The Trump administration's emergency applications in three birthright citizenship cases are a cynical effort to mitigate the effects of an inevitable loss on the merits. The justices shouldn't bite.
Odd, given the Court's reluctance to address the issue of universal injunctions in the past, that it agreed to address it in the birthright citizenship case. Hopefully this means the Court will clarify that when the issue involves a constitutional right, universal injunctions are appropriate.
It hasn't, yet. The prior cases being cited were all applications for cert, seeking permission for briefings and oral arguments, which would have resulted in an opinion. That's a multi-step process where they were at the first step, asking for permission to proceed to the next steps. This is an emergency application for a stay, a more all-in-one process that doesn't involve oral arguments, just briefings, and only results in an order. (I'm speaking generally here.)
Denying the application would be one or both of refusing to consider the issue or finding against the applicant, at least insofar as the posture of the case allowed, and we wouldn't necessarily know which; only approving the application would have a clear meaning, again insofar as the posture of the case allowed. Neither of those things have happened yet, as the opposing party has been given until April 4th to write a briefing arguing why the court should deny the application.
Yes (though it sure gets complicated!). I read Steve's book Shadow Docket and pay attention to emergency appeals and the like. Thanks for clarifying. Looking forward to learning more about the arguments April 4th.
If there's one thing I'm great at as a reference librarian, it's giving longwinded explanations of nuance, regardless of whether or not the situation calls for it. :D
Another case where the Court used an emergency stay to give Trump 1 virtually full relief was the border wall funding case.
As has been noted previously (by me) some of the judge shopping could be mitigated by limiting jurisdiction to issue universal injunctions to DDC. Appeals would go to CADC, which already issues rulings of nationwide impact in administrative review cases.
Speaking of a hypothetical "good test case" scenario that produces the results you want, I think that you have perhaps overlooked the possibility that this case could be used as a vehicle to fashion at least a partial or implied test for when universal injunctions are appropriate *such that this case passes the test* (but not all future cases will).
I feel like it would not be the first time such a thing has happened, although a citation escapes me at this exact moment.
I have not, and won't have time to, read Bray's argument for the suitability of the birthright case to making a determination on the viability or appropriateness of universal injunctions. Vladeck states in his rebuttal that "First, assuming there are five votes to limit or get rid of universal injunctions, doing so here would, in my view, look really bad given that the Court refused to do so in the Career Colleges and Schools of Texas and Corporate Transparency Act cases..." and "Second, I also think that the birthright citizenship cases provide uniquely powerful proof for why universal injunctions are valuable."
It seems to me that both of these arguments assume an outcome that is not necessary. Following Bray's lead, where the merits (or lack thereof) are so clear, this is a great opportunity for the Court to specify exactly where the line for appropriate universal injunctions should be drawn. Perhaps the Court would argue that this case is, in agreement with Vladeck , that birthright citizenship is exactly the type of case where universal injunctions are appropriate while other cases, where the immediate damages are not as widespread or significant, should have limited injunctions that apply only to the specific focus of the case at hand. Perhaps both Bray and Vladeck are correct but addressing different aspects of the same argument.
As someone with no legal training, I would be interested to read Professor Vladeck's opinion on why John Eastman's argument regarding birthright citizenship (1) is invalid. Eastman argues that there are (at least) two forms of jurisdiction (temporary and complete), and that the history of the 14th Amendment’s Citizenship Clause shows that that Amendment was not meant to apply to, for example, the children of illegal immigrants.
Based on what little I've read about this so far, I didn't find either side's argument to be a slam-dunk.
I, too, have no legal training, but I am highly skeptical of Constitutional arguments in which pundits claim (as I believe Eastman is doing in the link you provided) to have some sort of fringe or novel interpretation of either the text or history of our Constitution. It doesn't persuade me how many other like-minded pundits are cited as advocates (as Eastman does extensively in his first 2 paragraphs).
Justice Scalia applied such a novel approach in the District of Columbia v. Heller majority decision. He distorted both the history of the 2nd amendment as well as well-established judicial precedent to completely disregard the beginning portion of the amendment specifying "A well regulated Militia, being necessary to the security of a free State...".
