Trump’s Big Ask for the Supreme Court

What’s at stake today.

Donald Trump and the Supreme Court have been circling each other since he took office in January.

Trump burst out of the gate with 150+ executive orders, many of them destined from the time he signed them to eventually reach the justices. When the president clashed with district court judges — two of whom are currently probing whether he has complied with their orders — Chief Justice John Roberts stepped in to defend the jurists from impeachment threats.

Just this week, Roberts said the rule of law is “endangered.” He was actually referring to a lack of civics education among young people, but the comment was widely interpreted as a jab at Trump. (“He who saves his Country does not violate any Law,” the president has tweeted.) Some of Roberts’ more liberal colleagues have gone even farther in their warnings: Justice Ketanji Brown Jackson suggested this month that attacks on judges by Trump allies “seem designed to intimidate those of us who serve in this critical capacity.”

And yet, for all the rhetorical posturing, the Trump administration has yet to stare down The Nine on their home turf: the courtroom. That ends today, as the justices prepare to hear their first arguments for a case involving Trump since he returned to office.

I’m headed to the court now, where I’ll be covering the hearing — but before I step inside the room, I want to give you a preview of what the arguments will be about.

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Today’s case stems from one of Trump’s Day One executive orders, seeking to end birthright citizenship for the American-born children of undocumented immigrants.

Birthright citizenship is the idea that anyone born on U.S. soil is automatically an American citizen. The vast majority of countries around the world don’t have birthright citizenship, but in the U.S. it has typically been seen as a guarantee of this sentence from the 14th Amendment:

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 Trump administration has argued that the phrase “and subject to the jurisdiction thereof” excludes the children of people who are here illegally. That interpretation was dismissed by the Supreme Court in the 1898 case, United States v. Wong Kim Ark, but the administration’s ultimate hope is that the justices overturn that precedent.

But I say “ultimate hope” because the merits of Trump’s birthright citizenship order — and whether to revisit Wong Kim Ark — won’t be the focus of the court’s arguments this morning. That’s for another day. Instead, the Trump administration is asking the justices to defang a legal tool known as nationwide injunctions, which have been used to pause Trump’s effort targeting birthright citizenship (and many of his other orders).

First, let’s walk through some legalese. Let’s say the president issued an executive order tomorrow requiring every pizza sold in the United States to be topped with pepperoni. This would put the makers of other pizza toppings at a competitive disadvantage, and the American Pineapple Association might sue to block the edict, alleging a violation of the Commerce Clause. As a first step, they would ask the court for a temporary restraining order, an emergency short-term order blocking the president’s move from going into effect during litigation.

If a TRO is granted, the pineapple sellers might then ask for a preliminary injunction, which is a longer-term block on the executive order. Like a TRO, though, the injunction isn’t a ruling on the underlying merits of the executive order; it merely blocks the directive from being enforced as the matter goes through the courts.

There are two ways that could look. Let’s say the Pineapple Association brought their case to me, a district court judge in St. Louis. I could either say:

I, Judge Gabe Fleisher of the Eastern District of Missouri, hereby issue a preliminary injunction temporarily blocking the Pepperoni Order from going into effect in the Eastern District of Missouri.

Or I could say:

I, Judge Gabe Fleisher of the Eastern District of Missouri, hereby issue a preliminary injunction temporarily blocking the Pepperoni Order from going into effect anywhere in the United States.

Suddenly, from my imaginary courtroom in St. Louis, I’ve stopped the president of the United States from enforcing an executive order not just in my jurisdiction, but in all 50 states. Pretty powerful, right?

This is an example of a nationwide injunction: a single district court judge blocking something from taking effect for the whole country. Interestingly, there isn’t a law or previous Supreme Court ruling that explicitly greenlights this practice.

Rather, it’s something district court judges just…started doing. Some scholars argue that nationwide injunctions have been a thing since the 1800s, but most experts peg the beginning of their use in the 1960s. In recent years, they’ve become strikingly more common.

If you take cases involving presidents, six nationwide injunctions were put in place against George W. Bush, according to the Harvard Law Review. 12 were imposed against Barack Obama. Then, 64 were put in place during Trump’s first term. The number went back down to 14 under Joe Biden; so far, 30 have been imposed during Trump’s second term, per Bloomberg. (Trump has also issued executive orders at a faster clip than his predecessors, which partially explains the increase.)

Nationwide injunctions are also sometimes tied to another phenomenon known as judge shopping.

