Four Simple Reasons Why Trump Should Lose the Birthright Citizenship Case, and Badly - Balls and Strikes

[In It to Win It]

Balls and Strikes

The Supreme Court heard oral argument on Thursday in Trump v. CASA, the case about President Donald Trump’s executive order attempting to rescind the Constitution’s grant of birthright citizenship. States and activists filed multiple lawsuits challenging the order as a violation of the Fourteenth Amendment. And as those cases are ongoing, three federal district courts granted nationwide preliminary injunctions—a type of interim relief that stops Trump from implementing his order unless and until courts decide the order is legal.

Without those injunctions, the executive order would have already threatened the citizenship status of hundreds of thousands of children born in the United States. Trump is now asking the Court to narrow the injunctions so that they apply solely to the plaintiffs in each case—effectively asking for a permission slip to violate the rights of everyone who isn’t part of the lawsuit.

It should not be difficult for the Court to deny such a request. Yet the Court and many Court- watchers are wringing their hands here—not (necessarily) over the order itself, but over the use and, sometimes, abuse of nationwide injunctions. These injunctions have proliferated in recent years, frustrating people across the political spectrum. While one district court judge may block Trump’s lawlessness, another judge—say, a judge in Amarillo, Texas—may become the go-to guy for any aggrieved conservative who wants a ruling that forces right-wing policies on the rest of the country. So now, instead of applying the standard for reviewing preliminary injunctions, the justices are fussing over whether nationwide injunctions should exist at all.

But this hemming and hawing confuses the issue of injunction abuse with the actual issue in Trump v. CASA. In this case, the Supreme Court doesn’t need to review all nationwide injunctions. It only needs to review this particular nationwide injunction. And that task is easy. There are four simple factors that courts are supposed to use to evaluate this kind of temporary relief, and every one of them clearly cuts against Trump.