The Trump administration may not like the beginning of Section 1 of the 14th amendment ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States"), but attempting to reinterpret the text and subsequent history is not the correct (i.e. Constitutionally-allowed) approach to change it. Just as Chief Justice Roberts had to admonish Trump today, that filing an appeal, not impeaching a judge/justice, is the proper response to disagreement, the correct way to change a part of the Constitution with which you don't agree is via the amendment process.
Of course, this is just my opinion. I'd be interested to hear Prof. Vladeck's take (or any other legal scholar following this One First thread).
Thanks for your reply. I generally share your point of view, but I try to be as objective as possible when reading legal arguments about such topics.
I came across the piece linked below (1) on William Baude's site, in which an unnamed reader provides a very detailed and analytical counter-argument to arguments made by Randy Barnett and Ilan Wurman recently in the New York Times (2) and on the Volokh Conspiracy. I read much of the unnamed reader's argument and I got the impression that he or she does a good job refuting the Barnet/Wurman argument defending president Trump's claim (which I haven't read), but as is often the case, the arguments involve a lot of legal history and technicalities, so I don't feel qualified to make a definitive judgement. I don't know if the unnamed reader's counter-argument also applies to John Eastman's arguments. If this makes it to the Supreme Court, it will be interesting to hear the two sides' arguments.
[1] "From A Reader: Thoughts on Why the Barnett/Wurman Contrarian Take on the Citizenship Clause Does Not Convince":
I always try to be objective as well. The point I was trying to make is that I think it is imperative that unconventional legal theories (like the novel "original public meaning" about the 14th Amendment that Eastman and Barnett/Wurman purport to have found) are met with a healthy amount of scrutiny and skepticism. I think the most legally-defensible interpretation of section 1 of the 14th Amendment is that it applies to children of illegal immigrants (and legal citizens), because of both its plain text and the historical context of the Amendment, along with the other "reconstruction Amendments", in emancipating African-American slaves.
Prof. Vladeck opined in the newsletter that the birthright citizenship executive order "is destined to fail on the merits." What really surprised me, was to read an essay in support of birthright citizenship from....Justice James Ho. Granted, he wrote the treatise (entitled "Defining 'American'" -
https://www.gibsondunn.com/wp-content/uploads/documents/publications/Ho-DefiningAmerican.pdf) back in 2006, before shifting his viewpoint very recently. But, I think that his reasoning and logic are very persuasive, supporting his conclusion that "text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most U.S.-born children of aliens, including illegal aliens."
I would appreciate a legal explanation of the pros and cons for universal scope of injunctions, especially where the injunction only applies to named plaintiffs. (A reference to an earlier post would be fine.) I had always thought that a District Court's order's would only apply to within that court's jurisdiction. I read above that you discuss the awkwardness of applying inconsistent district court rulings to national class plaintiffs. Is the argument in favor of universal injunctions for national class plaintiffs merely a rule of convenience? And again, is the argument different for injunctions applicable only to named plaintiffs? Sorry to be dense, but I need to be well grounded in the basic applicable law. Thanks as always (a subscriber about to re-up for year 2), Tom Crane
Think about it in the context where the government isn’t a party. If you get an injunction against a company from using your trade secrets, for example, it would almost always apply nationally or even worldwide. We don’t want parties to be able to escape adverse decisions by simply relocating the violative conduct.
And a lot of what is going on raises two questions: 1. at what point do the federal courts begin to openly question whether the DOJ's and Solicitor General's arguments are being made at all in good faith, and 2. when do court sanctions and/or bar association sanctions begin? I know that this post does not raise the questions from the deportation actions of Trump's government but it seems clear that the DOJ assignment in the case of the flight to El Salvador was to keep the proceedings going long enough to get the planes underway and then say "too late to stop us." We forget that after Hitler rose to power in Germany and throughout the Third Reich Germany still had a Reichstag, and lawyers and Courts; they were all just complicit in being a part of the Reich.
Odd, given the Court's reluctance to address the issue of universal injunctions in the past, that it agreed to address it in the birthright citizenship case. Hopefully this means the Court will clarify that when the issue involves a constitutional right, universal injunctions are appropriate.
