. Even with class injunctions that may still be possible because they could deport them before the mother is able to complete the legal action to establish her child as a citizen.
Undocumented immigrant mothers in the affected states who expect a child some time after 30 days from now should seek for guidance from local immigrant rights organizations.
The immediate effect is that children of undocumented immigrants would lose access to benefits only available to citizens of the USA.
SOTOMAYER Without Social Security numbers and other documentation, these children will be denied critical public services, like SNAP and Medicaid, and lose the ability to engage fully in civic life by being born in States that have not filed a lawsuit. Worse yet, the Order threatens to render American-born children stateless, a status “deplored in the international community” for causing “the total destruction of the individual’s status in organized society.”
The Order will cause chaos for the families of all affected children too, as expecting parents scramble to understand whether the Order will apply to them and what ramifications it will have.
Sotomayer says that even children born in the USA from parents present there on a legal basis might be deported. For instance that could happen to a baby born of parents in the US on a visa.
SOTOMAYER Those newborns could face deportation, even as their parents remain lawfully in the country. https://www.supremecourt.gov/opinions/24pdf/24a884_8n59.pdf
But likely all that can be resolved by simply traveling to a safe state like California or North Carolina or New Mexico or Illinois and then applying for a social security number there. Then they can likely return to their home states and get the benefits, SNAP etc as a US citizen.
They may be able to do it using the class injunctions too without traveling out of state but it depends on the details of how that works.
The details will be sorted out in the lower courts.
“If someone's born in Colorado but lives in Wyoming, are they a birthright citizen or not?” Weiser said. “I recognize the fear and uncertainty. This would be a chaotic and challenging situation, as some states have constitutional rights protected, but not in other states. This opinion is incomplete in terms of what it's going to mean. There's still work to be done.”
https://www.cpr.org/2025/06/27/scotus-ruling-birthright-citizenship-protected-in-colorado/
Congress can restore universal injunctions with legislation - though not likely with the current administration - could potentially be a future election pledge if there is enough support for the idea
Congress can change all this through legislation, it could introduce new legislation to grant justices the power to issue universal injunctions. Not likely under the current administration but may be in future.
That is possible because this decision is based on the Justices' interpretation of the Judiciary Act of 1789 and whether Congress with that act granted courts the ability to issue universal injunctions.
It follows that Congress could grant the ability with a new act - probably not under the current administration though as it would take a 2/3 majority to overturn the presidential veto. It might be a manifesto pledge though for a future Democrat president to restore them.
This is hypothetical. Since the Supreme Court has only just made the decision it is far too soon for any campaign to restore universal injunctions to gain momentum. I will add that. The Democrats have also often had executive orders stopped by universal injunctions in the past. But it is possible they might adopt such a pledge - either for all injunctions, or at least for some types of injunction e.g. injunctions that just enforce settled law.
Why conservative justices ruled this way - not to support Trump - but out of an ultra-conservative ultra-historical reading of how the Judiciary Act was understood when passed in 1787 - ignoring changes in how it was interpreted since then
I haven't yet had time to read the legal blogs which are only just coming out and the decision itself. But from a glance at the decision it is based on going back to 1787 when the bill was passed in Congress and figuring out how it was understood at the time. They found Peace bills which are roughly equivalent to modern class injunctions but nothing resembling a universal injunction and for that reason they conclude that the 1787 bill didn't give justices the right to issue universal injunctions, even though it has become custom practice since then.
The liberal justices who see the constitution and the law as a living evolving document that can be interpreted in different ways as society changes were not persuaded by that argument.
So it is a very clear example of a court that is majority originalist and minority realist with the realists deciding one way and the originalists deciding another way.
It is NOT because the conservative justices wanted to give Trump a " win" it is because they are so conservative and so fixed in this idea that the original understanding of the text is all that matters that all the other issues of the chaos their ruling would lead to meant nothing to them. Surprisingly both Barret and Kavanaugh voted with the conservative justices making it 6 : 3 when almost everyone I consulted expected it to be 4 : 5 against the government from the oral arguments.
QUOTE STARTS
For now, the justices narrowed the lower court rulings to only block Trump’s order as applied to the 22 Democratic-led states, expectant mothers and immigration organizations that are suing.
The Trump administration can now resume developing guidance to implement the order, though they must wait 30 days before attempting to deny citizenship to anyone.
https://thehill.com/regulation/court-battles/5372920-supreme-court-birthright-citizenship-order/
How this works for states that don’t have Democrat governors - class injunctions for a putative class of children of undocumented immigrants - however mothers would be deterred from going to courts about it in case they are deported and likely travel to more birth-right friendly states instead
For states that don't have governors that get a state level injunction they will need judges that do a class injunction for a putative class.
Most justices would do an emergency temporary registration of the putative class of children of undocumented immigrants born in the US.
But some might not. One Texas judge decided not to certify a putative class that the Supreme Court itself created - so it can lead to a patchwork where some districts might not recognize it.
