At a time when President Trump claims unprecedented executive powers, the Supreme Court may be prepared to eliminate significant control of the presidential authority.
On Thursday, the Court held oral arguments about the ability of federal courts to issue precautionary measures to stop the actions of the unconstitutional government. From the arguments, it is clear that the judges are ideologically divided and that the result will probably become the president of the Supreme Court John G. Roberts Jr., Brett M. Kavanaugh and Amy Coney Barrett, and if at least two of them will join their three liberal colleagues to preserve the ability of a federal court to issue national injuries against executive orders.
The cases before the Court involve the blatantly unconstitutional order of the president to eliminate the citizenship of birth law in the United States.
The first sentence of the 14th amendment declares that “all persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States and the state in which they reside.”
For a long time it has been understood that it means that all those born in this country are citizens of the United States, regardless of the migratory state of their parents. That was the participation of the Supreme Court in 1898, in the United States vs. Wong Kim Ark, who clarified what it means “subject to its jurisdiction.” The court ruled that the phrase excluded only “children born from alien enemies in hostile occupation and children of diplomatic representatives of a foreign state.” Otherwise, if you are born here, you are a citizen.
But President Trump's executive order said that after February 19, only those born from parents who are citizens or green card holders could be citizens of the United States. The demands that challenge the order were brought in several federal courts. Each found the unconstitutional executive order and issued a court order nationwide to prevent it from being implemented anywhere in the country.
In oral arguments on Thursday, there was an early discussion about the unconstitutionality of the executive order of birth citizenship. Judge Sonia Sotomayor said that four precedents of the Supreme Court had resolved that all those born in the United States were citizens.
But the general lawyer D. John Sauer, who represents the Trump administration, emphasized that the constitutionality of Trump's executive order was not before the court, only the question of whether a Federal District Court could order an order of the executive branch for the entire country. Federal courts have always had this authority, and in recent years it has been used to block the policies of democratic and republican administrations.
Now the Trump administration is urging a radical change, completely eliminating that authority. At least one of the judges, Clarence Thomas, clearly supported that opinion. He stressed that national mandates did not begin until the 1960s and are unnecessary. Judges Samuel A. Alito Jr. and Neil M. Gorsuch, who have previously expressed their opposition to national mandates, also seemed supporters with the position of the Trump administration.
Consider what an end of national mandates would mean: a challenge for a government policy would have to be presented separately in each of the 94 federal districts and, ultimately, be heard in each federal circuit court. It would create inconsistent laws, in the case of citizenship, a person born of immigrant parents in a Federal District would be a citizen, while one born in identical circumstances in another district would not be, at least until, unless the Supreme Court solved the problem for the entire country. Even Gorsuch expressed concern about the chaos of a mosaic of citizenship rules.
The main argument of the president is that precautionary measures throughout the country prevent the executive branch from doing its constitutional duties. But as Judge Elena Kagan pointed out, if the president is violating the Constitution, his action must stop.
The oral arguments left no clear sense of how the court will decide the problem.
Sotomayor, Kagan and Ketanji Brown Jackson certainly counteract Alito, Thomas and Gorsuch. The three most liberal judges would continue to allow national mandates, and also reject the executive order on the citizenship of birth rights.
But the three most moderate conservatives, Roberts, Kavanaugh and Barrett, did not shake hands. Some of their questions suggested that they could look for a commitment that maintains precautionary measures throughout the country, but impose new limits on when they can be used.
In his first months in office, Trump has issued a wave of shamelessly illegal and unconstitutional executive orders. Federal courts are the only way to verify these orders and maintain the rule of law. This is not the time for the Supreme Court to weaken to a large extent the ability of the Federal Judiciary to stop illegal presidential acts.
Erwin Chemendnsky, dean of the UC Berkeley Law Faculty, is an opinion writer.
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Ideas expressed in the piece
- The author argues that precautionary measures throughout the country are a crucial control over presidential overreach, particularly when executive actions blatantly violate constitutional rights, such as the guarantee of the citizenship of birth law of the 14th amendment. Eliminate this power would force litigants to challenge unconstitutional policies repeatedly in 94 federal districts, creating legal chaos and inconsistent results[2][5].
- Federal courts have historically used national mandates to block unconstitutional policies of democratic and republican administrations, preserving the rule of law. The author emphasizes that this tool is especially vital under a president who often issues legally doubtful executive orders[3][4].
- The precedents of the Supreme Court, including United States v. Wong Kim ArkHe affirms that the citizenship of birth law is constitutionally protected. The precautionary measures at the national level ensure the uniform application of such established legal principles, avoiding fragmented citizenship rules that could destabilize civil rights[1][5].
Different views on the subject
- Critics argue that national mandates undermine the structural design of the Federal Judiciary, which operates through unprecedented regional circuits between the jurisdictions. Grant a single district judge to stop policies throughout the country interrupts this system and risks contradictory decisions[5][4].
- The opponents argue that such mandates violate the principles of non -attached, where the executive branch is not subject to adverse decisions outside specific cases. This could encourage “judge purchases” and politicize the courts, as seen in the high -risk partisan litigation[3][5].
- Some legal academics propose to limit national mandates to the cases of bad faith of the government, such as refusing to comply with the established law. A “three rule” standard, where precautionary measures are applied nationwide only after three consistent failures, could balance judicial supervision with procedural justice[4][5].
