Trump administration uses birthright citizenship case to challenge nationwide injunctions

Rather than directly challenging U.S. v. Wong Kim Ark, the landmark 1898 U.S. Supreme Court decision that established birthright citizenship for children born in the U.S. to non-citizen parents, the Trump administration has centered its legal strategy on narrowing the scope of nationwide injunctions.

In its Supreme Court filings, the administration devoted most of its argument not to overturning the core constitutional precedent, but to limiting the power of district judges to issue sweeping orders that halt federal policies across the country. The focus on injunctions suggests a tactical effort to contain the immediate legal impact of adverse rulings while postponing a full confrontation with the long-established citizenship doctrine.

On Thursday, the Supreme Court left in place national injunctions that blocked Trump's executive order overturning nationwide injunctions, but the court agreed to hold oral arguments May 15 - unusually late in the court's session - to address whether they should be limited to individual plaintiffs, groups or states that sued. A ruling on the emergency application is expected by late June or early July.

The implications of the outcome of the case are significant, not only for those who would be affected by a ruling in the U.S. Department of Justice's favor on the scope of the birthright citizenship injunctions but also for all other nationwide injunctions against President Donald Trump's actions and executive orders.

Michael T. Morley, a professor at Florida State University College of Law, said in a phone interview Friday that the Trump administration is trying to split the case, delaying its arguments on the merits until later while limiting the scope of adverse judicial orders now.

"It's using this as an opportunity to focus the court on the nationwide injunction issue," he said.

The case is challenging preliminary injunctions ordered by judges in Maryland, Massachusetts in a case joined by California Attorney General Rob Bonta and San Francisco City Attorney David Chiu, and Senior U.S. District Judge John C. Coughenour of the Western District of Washington, an appointee of President Ronald Reagan.

A 9th Circuit panel rejected the Trump administration's motion for a partial stay of Coughenour's injunction in February. State of Washington et al. v. Trump et al., 25-807 (9th Circ., filed Feb. 7, 2025). The case is ongoing, and oral arguments before a 9th Circuit panel have been scheduled for June 4.

U.S. Solicitor General D. John Sauer devoted the bulk of his 22-page Supreme Court brief not to the administration's argument that U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) does not cover children born of non-citizen parents but on the argument that "universal" injunctions should be sharply curtailed.

"By allowing single, unelected federal judges to co-opt entire executive-branch policies at the drop of the hat, they create needless interbranch friction and perpetrate a truly lupine encroachment by the Judiciary on the President's Article II authority," Sauer wrote.

"Such injunctions are also unworkable," he continued. "In case after case, they force the Executive Branch to play jurisdictional whack-a-mole in the same plaintiff-selected jurisdictions across the Nation," he added. Trump et al. v. State of Washington et al., 24A885 (S. Ct., filed March 13, 2025).

The Trump administration argument may find some sympathetic ears on the court. In a 2020 case, Justice Neil M. Gorsuch - in a concurring opinion in a case in which justices denied a stay of a rule allowing the government to deny green cards to immigrants who officials believe are likely to collect public benefits - wrote that the court needed to address nationwide injunctions.

"It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice," Gorsuch, a Trump appointee, wrote in an opinion joined by Justice Clarence Thomas, an appointee of President George H.W. Bush. Department of Homeland Security et al. v. New York et al., 19A785 (S. Ct., filed Jan. 13, 2020).

Washington Attorney General Nicholas W. Brown argued in a brief that the Trump administration is turning to the nationwide injunction argument, even though every court that has considered the case has rejected its argument on birthright citizenship, out of desperation.

"Being directed to follow the law as it has been universally understood for over 125 years is not an emergency warranting the extraordinary remedy of a stay," the Washington attorney general's office wrote.

"They argue that nationwide injunctions categorically 'exceed 'the power of Article III courts' and contradict public policy," the Washington attorney general's office brief added. "But the absence of any conflict here, including as to the nationwide scope of relief, is reason enough for this Court to deny the federal government's emergency stay request."

Stanford Law School professor Mila Sohoni, in an amicus brief written by Russell & Woofter LLP partner Kevin K. Russell, argued that the government's policy concerns about universal injunctions "are both legally irrelevant and overstated."

"And in this case, universal preliminary injunctive relief is warranted to maintain the status quo and to prevent grave, irreparable harm during the pendency of these actions," Russell wrote.

U.S. District Judge Leo T. Sorokin of the District of Massachusetts, an appointee of President Barack Obama, argued in his preliminary injunction in California's case that injunctive relief limited to state plaintiffs would be "inadequate" because it wouldn't protect a family with a new baby that moved from Massachusetts to a state like Pennsylvania in a different circuit.

Nationwide injunctions have been a thorn in the side of recent presidents. Many were issued against Trump during his first term, and Republican attorneys general often filed constitutional challenges to initiatives of President Joe Biden in Texas and the 5th U.S. Circuit Court of Appeals, which is dominated by Republican appointees.