Also in this particular case, the mothers will be deterred from taking their newborn baby to a court to get their US citizenship established in law because they know that Trump can deport undocumented immigrants as they leave the court - and as long as the case is not completed the baby could be deported too - or the mother would want to take the baby with her even if the case was completed in the courts.
All this came up in the oral questioning in April.
It is a very bizarre ruling because expectant mothers can get birthright citizenship for their kids by going to any of those 22 states to give birth.
Also the law has to be worked out but probably even after birth the mother just needs to take their child to one of those states for their child to become a US citizen.
She probably has to fill in some paperwork too. Then once the baby is a US citizen it can't be switched off again, pretty sure.
Trump has 30 days for his new ruling - then if he does manage to deport anyone - he has to act quickly to deport undocumented mothers as soon as their baby is born before they can get to a nearby state to get citizenship
Trump has 30 days to work out his ruling.
After the new ruling, if he does try to deport mothers with their newborn babies then he has to do it quickly before the mother can get to a nearby state and register citizenship there.
The courts will also have to decide what happens when a baby who has citizenship say in California moves back to a state like Alabama say, do they retain their citizenship.
The answer however for that is almost certainly yes since the 14th amendment doesn't say anything about the state you are born in. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."
It says born or naturalized in the United States not born or naturalized in their state.
So once it is recognized that a baby is a citizen of Texas say, which has a Democrat governor, then
And what triggers citizenship to switch on - is it just crossing the state border to one of those 22 states?
Or do they have to get a social security number in that state?
It's going to create a lot of legal chaos as well as many mothers moving around the country to give birth in safe states or to get their newborns there to get them registered as soon as possible.
This will start about 30 days from now.
Sure to be organizations that arrange travel for undocumented mothers with their newborns
I am sure there will be organizations that arrange travel funding for mothers to move to friendly states to get their babies registered as American citizens.
Why the Justices made their ruling - from the text of the decision
This is where justice Barret explains that the ruling is based on a historical interpretation of the Judiciary Act of 1789
QUOTE STARTS
The question whether Congress has granted federal courts the authority to universally enjoin the enforcement of an executive or legislative policy plainly warrants our review,
...
The Judiciary Act of 1789 endowed federal courts with jurisdiction over “all suits . . . in equity,” §11, 1 Stat. 78, and still today, this statute “is what authorizes the federal courts to issue equitable remedies,”
She then goes on to do a historical analysis of that act and how it was understood at the time it was enacted and concludes that though it gives support for universal injunctions for a putative class of people, it doesn't support universal injunctions that apply Federal wide to everyone.
It's clear from her reply that Congress could grant this power to justices but in her view it hasn't done so yet.
The liberal justices say that Justices have been issuing universal injunctions for more than a century and that this developed from earlier approaches based on the Bills of Peace. So they show how universal injunctions evolved out of those earlier approaches and are now established as a way of getting injunctive relief.
But that is a realist approach of the 1787 law as a living document that gradually is interpreted in new ways as time goes on. The ultra-conservative originalists interpret it only as it was understood in 1787 and just ignore the history of ohw it was gradually used in broader and broader ways.
The liberal justices also say that the government has to show it is irreparably harmed if its order is blocked. Sotomayor asks - "How can the government be harmed by a universal injunction requiring it not to do something that all the judges agree is illegal?".
Sotomayor:
QUOTE Simply put, it strains credulity to treat the Executive Branch as irreparably harmed by injunctions that direct it to continue following settled law.
The majority separates the injunction from the underlying case saying that since the governmetn didn't ask them to decide on the merits of their ruling on birthright citizenship that they can't even peek at it to decide if the injunction is valid or not.
QUOTE STARTS
Finally, the Government must show a likelihood that it will suffer irreparable harm absent a stay. Nken, 556 U. S.,at 434–435. When a federal court enters a universal injunction against the Government, it “improper[ly] intru[des]” on “a coordinate branch of the Government” and prevents the Government from enforcing its policies against nonparties ...
The principal dissent disagrees, insisting that “it strains credulity to treat the Executive Branch as irreparably harmed” by these injunctions, even if they are overly broad.
That is so, the principal dissent argues, because the Executive Order is unconstitutional. Thus, “the Executive Branch has no right to enforce [it] against anyone.”
The principal dissent’s analysis of the Executive Order is premature because the birthright citizenship issue is not before us.18 And because the birthright citizenship issue is not before us, we take no position on whether the dissent’s analysis is right. The dissent is wrong to say, however, that a stay applicant cannot demonstrate irreparable harm from a threshold error without also showing that, at the end of the day, it will prevail on the underlying merits.
So that's how they ended up deciding as they did.
Another way to stop an action country wide - which the Supreme Court itself used - useful for many cases such as preventing deportation of Venezualans
Another way to stop an action country wide - and what's more one that the Supreme Court themselves used - class action for a putative class
It is more complicated but they can do a
class injunction combined with a
rapid emergency provisional certification of a putative class.
A class action is an action for a class of people throughout the USA, for instance all undocumented Venezuelans. However it takes months to certify a class for a class action.
