By Daniel H. Galindo

Yesterday the Court heard arguments in Trump v. CASA, Inc. Although the news makes it seem like the Supreme Court is deciding whether or not automatic birthright citizenship will continue, the case before the Court is not about that at all.

Instead, the only issue before the Court at this time is whether injunctions issued by federal district courts should apply nationwide, to everyone, or whether such injunctions should only apply to the individual or group of individuals that actually filed a lawsuit.

An injunction is an order putting on hold the implementation of the law, regulation, order, etc. to allow the court the time it needs to make a decision on whether the law, regulation, or order is lawful. The actual determination of legality is referred to a decision "on the merits."

The reason this is the issue in front of the Court is because three federal district courts issued such injunctions putting on hold the implementation of the "Protecting the Meaning and Value of American Citizenship" Executive Order (EO) and the Trump Administration was not very happy about it. **For the record at least 40 different lawsuits against the Trump Administration have also yielded injunctions putting on hold whatever nonsense the Administration was trying to pass as legal.** The Administration appealed one of the injunctions to the Fourth Circuit Court of Appeals and lost. This paved the way for the Administration to appeal to the Supreme Court.

Justice Kagan summarized this whole case with a benchslap in the following clip:

Interpreting what she said for non-attorneys—Justice Kagan called out the government for essentially arguing that without nationwide injunctions (which is what the government wants so that their EOs will go into effect immediately) every single person who might be impacted by a law would have to bring their own case in order to receive the same protection that a court already gave another person (by determining the law/regulation/order in question was illegal). That's an absurd proposition because it would allow the government to continue doing something unlawful with everyone else who did not sue the government for the same reason.

Justice Sotomayor twice asked the government's attorney (in so many words) would you be okay with not having nationwide injunctions to use against another president who issued an executive order taking away everyone's guns?

By the government's own arguments in this case, courts should be powerless to stop the government nationwide from taking people's guns while the courts decide on the constitutionality of such an action and should only be able to stop the government from taking the guns away from only those individuals who filed a lawsuit challenging such an order taking everyone's guns away. Everyone else would be shit out of luck and it would be perfectly fine for the the government to start taking people's guns for months until the Supreme Court ruled it was an unconstitutional violation of the 2nd Amendment. Pretty crazy stuff and I don't even like guns.

The other point Justice Kagan made was that if no one can ask for a nation-wide injunction, then the government could lose against the one individual who files suit, and again against another individual, and again and again against other individuals, but no one would be able to appeal the issue (because you can't appeal if you win) and thus the constitutionality of the law/regulation/order in question would be guaranteed to never reach the Supreme Court—also guaranteeing that most other people would still be impacted by the unlawful law/regulation/order. Bonkers!

We'll have to wait several months before the Court issues their opinion (decision) but all things point to the Trump Administration losing, again.

As to the merits of the cases at the district court level (which no court has yet ruled on) the EO flatly ignores the 14th amendment of the Constitution by providing that:

… the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

In other words, pursuant to the EO children born in the United States must have a parent that is either a permanent resident or a citizen in order to automatically obtain U.S. citizenship.

The reason the government has lost over and over so far in fighting the injunctions against this EO is that the 14th Amendment says, verbatim: "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."

How do you argue against the plain language of the Constitution? Watch the government try in the District Court in Maryland, the Western District of Washington, and in the District of Massachusetts. In whatever flailing way they might, they will have to contend with at least four Supreme Court cases going back to 1898 (127 years) that have consistently said: no matter what, if you are born in the United States, you are a citizen. Period.

As I argued in my previous post—it seems the Administration does not care about losing. Why? Because it achieves its goal of making its political base think it's accomplishing something at the moment it takes the unlawful action. For others, the Administration succeeds in creating chaos, distress, fear, and diverting resources from other causes. Months, and maybe even years, may go by before the legality of the matter is finally decided. By then, everyone has moved on.

If you take anything away from this article I hope it's the awareness that most news media headlines about legal matters are usually oversimplified and often do not accurately portray the actual issue. Imagine a headline that read, "Supreme Court Looks Eager to Uphold Nationwide Injunctions." No one, literally no one, would click on that headline.
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Daniel H. Galindo is the son of Mexican immigrants and is passionate about immigrant rights, especially in the field of employment. As a litigator, Daniel represents employees at all career levels and in diverse range of industries. Daniel litigates in courts at all levels of the judicial system in California and is admitted to practice in the U.S. District Courts for the Northern and Eastern Districts of California, the U.S. Court of Appeals for the Ninth Circuit, and the U.S. Supreme Court.