Comment: When should judges have power to tell a president no?

By Erwin Chemerinsky / Los Angeles Times

At a time when President Donald Trump is claiming unprecedented executive powers, the Supreme Court may be poised to eliminate a significant check on presidential authority.

On Thursday, the court held oral arguments about ending the ability of federal courts to issue nationwide injunctions to halt unconstitutional government actions. It is clear from the arguments that the justices are ideologically divided and the outcome likely will turn on Chief Justice John Roberts Jr., Brett Kavanaugh and Amy Coney Barrett, and whether at least two of them will join their three liberal colleagues in preserving the ability of a federal court to issue nationwide injunctions against executive orders.

The cases before the court involve the president’s blatantly unconstitutional order to eliminate birthright citizenship 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 the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

This has long been understood to mean that everyone born in this country is a United States citizen regardless of the immigration status of their parents. That was the Supreme Court’s holding in 1898, in United States vs. Wong Kim Ark, which clarified what “subject to the jurisdiction thereof” means. The court ruled that the phrase excluded only “children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign state.” Otherwise, if you’re born here, you are a citizen.

But Trump’s executive order said that after Feb. 19, only those born to parents who are citizens or green card holders could be United States citizens. Lawsuits challenging the order were brought in several federal courts. Each found the executive order unconstitutional and issued a nationwide injunction to keep it from being implemented anywhere in the country.

At the oral arguments Thursday, there was some early discussion about the unconstitutionality of the birthright citizenship executive order. Justice Sonia Sotomayor pointed out that four Supreme Court precedents had resolved that everyone born in the United States was a citizen.

But Solicitor General D. John Sauer, representing the Trump administration, was emphatic that the constitutionality of Trump’s executive order was not before the court, only the issue of whether a federal district court could enjoin an executive branch order for the entire country. Federal courts have always had this authority, and in recent years it has been used to block policies of Democratic and Republican administrations.

Now the Trump administration is urging a radical change, doing away with that authority altogether. At least one of the justices, Clarence Thomas, clearly endorsed that view. He stressed that nationwide injunctions did not begin until the 1960s and are unnecessary. Justices Samuel Alito Jr. and Neil Gorsuch, who have previously expressed opposition to nationwide injunctions, in their questions also seemed sympathetic to the Trump administration position.

Consider what an end to nationwide injunctions would mean: A challenge to a government policy would have to be brought separately in each of 94 federal districts and ultimately be heard in every federal circuit court. It would create inconsistent laws — in the case of citizenship, a person born to immigrant parents in one federal district would be a citizen, while one born in identical circumstances in another district would not be — at least until, and unless, the Supreme Court resolved the issue for the entire country. Even Gorsuch expressed concern about the chaos of a patchwork of citizenship rules.

The president’s primary argument is that nationwide injunctions prevent the executive branch from carrying out its constitutional duties. But as Justice Elena Kagan pointed out, if the president is violating the Constitution, his action should be stopped.

The oral arguments left no clear sense of how the court will decide the issue.

Sotomayor, Kagan and Ketanji Brown Jackson would without doubt counter Alito, Thomas and Gorsuch. The three most liberal justices would continue to allow nationwide injunctions, and they would also strike down the executive order on birthright citizenship.

But the the three more moderate conservatives — Roberts, Kavanaugh and Barrett — did not tip their hand. Some of their questions suggested that they might look for a compromise that would maintain nationwide injunctions but impose new limits on when they can be used.

In his first months in office, Trump has issued a flurry of blatantly illegal and unconstitutional executive orders. The federal courts are the only way to check these orders and uphold the rule of law. This is not the time for the Supreme Court to greatly weaken the ability of the federal judiciary to stop illegal presidential acts.