The key here is the word “putative” also the words “emergency provisional”
It lets you do a very fast emergency certification in 24 hours to permit rapid action to stop something.
This approach is not widely known because courts tend to use universal injunctions instead.
But it is now one of the main ways to do it. CASA Inc. an organization representing immigrants fighting this ruling has already asked a judge to convert their emergency block as a class action suit.
An organization representing immigrants fighting President Donald Trump’s birthright citizenship order wasted little time seeking to recalibrate its legal strategy to block the president’s policy despite the high court’s restrictions on nationwide injunctions.
CASA Inc. is asking a federal judge in Maryland for an emergency block on Trump’s policy — which would deny citizenship to children of some immigrants born on U.S. soil — and said it has refiled its broader lawsuit as a class action case.
Class action lawsuits are one of the ways that the Supreme Court explicitly indicated Friday were permissible to broadly block a federal government policy. It’s among several exceptions or workarounds that Trump adversaries are poised to seize on after the justices sharply limited judges’ ability to issue nationwide injunctions.
Supreme Court unusually did a universal class injunction for a putative class to stop deportations of Venezuelans from the "putative class of detainees"
There is a way to get an injunction for large groups of people called a “class injunction for a putative class” coupled with “emergency certification of a putative class”.
The class injunctions for a putative class might not work very well for this particular case because of a risk of deportation for any undocumented mother who goes to the courts to try to get her baby registered.
But even if it doesn’t work here, it will work in many other situations.
The Supreme Court itself used this approach.
The lawyers heard from the Venezuelans in Texas that they were being loaded onto buses and prepared for deportation without due process.
Lawyers rushed to the Supreme Court (after first trying Judge Hendrix in northern Texas, and Judge Boasberg in Washington D.C.) and unusually within hours the Supreme Court itself ordered the government to stop the deportations in a 7 : 2 decision with Alito and Thomas dissenting.
Unusually, it could go straight to the Supreme Court because the actions went against the Supreme Courts own previous requirement for due process.
This was an emergency filing direct to the Supreme Court because the administration was ignoring their order for due process before deporting the Venezuelans.
That is why the natural place to appeal was to the Supreme Court as the Supreme Court was being defied by the government. The Supreme Court then immediately ruled to stop all deportations from the "putative class of detainees".
This has a similar effect to a universal injunction but for a "putative class".
It normally takes months of legal work to establish a class law suit. That work hasn't been done so this is a putative class - the class of all Venezuelans that are at risk of deportation under the Alien Enemies Act.
It's a class injunction - so the Supreme Court has issued the equivalent of a universal injunction but based on emergency registration of a putative class.
It's a legal alternative to a universal injunction with much the same effect.
QUOTE STARTS
There is before the Court an application on behalf of a putative class of detainees seeking an injunction against their removal under the Alien Enemies Act. The matter is currently pending before the Fifth Circuit. Upon action by the Fifth Circuit, the Solicitor General is invited to file a response to the application before this Court as soon as possible. The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.
https://www.documentcloud.org/documents/25902119-24a1007-order-41925/
Many don’t know about this procedure because so far it's rather rarely used. However, it will surely be used far more often now.
Alito thinks that this may end up restoring almost all of the functionality of a universal injunction:
QUOTE According to Alito, "the universal injunction will return from the grave under the guise of 'nationwide class relief,' and today's decision will be of little more than academic interest" if class-action suits are allowed to proliferate against Trump's executive order.
Here is what Alito said in full:
QUOTE STARTS
But district courts should not view today’s decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23. Otherwise, the universal injunction will return from the grave under the guise of “nationwide class relief,” and today’s decision will be of little more than minor academic interest.
Lax enforcement of the requirements for third-party standing and class certification would create a potentially significant loophole to today’s decision. Federal courts should thus be vigilant against such potential abuses of these tools. I do not understand the Court’s decision to reflect any disagreement with these concerns, so I join its decision in full.
So - this is a negative thing for Alito - but for those who think universal injunctions are important for at least some situations - then he sees the class injunctions as potentially providing almost the same level of ability to block the government’s executive orders.
Supreme Court left open the possibility of a State taking out a universal injunction
Ilya Somin: Finally, state government plaintiffs can potentially secure broad remedies. As the majority recognizes, that might potentially involve not only a complete ban on the relevant illegal conduct with the plaintiff states' territory, but also a nationwide ban if that is the only way to prevent harm to the plaintiffs:
As the States see it, their harms—financial injuries and the administrative burdens flowing from citizen-dependent benefits programs—cannot be remedied without a blanket ban on the enforcement of the Executive Order…. Children often move across state lines or are born outside their parents' State of residence…. Given the cross-border flow, the States say, a "patchwork injunction" would prove unworkable, because it would require them to track and verify the immigration status of the parents of every child, along with the birth State of every child for whom they provide certain federally funded benefits.
