Universal Relief and the Birthright Citizenship Cases
Why these cases are a good vehicle for the universal-relief question
Today the acting Solicitor General filed emergency applications in the Supreme Court seeking a partial stay of three lower-court national injunctions. All three injunctions came in challenges to President Trump’s executive order purporting to abandon birthright citizenship. The cases are styled Trump v. New Jersey, Trump v. Washington, and Trump v. Casa, Inc.
This cluster of applications seems like an unusually good opportunity to address universal injunctions.
First, the government will lose on the merits. Under current law, the executive order purporting to abandon birthright citizenship is flagrantly illegal, and the revisionist historical accounts that have been offered so far do not provide any reason to change that assessment (see, e.g., this post).
The weakness of the government’s position on the merits matters for the question of whether these cases are a good vehicle for the universal-relief question. On at least three prior occasions the Supreme Court has granted certiorari to consider the legitimacy of universal relief but has failed to reach the question because of its resolution of standing or the merits (the cases I’m thinking of are Summers v. Earth Island, Trump v. Hawaii, and Trump v. Pennsylvania). In the birthright-citizenship cases, neither standing nor the merits will keep the Court from addressing the remedy question.
Second, in these cases, the plaintiffs are challenging the enforcement of an executive order, which means that they are not suing under the Administrative Procedure Act. (Franklin v. Massachusetts might be wrong, but it’s the current state of the law.) That in turn matters for the vehicle question because it means the Court can cleanly address the scope of relief as a general matter, without having to address the distinctive intricacies of the Administrative Procedure Act.
Third, there was a brief but well-reasoned dissent in one of the cases below from Judge Niemeyer. Notably, in that case, the panel majority’s opinion presented Fourth Circuit precedent as if it uniformly supported universal relief, but the picture is more complicated. In 2001 the Fourth Circuit rejected universal relief in Virginia Soc’y for Human Life, Inc. v. FEC, anticipating many of the arguments that are still made against it today (see pp. 20-22). And in 2020 a Fourth Circuit decision by Judge Wilkinson went off like a neutron bomb against national injunctions. Unfortunately, that decision was subsequently vacated by the en banc Fourth Circuit.1
Even so, there is also a reason to think these emergency applications are not a good vehicle. They’re emergency applications. One of the structural consequences that universal relief produces is a rapid acceleration of judicial decisionmaking at every level—in the district courts, in the courts of appeals, and at the Supreme Court. There would certainly be an irony in eliminating the universal injunction on an emergency application.
Yet that reason to think it’s not a good vehicle should be qualified. Unlike many of the merits questions that arrive in a hurry at the Court, the universal-relief question is one on which the Court has multiple times received full briefing, and ever since the meteoric rise of the national injunction in 2015, it has been a subject of vast attention by courts and scholars.
Moreover, precisely because the merits are so lopsided, the substantive question is one that is less likely to benefit from percolation. That makes this case relatively unusual (contrast some of the harder questions about the USAID case that Nick Bagley and I raised). The very lopsidedness of the merits means that rapid action by the Court on the universal-relief question poses fewer epistemic problems than is typical.
The lopsidedness of the merits also has implications for the human cost of interim uncertainty while the relatively deliberate judicial process plays out. Put simply, anyone who challenges the executive order is highly likely to win. And class actions can be brought, just like in the Washington case, which means there is no need for thousands or even hundreds of individual suits.
The one other challenge to these applications as a vehicle is that the acting Solicitor General also throws in arguments against broad state standing and associational standing. There are reasons to be skeptical of both phenomena, but that is too much for the Court to tackle on the emergency applications. All the Court would need to do is stay the injunctions to the extent that they go further than is necessary to protect the parties, remanding for the district courts to tailor them to the parties and the specific harms those parties face.2
Finally, I should underscore that the scope of remedy question is distinct from the underlying merits. In any particular case, of course, it can be hard to see past the merits. But that kind of decoupling of the two legal questions is critical—not only because it is essential to the work of lawyers in general, but also because it is necessary to avoiding motivated reasoning about the scope of remedy. Justice Kagan made a closely related point in her remarks at Northwestern three years ago:
“This has no political tilt to it,” Kagan said, taking aim not only at the sweeping injunctions but at the transparent “forum shopping” by litigants filing cases in courts they think will be friendliest to them.
“You look at something like that and you think, that can’t be right,” Kagan said. “In the Trump years, people used to go to the Northern District of California, and in the Biden years, they go to Texas. It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.”
Any illegal act by the president should be rejected by the federal courts. But they should reject it as courts do—one case at a time, with remedies for the parties, allowing room for what Justice Kagan called “the normal process.” In that process, the way one case extends to other cases is not through universal injunctions, but through ordinary principles of stare decisis.
In a leading study of courts, Martin Shapiro called the dispute-resolution function “the basic social logic of courts” and the “most basic source of [their] legitimacy.”3 It’s always worth respecting that logic and source of legitimacy. But it’s especially important now, as the federal courts confront new challenges from an increasingly emboldened executive branch. If the forecast is famine, hold on to your seed corn.
Judge Niemeyer was on the panel.
For this kind of pro tanto stay, see Austin v. U.S. Navy Seals 1-26, 142 S. Ct. 1301 (2022) (mem.) (staying an injunction “insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions” (emphasis added)).
Martin Shapiro, Courts: A Comparative and Political Analysis 36, 56 (1981). See also Robert Post, The Supreme Court’s Crisis of Authority: Law, Politics, and the Judiciary Act of 1925 (SSRN Draft of December 29, 2024).