It hasn't, yet. The prior cases being cited were all applications for cert, seeking permission for briefings and oral arguments, which would have resulted in an opinion. That's a multi-step process where they were at the first step, asking for permission to proceed to the next steps. This is an emergency application for a stay, a more all-in-one process that doesn't involve oral arguments, just briefings, and only results in an order. (I'm speaking generally here.)
Denying the application would be one or both of refusing to consider the issue or finding against the applicant, at least insofar as the posture of the case allowed, and we wouldn't necessarily know which; only approving the application would have a clear meaning, again insofar as the posture of the case allowed. Neither of those things have happened yet, as the opposing party has been given until April 4th to write a briefing arguing why the court should deny the application.
Does that make sense?
Yes (though it sure gets complicated!). I read Steve's book Shadow Docket and pay attention to emergency appeals and the like. Thanks for clarifying. Looking forward to learning more about the arguments April 4th.
If there's one thing I'm great at as a reference librarian, it's giving longwinded explanations of nuance, regardless of whether or not the situation calls for it. :D
Another case where the Court used an emergency stay to give Trump 1 virtually full relief was the border wall funding case.
As has been noted previously (by me) some of the judge shopping could be mitigated by limiting jurisdiction to issue universal injunctions to DDC. Appeals would go to CADC, which already issues rulings of nationwide impact in administrative review cases.
Speaking of a hypothetical "good test case" scenario that produces the results you want, I think that you have perhaps overlooked the possibility that this case could be used as a vehicle to fashion at least a partial or implied test for when universal injunctions are appropriate *such that this case passes the test* (but not all future cases will).
I feel like it would not be the first time such a thing has happened, although a citation escapes me at this exact moment.
I have not, and won't have time to, read Bray's argument for the suitability of the birthright case to making a determination on the viability or appropriateness of universal injunctions. Vladeck states in his rebuttal that "First, assuming there are five votes to limit or get rid of universal injunctions, doing so here would, in my view, look really bad given that the Court refused to do so in the Career Colleges and Schools of Texas and Corporate Transparency Act cases..." and "Second, I also think that the birthright citizenship cases provide uniquely powerful proof for why universal injunctions are valuable."
It seems to me that both of these arguments assume an outcome that is not necessary. Following Bray's lead, where the merits (or lack thereof) are so clear, this is a great opportunity for the Court to specify exactly where the line for appropriate universal injunctions should be drawn. Perhaps the Court would argue that this case is, in agreement with Vladeck , that birthright citizenship is exactly the type of case where universal injunctions are appropriate while other cases, where the immediate damages are not as widespread or significant, should have limited injunctions that apply only to the specific focus of the case at hand. Perhaps both Bray and Vladeck are correct but addressing different aspects of the same argument.
As someone with no legal training, I would be interested to read Professor Vladeck's opinion on why John Eastman's argument regarding birthright citizenship (1) is invalid. Eastman argues that there are (at least) two forms of jurisdiction (temporary and complete), and that the history of the 14th Amendment’s Citizenship Clause shows that that Amendment was not meant to apply to, for example, the children of illegal immigrants.
Based on what little I've read about this so far, I didn't find either side's argument to be a slam-dunk.
[1] https://americanmind.org/features/the-case-against-birthright-citizenship-2/birthright-citizenship-game-on/
I, too, have no legal training, but I am highly skeptical of Constitutional arguments in which pundits claim (as I believe Eastman is doing in the link you provided) to have some sort of fringe or novel interpretation of either the text or history of our Constitution. It doesn't persuade me how many other like-minded pundits are cited as advocates (as Eastman does extensively in his first 2 paragraphs).
Justice Scalia applied such a novel approach in the District of Columbia v. Heller majority decision. He distorted both the history of the 2nd amendment as well as well-established judicial precedent to completely disregard the beginning portion of the amendment specifying "A well regulated Militia, being necessary to the security of a free State...".