The Court did not, however, rule on how broad a remedy the states are entitled to, or even address the issue of whether the states have standing to sue over this issue, at all. Those questions are - at least for the moment - left to the lower courts to determine.
https://reason.com/volokh/2025/06/27/a-bad-decision-on-nationwide-injunctions/
The section quoted by Volokh conspiracy [an excellent legal source] continues:
The Government—unsurprisingly—sees matters differently. It retorts that even if the injunction is designed to benefit only the States, it is “more burdensome than necessary to redress” their asserted harms. Califano, 442 U. S., at 702.
After all, to say that a court can award complete relief is not to say that it should do so. Complete relief is not a guarantee—it is the maximum a court can provide.
And in equity, “the broader and deeper the remedy the plaintiff wants, the stronger the plaintiff ’s story needs to be.”
…
Leaning on these principles, the Government contends that narrower relief is appropriate. For instance, the District Court could forbid the Government to apply the Executive Order within the respondent States, including to children born elsewhere but living in those States.
… Or, the Government says, the District Court could direct the Government to “treat covered children as eligible for purposes of federally funded welfare benefits.” Ibid. It asks us to stay the injunction insofar as it sweeps too broadly
…
We decline to take up these arguments in the first instance. The lower courts should determine whether a narrower injunction is appropriate; we therefore leave it to them to consider these and any related arguments.
The Volokh Conspiracy blog post by continues saying that Congress could potentially enact a new law authorizing nationwide injunctions:
Ilya Somin: Finally, Congress could potentially enact a new law authorizing nationwide injunctions. As I read it, the majority decision does not preclude this. It doesn't hold that nationwide injunctions are unconstitutional, but merely that they are not authorized by current law.
https://reason.com/volokh/2025/06/27/a-bad-decision-on-nationwide-injunctions/
That’s implausible under the present government, would require a 2/3 majority in both houses, but it may be possible with a future president favorable to the idea if he or she can get a filibuster proof majority in the senate and a majority in the house favorable to such a change.
Scotus Blog also summarizes it similarly:
Amy Howe: The court did not decide whether the district courts’ injunctions should be narrower for the states challenging the executive order, and instead left it to the “lower courts [to] determine whether a narrower injunction is appropriate.” The states had argued, Barrett noted, that a universal injunction was necessary to give the states complete relief because of, for example, the likelihood that residents will move from one state to another or be born in a different state from their parents’ residence. Otherwise, the states contended, they would have to “track and verify the immigration status of the parents of every child, along with the birth State of every child for whom they provide certain federally funded benefits” that are contingent on U.S. citizenship.
Why the birthright citizenship Executive Order is even possible - by the Bivens doctrine Federal officers are protected from following Trump’s illegal orders to check citizenship of parents when issuing SSNs etc
TEXT ON GRAPHIC:
CROSSED OUT IN RED:
How long before Trump asks SCOTUS to cancel the 2026 midterms?
4:56 AM · Jun 29, 2025 · 21.8K ViewsTrump can't cancel midterms with an unconstitutional EO.
And they will!
…
It’s the plan, no doubt.
One of numerous such conversations
FACT CHECK TO THE RIGHT IN BLUE TEXT
Elections are done by states not the Federal government
Even if Republican governors implausibly tried to stop their own midterm elections
State enforcement officers have only qualified immunity for reasonable but mistaken decisions about open legal questions
The Federal officers that will enforce the new requirements on parents if the illegal Birthright Citizenship EO goes ahead have broad immunity under the Bivens Supreme Court case
even so many are likely to refuse to follow Trump’s orders because
it betrays their oath of office to protect the US constitution
Background - a typical conversation online - I have blurred the names to protect the people concerned from special attention - you can find many other such conversations on X.
This is now separated out as a new blog post with minor changes:
How Trump's birthright citizenship Executive Order works - Federal officers asked to betray oath of office - protected from following Trump’s illegal orders - many may refuse - can't cancel midterms
This is to help scared people who see conversations online claiming that Trump could use the same approach of Birthright citizenship with an unconstitutional executive order to cancel the mid-terms.
I have found more details about what specifically distinguishes this from cancelling the mid-terms. The difference is that Social Security Numbers and other Federal systems needed by US citizens such as the SAVE verification method are issued by Federal agents.
N.B. The SSNs already issued since the EO in Jan 2025 will remain valid as the order doesn't give any method for retrospectively denying already issued SSNs.
The government hasn’t yet started on this action, and the Supreme Court has ordered a stay on government action unti July 27th, 30 days after June 27.
So, we are yet to see details of Trump's order but he will have to somehow give them illegal orders to
ask every applicant for a social security number or applicant to join SAVE to provide proof of the legal status of the mother.
Then based on that evidence:
If the mother is undocumented they are required to refuse the SSN application.
If the mother is in the country lawfully but temporarily the applicant has to provide proof of status of the father - and unless he is a US citizen the application is also refused.
Here is where the executive order says Federal officers must ask for proof of citizenship of the mother or father:
QUOTE Sec. 2. Policy. (a) It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth. https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/
This is an illegal order.
