The United States Supreme Court is considering a significant case. To help you understand the situation, I want to provide some background information about the three levels of the federal court system.
First are district courts, with at least one in each state. New Hampshire has one in Concord.
Second are circuit courts, which hear appeals from district courts in their respective regions. There are 11 such regions in the country, plus the Federal Circuit. New Hampshire is in the First Circuit, which includes Massachusetts, Rhode Island, and Puerto Rico. While trials (jury and “bench trials”) are held only in district courts, appeals go first to circuit courts, and then to the Supreme Court.
The Supreme Court is very selective about the appeals it takes. When a case is appealed, the court receives the case record and written briefs, and “oral arguments” are scheduled. Here, presentations are made by parties involved in the lawsuit, and by groups with an interest in the issue, called “amicus curiae,” Latin for “friend of the court.”
While it was once unusual when I was in law school to hear these arguments without being present, in our digital age, you can stream them from the court’s website and many news organizations.
My husband and I recently listened to the oral argument before the United States Supreme Court on the case regarding birthright citizenship, Trump v. CASA. This case involves a group representing children of immigrants challenging a presidential executive order that aimed to NEW BOSTON LEGAL prevent children born in the United States to non-citizen parents from being recognized as U.S. citizens.
If you listened to expect a full discussion of the order’s constitutionality, you would have likely been disappointed. Instead, the discussion focused on “universal injunctions.” At least 40 U.S. District Courts have issued these injunctions, prohibiting the administration from enforcing the order. As I hope to explain, this issue is just as important as the birthright citizenship question itself because the latter may never be decided by the Supreme Court.
The 14th Amendment to the United States Constitution provides that “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.” The Supreme Court has held in four previous cases that this applies to the children of immigrants who are born in the United States, even if their parents are here illegally.
Organizations representing immigrant groups, as well as several states, have filed lawsuits challenging the administration’s executive order. States have an interest because the order creates uncertainty about who is a “citizen,” complicating the administration of state laws concerning issues like voting, education, and government benefits.
These lawsuits were filed in District Courts. Every court that has considered the issue, including those with judges appointed by President Trump, has ruled the order unconstitutional and issued an injunction prohibiting its enforcement. These injunctions apply not only to the individuals and groups bringing the lawsuits, and local public officials, but to every person and public official nationwide.
The recent Supreme Court argument centered on whether District Courts have the authority to issue such “universal” injunctions.
At first glance, the administration’s position seems logical—why would a court in, say, Concord, New Hampshire, have the power to prevent a federal order from being enforced in another state? The answer lies in the understanding of our Constitution: we cannot have a workable system of laws governing the whole country if they can only be enforced through individual lawsuits brought one at a time.
The administration of laws at the state level would be in chaos—for example, one person born in the United States to immigrant parents would be entitled to vote because he had hired a lawyer and filed a lawsuit, while his neighbor in the same position who had not gone to court would not. The courts would be overwhelmed with cases challenging such orders, and their ability to decide other types of cases would be frozen.
The irony of the administration’s position is, as Justice Sotomayor pointed out, that it creates a “catch-me-if-you-can” scenario. Illegal orders would continue to apply to everyone, except those with the knowledge and resources to go to court. And, unless the government appealed, the Supreme Court would never have the chance to decide the issue.
One might think, “that’s fine, I don’t want children of illegal immigrants to have citizenship rights.”
But Justice Sotomayor offered another example—a President who issues an order confiscating every gun in the country, because of a desire to stop gun violence. I think we’d all agree that it would violate the Second Amendment to the Constitution. But if someone were to sue and the court issued an injunction prohibiting enforcement of the order which only applied to the person bringing the lawsuit, everyone else would still have to turn in their guns.
If we disagree with a Constitutional provision, the remedy is to try to amend the Constitution, not to limit the power of the courts to enforce the Constitution as currently written.