The Trump administration may not like the beginning of Section 1 of the 14th amendment ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States"), but attempting to reinterpret the text and subsequent history is not the correct (i.e. Constitutionally-allowed) approach to change it. Just as Chief Justice Roberts had to admonish Trump today, that filing an appeal, not impeaching a judge/justice, is the proper response to disagreement, the correct way to change a part of the Constitution with which you don't agree is via the amendment process.
Of course, this is just my opinion. I'd be interested to hear Prof. Vladeck's take (or any other legal scholar following this One First thread).
Thanks for your reply. I generally share your point of view, but I try to be as objective as possible when reading legal arguments about such topics.
I came across the piece linked below (1) on William Baude's site, in which an unnamed reader provides a very detailed and analytical counter-argument to arguments made by Randy Barnett and Ilan Wurman recently in the New York Times (2) and on the Volokh Conspiracy. I read much of the unnamed reader's argument and I got the impression that he or she does a good job refuting the Barnet/Wurman argument defending president Trump's claim (which I haven't read), but as is often the case, the arguments involve a lot of legal history and technicalities, so I don't feel qualified to make a definitive judgement. I don't know if the unnamed reader's counter-argument also applies to John Eastman's arguments. If this makes it to the Supreme Court, it will be interesting to hear the two sides' arguments.
[1] "From A Reader: Thoughts on Why the Barnett/Wurman Contrarian Take on the Citizenship Clause Does Not Convince":
https://blog.dividedargument.com/p/from-a-reader-thoughts-on-why-the
"Trump Might Have a Case on Birthright Citizenship":
[2] https://www.nytimes.com/2025/02/15/opinion/trump-birthright-citizenship.html
I always try to be objective as well. The point I was trying to make is that I think it is imperative that unconventional legal theories (like the novel "original public meaning" about the 14th Amendment that Eastman and Barnett/Wurman purport to have found) are met with a healthy amount of scrutiny and skepticism. I think the most legally-defensible interpretation of section 1 of the 14th Amendment is that it applies to children of illegal immigrants (and legal citizens), because of both its plain text and the historical context of the Amendment, along with the other "reconstruction Amendments", in emancipating African-American slaves.
Prof. Vladeck opined in the newsletter that the birthright citizenship executive order "is destined to fail on the merits." What really surprised me, was to read an essay in support of birthright citizenship from....Justice James Ho. Granted, he wrote the treatise (entitled "Defining 'American'" -
https://www.gibsondunn.com/wp-content/uploads/documents/publications/Ho-DefiningAmerican.pdf) back in 2006, before shifting his viewpoint very recently. But, I think that his reasoning and logic are very persuasive, supporting his conclusion that "text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most U.S.-born children of aliens, including illegal aliens."
Thanks for the link to James Ho's article. I'm not familiar with him. I'll read it soon.
I would appreciate a legal explanation of the pros and cons for universal scope of injunctions, especially where the injunction only applies to named plaintiffs. (A reference to an earlier post would be fine.) I had always thought that a District Court's order's would only apply to within that court's jurisdiction. I read above that you discuss the awkwardness of applying inconsistent district court rulings to national class plaintiffs. Is the argument in favor of universal injunctions for national class plaintiffs merely a rule of convenience? And again, is the argument different for injunctions applicable only to named plaintiffs? Sorry to be dense, but I need to be well grounded in the basic applicable law. Thanks as always (a subscriber about to re-up for year 2), Tom Crane
Think about it in the context where the government isn’t a party. If you get an injunction against a company from using your trade secrets, for example, it would almost always apply nationally or even worldwide. We don’t want parties to be able to escape adverse decisions by simply relocating the violative conduct.
And a lot of what is going on raises two questions: 1. at what point do the federal courts begin to openly question whether the DOJ's and Solicitor General's arguments are being made at all in good faith, and 2. when do court sanctions and/or bar association sanctions begin? I know that this post does not raise the questions from the deportation actions of Trump's government but it seems clear that the DOJ assignment in the case of the flight to El Salvador was to keep the proceedings going long enough to get the planes underway and then say "too late to stop us." We forget that after Hitler rose to power in Germany and throughout the Third Reich Germany still had a Reichstag, and lawyers and Courts; they were all just complicit in being a part of the Reich.