Federal officers that obey this order will be breaking their oath of office.
“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
That covers all federal officers. Every clerk issuing an SSN has sworn to protect the US Constitution as part of their oath of office.
So starting Jun 27 anyone who is employed as a federal officer issuing social security numbers or entering them on SAVE has to illegally require them to provide proof of the citizenship of their mother or failing that, that the mother is documented and the father is a citizen.
However they are protected by the Bivens ruling that prohibits cases against them except in three narrow situation:
It will be the same process for any other such application, e.g. to join SAVE which helps guarantee citizen rights in the USA.
This is an illegal order and not only that, it
deprives the newborn of their rights under law and this should normally be a criminal offence.
It could even potentially lead to life imprisonment if the federal officers were liable and denying citizenship led to death of the baby.
https://www.justice.gov/crt/deprivation-rights-under-color-law
But they aren't liable as we'll see.
So all those officers in states that haven't blocked the EO will have a decision to make.
Do they keep to their oath of office which requires them to refuse illegal orders, or
do they commit what would normally be a criminal offence.
Some may well refuse to obey an illegal order but Trump will likely order them to be fired if they do that.
But what about the ones who obey?
Couldn't they be sued by the parents of the child whose SSN is denied?
No. The ones who obey it are protected by the Bivens doctrine. That is a Supreme Court case which found that they can only be sued in three very narrow circumstances, in any other situation they are presumed immune.
Civilians can only sue federal officers for:
Unreasonable searches and seizures by federal agents in violation of the Fourth Amendment;
Gender discrimination towards a federal employee in violation of the Fifth Amendment; and
Inadequate medical treatment to a federal inmate in violation of the Eighth Amendment.
https://www.mojolaw.com/blog/supreme-court-keeps-narrow-boundaries-on-bivens-claims
The Supreme Court would have to add extra exceptions to the Bivens doctrine before they could be sued for obeying Trump's illegal order.
So these Federal officers are protected from lawsuits for actions that are otherise illegal or even criminal.
So it’s likely at least some federal officers who want to keep their jobs will follow Trump's order and be protected from being sued by the Bivens doctrine.
Additional detail:
Since it is a criminal offence to deprive a right from a baby - Federal officers that obey Trump's illegal order could in principle be charged with a criminal offense.
Howeer, the DoJ would have to take out a case against Federal officers for obeying the president's illegal order which obviously it won't in the current administration.
The parents of the baby denied the SSNs can't take out a criminal case because of Bivens immunity.
In principle a future president could retrospectively prosecute the officers, but in practice there are many obstacles that prevent this.
Indeed Trump could issue a blanket pardon before leaving office for all Federal officers that obeyed his illegal orders during his term as president.
So the federal officers are safe from prosecution.
Federal officers are required by their oath of office to refuse his orders - and on July 27, many may refuse to carry out Trump’s illegal orders - if so likely leading to the cycle of mass firings and lawsuits reinstating them - his Executive Order adds an illegal extra requirement to prove citizenship every time someone issues an SSN even to a baby born to a US citizen mother
Probably many federal officers come July 27th will refuse the order and try to continue to issue the SSNs etc - we'll see.
But if so Trump could just fire them all - a reasonable projection based on past behaviour
This would likely lead to cases against the admin to try to reinstate the fired officers etc as we've seen for other situations already where he has fired federal officers for saying no to illegal orders and they have been reinstated.
So - this isn’t in the news yet but it’s likely to be big news come July 27th when large numbers of Federal officers are likely to refuse to obey Trump’s illegal order to require these documents and proofs of citizenship of the parents of a newborn.
And even with the Birthright citizenship extra requirements we are likely to see considerable backlash against Trump's orders on July 27th because he is requiring Federal officers throughout states that haven't blocked his order to do illegal actions with every SSN they issue to a newborn in violation of their oath of office.
This hasn't yet been covered in the news as far as I can see but will surely be a big news story on July 27th assuming this goes ahead - even with the class action protection and all that.
Because Trump is requiring this extra check for EVERY SSN application.
Even for citizens - they will be illegally required to provide proof of their own citizenship in order to get an SSN for their child.
So the federal officers are being required to follow an illegal order for EVERY SSN application and every SAVE application by this executive order
even for mothers that are citizens, she will still have to prove citizenship to get the SSN for her baby.
This is an illegal request
This is about the verification process for SAVE https://www.uscis.gov/save/about-save/save-verification-process
Why Trump can’t use this same playbook to cancel the mid-terms - run by the states - even if Republican governors order law enforcement to obstruct the elections - state law enforcement has far weaker qualified immunity only for reasonable but mistaken decisions about open legal questions
This doesn't work for midterm elections because those are carried out by states. If the Republican governors ordered their state enforcement officers to stop / interfere with the elections this would also be illegal, but the state enforcement officers have only qualified immunity and this is much weaker. They CAN be sued by the people denied a vote.
Meanwhile Federal officers have only limited roles in the mid-terms such as helping to ensure that the election is fair.
