The nine judges on the Supreme Court showed little consensus as they grilled government lawyers about the costs and benefits of lower judges imposing nationwide restraining orders on President Donald Trump’s reformist policies, including his update of birth citizenship policies.
Trump’s lawyers argued that the many national restraining orders abort the evolution of courtroom and public debates on the issues, and they also block administration planning for how their electoral mandates should be implemented.
The injunctions — which are often imposed by singular partisan judges — should be narrowed to cover just the plaintiffs in each case so that major issues can democratically “percolate” through the multiple courts, the public, and the agencies, said John Sauer, the U.S. solicitor general.
“Percolation of novel, sensitive constitutional issues is a merit of our system,” Sauer said. “It is not a bad feature of the system.”
If nationwide blocks are needed, they can be set via additional class-action lawsuits by people throughout the nation, he added.
The Department of Justice did not ask the Supreme Court to decide the birth-citizenship issue because a “fast and furious” process would stymie the national debate, Sauer said. The courtroom debate on birthright citizenship is expected in 2026.
The judges “signaled that they may try to find a middle ground, perhaps by issuing guidance that would allow such temporary blocks only for some kinds of cases, or by requesting more briefing on the merits of the underlying executive order,” said the New York Times.
Since January, more than 40 nationwide injunctions have been dropped by mostly Democrat-picked judges on Trump’s campaign promises, including many on his mandate to enforce the nation’s immigration laws. The birthright citizenship reform, for example, has been blocked by three injunctions in three appeals courts.
Justice Clarence Thomas seems to agree with the White House, by noting that the United States had “survived” the absence of national junctions until the 1960s.
Opponents of the proposed citizenship update said curbs on nationwide injunctions would create chaos. Local injunctions would create inconsistencies and bureaucratic costs in various states, say those activists, many of who supported the lawless, chaotic, and impoverishing inflow of almost 10 million southern migrants during President Joe Biden’s administration.
The opponents include lawyers for 22 Democrat-run states, nearly all of whom welcomed Biden’s law-breaking migration.
Justice Brett Kavanaugh raised the practical problem of differing jurisdictions by asking the government: “What do hospitals do with a newborn? What do states do with a newborn?”
Those issues can be planned out and resolved if the issue is allowed to “percolate” without a nationwide injunction, Sauer responded.
Left-leaning judges suggested the White House would push past local legal defeats if the court decides to curb national injunctions. “Your argument seems to turn our justice system, in my view at least, into a catch me if you can kind of regime … where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights,” said Justice Ketanji Brown Jackson.
But Sauer argued that her concerns could be resolved through class-action suits.
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