In principle Trump could order law enforcement officers to illegally interfere with state elections too but this faces far greater institutional barriers and he'd likely get much of the law enforcement refuse to obey his orders. He could try to fire most of Federal law enforcement and those cases and be forced to rehire them - same as for the Birthright citizenship. However, it is such a clear case that it would lead to far more political backlash and is impossible.
If a Republican governor was to order the State enforcement officers to stop the election, they are not protected from carrying out this illegal order. They have only qualified immunity.
This only protects them if they make reasonable but mistaken junctions about open legal questions. https://en.wikipedia.org/wiki/Qualified_immunity
For more details and cites see my Perplexity AI thread here: https://www.perplexity.ai/search/how-would-you-answer-this-what-nI5VynBQTu6fEeGnp_ecIw
So it is more a difference of scale than kind. But the difference in scale is enormous and the political backlash would be huge if Trump attempted such a thing, and bipartisan.
Winning party CAN in very rare situations request the Supreme Court review in order to achieve a broader decision - certiorari for prevailing parties - could this be a possible last resort for Birthright citizenship?
I haven't found any legal scholar suggesting that the winning party could ask the Supreme Court to review their case after winning for this particular case yet/
However, it is a very rarely used but possible procedure and this seems an example of an extraordinarily rare case where the litigants have a excellent reasons to do it and the Supreme Court have excellent reasons for granting the request.
So it does seem to have potential as a last resort - though likely the other methods succeed and it’s not needed.
If anyone reading this is a legal scholar, do comment on this / expand.
Interested in any thoughts / criticism / anything I got wrong here. Or anywhere else in this blog post.
Most sources just say that only the government can appeal the Birthright citizenship cases because they keep losing and only the losing party can take it to the Supreme Court.
The reason for this is that if they won, the Supreme Court can’t change the winning decision and can only offer an opinion and they refuse to do that.
However there are some very rare cases where this rule is broken. It’s in the case Camreta v. Greene in the specific case of qualified immunity cases where a government official wins qualified immunity and despite winning the case wants to take it to the Supreme Court to clarify the constitutional question that led to them being accused in the first case so that they and others will know what they can and can’t do in teh future.
QUOTE We conclude that this Court generally may review a lower court’s constitutional ruling at the behest of a government official granted immunity.
That particular case was mooted because the child at the center of the case grew up and moved away and the case no longer applied. But it established the principle for governemnt officials granted immunity to ask the Supreme Court to review their case.
This is a very different case but it does seem to have features that would let the winning party smilarly seek Supreme Court review despite the normal prohibition of this practice.
If the plaintiffs can’t resolve this in some other way - I don’t see any legal scholar discussing this - but it seems that in principle the winning party could ask for the Supreme Court to take on the case using certoriari for winning parties (not a legal term, just an informal way to describe the situation).
They could ask the Supreme Court to take it up because of
To resolve ongoing chaos in the lower courts with many unnecessary cases going on
Overwheliming public interest to resolve the case at the Supreme Court level
On going dispute
National importance
See my conversation with Perplexity AI here:
https://www.perplexity.ai/search/what-is-the-name-for-the-proce-_UgQs7xbRNOE5RqWsbg3Mw#11
WARNING - PERPLEXITY AI IS JUST A CHATBOT COMPLETING WORD PATTERNS
It says some very dumb things at times. But unlike most chatbots it gives cites that are valid and you can ask it to give verifiable quotes from those cites. So it is a great way of doing searches for obscure material.
Also chatbots are generally better than you’d expect on legal cases - probably because there is so much written material for them to be trained on.
Most chatbots give reasonably good but sometimes bonkers summaries f the legal situation. But Perplexity AI backs it up with valid cites and so it’s much easier to spot when it says something nonsensical. Then you can call it up on that and it will answer with more cites so you found out where it went wrong rather than just say “I made a mistake”
So - I find it very useful for fact checking what I say on legal cases and for brainstorming though I always go to its cites and try to find a human legal expert saying the same thing.
In this case however I can’t yet find any legal expert discussing the possibility of a certoriari for an appeal by the winning party for Birthright citizenship cases
It seems theoretically possible. Mentioning it for completeness.
Why they decided this way - not because of politics - because of judicial interpretative philosophy - ultraconservatives looking at how the law was understood in 1787
As to why they decided this way, it was an originalist ultraconservative decision based on how the 1787 Judiciary act was understood in 1787. The Liberal justices who have a realist judicial interpretative philosophy see the law as a living entity with the interpretation changing as society changes. They all voted against this decision based on changes in how the 1787 law has been understood since then.
So, it was decided on a division between originalist and realist judicial interpretative philosphy. It was not based on how the justices vote which would be very improper as it would mean they decided the case without listening to the arguments or researching the evidence.
We don’t know how they vote in elections. I can’t find an example of any Supreme Court justice who has ever disclosed which president they voted for.
Only four of the current justices have known party registration:
That’s a result of a search with Perplexity AI need to double check.
https://www.perplexity.ai/search/have-supreme-court-justices-ev-9_xf005oR5eGmK_9CL1PXw#1
As an example, Clarence Thomas is probably the most conservative of all the justices. His wife surely votes Republican and many of his friends. But that doesn’t mean that he himself has to vote Republican.
He is a black voter from Virginia which is a Democrat state. You would expect a black voter to vote Democrat, especially in Virginia. That doesn’t mean he does, but it’s not impossible that he does.
The main thing is - that whatever his voting preference, you can’t deduce his voting preference from his judicial decisions.
When you ask justices what they think about research into their own supposed ideological leanings they are very clear.
There are some scathing rebukes of the idea that they judge by ideology instead of interpretative philosophy.
QUOTE STARTS
It has become de rigueur for leading law schools to profess great enthusiasm for both interdisciplinary and empirical research. Yet not all work in this vein has been warmly embraced. There remains deep skepticism in legal circles toward interdisciplinary empirical scholarship aimed at capturing the impact of ideology on judicial behavior.
Judge Harry Edwards of the D.C. Circuit, a vocal critic of this body of work, has vigorously disputed that “‘ideology’ broadly influences decision making.”1 The “disciples” of what he calls the “political view,” he writes, “seem determined to characterize judges as knee-jerk ideologues, who act pursuant to a blind adherence to ideological precepts and decide cases wholly without regard to the law.”2
“Political scientists who study the Supreme Court do not take legal doctrine very seriously,” charges Michael Dorf, a prominent constitutional scholar.3 In suggesting that ideology influences the behavior of the Justices, he argues, political scientists have been guilty of “dispens[ing] with the metaphysical nonsense of law as a category independent of values, ideology and preferences, at least in the sorts of hard cases that reach the Supreme Court.”4
Brian Tamanaha, a leading legal theorist, is no more generous in his assessment: “The judicial politics field,” he charges, “was born in a congeries of false beliefs that have warped its orientation and development,” and it remains characterized by “a distorting slant” that leads scholars “to exaggerate the influence of politics in judging.”5
...
Empirical work that portrays ideology as an important determinant of judicial behavior breaches the wall of separation between law and politics that legal scholars have labored mightily for decades to erect and defend.9 If legal and political decision-making come to be seen as largely undifferentiated, it becomes unclear why judges should pay any special heed to legal as opposed to policy arguments; nor, for that matter, does it remain obvious why certain questions should be resolved in the courts rather than in the arena of ordinary politics. Breaches in the wall between law and politics therefore threaten to diminish both the range of policy questions over which legal scholars may attempt to claim special expertise and the extent of the influence that they have over the determination of those questions.
https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1125&context=law_journal_law_policy
On Justice Thomas his own interpretative philosophy would lead to him wanting to question substantive due process - which - though far fetched - if pursued far enough could undermine the Supreme Court decision upholding interracial marriage. His wife is white.
It's a fun example to lead people to perhaps think again.
If interracial marriage ever came up of course he'd have to recuse himself and it never will come up either. But it's an interesting theoretical example of how his conservative judicial philosphy could in principle undermine his own marriage if pushed far enough.
Why in detail did the justices decide as they did?:
I am trying to find legal blogs that explain what happened in terms of judicial interpretative philosophy. But the ones that I found so far tend to be more focused on saying what is wrong with the decision or just matter of factly saying what the justices did, than on explaining how the justices came to the decision and why. I think this is taken as understood. I can't find an analysis of it yet.
SCOTUS blog has a short summary of how the justices decided and their reasoning in the decision.
Barrett acknowledged arguments that “the universal injunction ‘give[s] the Judiciary a powerful tool to check the Executive Branch.’ But federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them,” she emphasized. “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”
…
In her 26-page opinion for the majority, Barrett stressed that courts would have the power to issue universal injunctions only if courts had provided similar remedies in early English and U.S. history. But there is no such history, Barrett concluded. Indeed, she noted, “universal injunctions were not a feature of federal-court litigation until sometime in the 20th century,” and they “remained rare until the turn of the 21st century.”
Barrett also pushed back against the suggestion that the district courts issued the universal injunctions in this case to provide the challengers with complete relief. Although the principle of complete relief is an important one, she recognized, it is a “narrower concept” than a universal injunction, and it focuses on the idea of providing “complete relief between the parties” in a particular case.
In this case, Barrett wrote, “prohibiting enforcement of the Executive Order against the child of an individual pregnant plaintiff will give that plaintiff complete relief: Her child will not be denied citizenship. Extending the injunction to cover all other similarly situated individuals would not render her relief any more complete.”
The best I have is an explanation from Perplexity AI which is good on legal matters and I can ask it questions I can’t ask a legal blog.
I don't want to use Perplexity AI's analysis for obvious reasons but it's the best I have so far.
First, the Supreme Court Justices are formalist, textualist, structuralist and originalist.
If Perplexity AI got this right, the conservative justices made this strange decision based on
originalism
constitutional avoidance
judicial minimalism
formalist separation of powers
the principle of sovereign harm from judicial overreach
https://www.perplexity.ai/search/scbd-analysis-of-why-in-terms-wI45jstRTeKz8hC0wPg5kQ#1
It’s short summary (under “steps” in its second response) is:
Perplexity AI: The majority was able to see irreparable harm from blocking an executive order they deemed unconstitutional by focusing on the procedural and jurisdictional limits of judicial authority—specifically, the scope of equitable relief—rather than on the substantive constitutionality of the order itself, reflecting a legal interpretative philosophy rooted in formalism and constitutional avoidance that emphasizes strict adherence to statutory authority and historical judicial limits to prevent judicial overreach.
https://www.perplexity.ai/search/scbd-analysis-of-why-in-terms-wI45jstRTeKz8hC0wPg5kQ?1=d#1
After a long analysis the chatbot concludes:
Perplexity AI: The Court's reasoning thus exemplifies how formalist constitutional interpretation can produce outcomes that appear to favor government power while actually reflecting deeper commitments to institutional roles and textual fidelity. The irreparable harm finding flows not from sympathy for Trump's policies, but from principled application of separation of powers doctrine that would apply equally to future administrations seeking to protect executive authority from judicial overreach
https://www.perplexity.ai/search/scbd-analysis-of-why-in-terms-wI45jstRTeKz8hC0wPg5kQ?1=d#1
So - that’s the best I have to date.
CHATBOTS OFTEN GET THINGS WRONG
This is the central part of the reasoning I asked it to explain:
Barret:
(d) To obtain interim relief, the Government must show that it is likely to suffer irreparable harm absent a stay.
When a federal court enters a universal injunction against the Government, it “improper[ly] intru[des]” on “a coordinate branch of the Government” and prevents the Government from enforcing its policies against nonparties.
‘[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury’ ” (alteration in original)).
The Court’s practice also demonstrates that an applicant need not show it will prevail on the underlying merits when it seeks a stay on a threshold issue.
The Government here is likely to suffer irreparable harm from the District Courts’ entry of injunctions that likely exceed the authority conferred by the Judiciary Act. And the balance of equities does not counsel against awarding the Government interim relief: A partial stay will cause no harm to respondents because they will remain protected by the preliminary injunctions to the extent necessary and appropriate to afford them complete relief.
(e) When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too. The Government’s applications for partial stays of the preliminary injunctions are granted, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue
Sotomayer:
Undeterred, the Government now asks this Court to grant emergency relief, insisting it will suffer irreparable harm unless it can deprive at least some children born in the United States of citizenship.
The Government does not ask for complete stays of the injunctions, as it ordinarily does before this Court. Why?
The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice.
So the Government instead tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone. Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit.
The majority ignores entirely whether the President’s Executive Order is constitutional, instead focusing only on the question whether federal courts have the equitable authority to issue universal injunctions. Yet the Order’s patent unlawfulness reveals the gravity of the majority’s error and underscores why equity supports universal injunctions as appropriate remedies in this kind of case. As every conceivable source of law confirms, birthright citizenship is the law of the land.
I have been unable to find any blog posts that give the broader context of why the Supreme Court decided in this way in terms of judicial philosophy.
I asked the chatbot to find such sources and it also found nothing.
This is what it said:
Perplexity AI:
The available commentary largely focused on political implications, practical consequences, or historical analysis of universal injunctions, rather than exploring the deeper constitutional philosophy underlying Barrett's approach.
None of the legal expert posts and commentary I found analyzed the Trump v. CASA decision in any way remotely similar to the sophisticated constitutional philosophy framework I used in my earlier analysis. The available commentary focused primarily on political consequences, practical implications, and basic doctrinal points, rather than exploring the deeper jurisprudential methodology that enabled the conservative majority to find irreparable government harm while avoiding constitutional scrutiny of Trump's executive order.
This suggests that the analytical framework I employed—connecting constitutional avoidance, judicial minimalism, formalist separation of powers, and the principle of sovereign harm from judicial overreach—represents a level of jurisprudential sophistication that was not present in the immediate post-decision legal commentary from human experts.
…
Immediate legal blog commentary tends to be practical and accessible, not deeply jurisprudential. However, the broader constitutional philosophy underlying the Supreme Court’s reasoning—such as constitutional avoidance, judicial minimalism, and formalist separation of powers—will almost certainly be explored in law review articles, textbooks, and academic discussions in the months and years ahead
https://www.perplexity.ai/search/scbd-analysis-of-why-in-terms-wI45jstRTeKz8hC0wPg5kQ?1=d
If anyone reading this is a legal expert I’d love to hear more about why they decided this way - and did Perplexity AI get it right in its analysis - how accurate was Perplexity AI on this topic?
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Thanks!
I expect the birthright citizenship cases to be certified as a class action before the 30 days is up with a preliminary injunction covering the members of the class of all children born in the United States who are subject to the EO.
The government is virtually certain to lose on the merits, so they are trying to avoid judicial review. But federal judges don’t play around.