In our pizza example, let’s say the American Pineapple Association is located in Hawaii; the president, of course, is based in Washington, D.C. Why did they take their case to a judge in St. Louis? Well, maybe they know that I don’t particularly like pepperoni, and they thought my district was their best shot at receiving the relief they sought. That’s judge shopping in action, and — as we have seen — it can sometimes lead to consequences for the whole country.

According to Bloomberg, 22 of the nationwide injunctions put in place against Trump this term have been by Democratic-appointed judges; eight have been imposed by Republican appointees.

But back to birthright citizenship.

Since Trump issued his original order on January 20, four separate district judges — a Reagan appointee in Washington state, a George W. Bush appointee in New Hampshire, an Obama appointee in Massachusetts, and a Biden appointee in Massachusetts — have issued nationwide injunctions blocking the administration from enforcing it across the country.

Today’s Supreme Court arguments will give Trump officials an opportunity to persuade the justices to strike down the nationwide injunctions. (Specifically, they are asking for a stay, which is what it’s called when a court blocks a lower court’s order.) But the administration is also pushing the court to do away with nationwide injunctions entirely.

“Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere,” the Trump administration wrote in a Supreme Court filing. “The sooner universal injunctions are ‘eliminated root and branch,’ ‘the better.’”

Even though the justices are only tackling a side-issue in the birthright citizenship dispute, their ruling after today’s arguments could end up having an even larger impact than how they rule on the executive order itself.

This will be the first time the court has directly taken on the issue of whether district court judges can issue such sweeping orders. If the justices take Trump’s side, it will mark a huge change for the American court system, taking away a key tool that Democrats have used to nationally block Trump orders on immigration, spending, transgender rights, and a range of other issues.

Notably, though, it’s a change that presidents of both parties — at different times — have asked for.

It was only six months ago that the Biden administration asked the Supreme Court to finally rule on whether nationwide injunctions are permissible.

The issue has also generated bipartisan attention in Congress, though never aligned behind the same bill: Mitch McConnell introduced a measure last year that would have limited nationwide injunctions, the same week that Chuck Schumer unveiled a bill specifically aimed at judge shopping.

As always, it’s important to be consistent when analyzing these questions — focusing on the principle, not the politics, of the issue.

If you’re a Democrat who thought it was unfair that a district court judge in Texas could impose a nationwide injunction against medication abortion, then you have to ask yourself if you think judge should be able to impose similar blocks against Trump.

Likewise, if you’re a Republican who believes district court judges have been overstepping their powers in the Trump era, you have to consider whether you were similarly frustrated by nationwide injunctions against Biden.

If the Supreme Court takes nationwide injunctions off the table, they’ll be off the table for everyone — for Democrats challenging Republican policies, and for Republicans challenging Democratic policies. The consequences would be enormous.

Several of the justices have already made their opposition to nationwide injunctions quite clear. Justice Neil Gorsuch has called them “patently unworkable.” Justice Clarence Thomas has called them “legally and historically dubious.” Justice Brett Kavanaugh has said that prohibiting them “may turn out to be the right rule as a matter of law.” And Justice Samuel Alito has said that the answer to whether “a single district court judge” can make such a sweeping order of the U,.S. government “should be an emphatic “No.’”

That makes four justices. A fifth would be needed to end nationwide injunctions, which is why Chief Justice John Roberts and Justice Amy Coney Barrett will be closely watched today.

Oral arguments start at 10 a.m. The link to listen along is below — but if you aren’t able to, I’ll have my full inside-the-room reporting in tomorrow’s newsletter on how the justices handle their first face-to-face encounter with the second Trump administration.

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What else you should know…

• A federal judge in Virginia ordered the release of Georgetown researcher Badar Khan Suri, one of several pro-Palestinian visa holders who had been detained by the Trump administration. (NBC)

• House Speaker Mike Johnson and Senate Majority Leader John Thune are pushing back against Trump’s attempts to seize control of the Library of Congress. (Politico)

• All the necessary House committees have advanced their portions of the Republican reconciliation package, but GOP leaders have yet to quell all the party’s dissenters. (Semafor)

• Three White House officials have been found to have ties to antisemitic extremists. (NPR)

• Several of Joe Biden’s Cabinet members did not believe that he could fully function as commander-in-chief, according to a new book. “The president can give you four to six good hours a day,” one said. (CNN)

• Russian president Vladimir Putin is not slated to be present for Ukraine peace talks in Istanbul today. Ukraine’s Volodymyr Zelensky has said he would attend the negotiations if Putin did. (BBC)

• Director of National Intelligence Tulsi Gabbard has fired two leaders of the National Intelligence Council, a panel that recently issued an analysis undercutting Trump’s rationale for invoking the Alien Enemies Act. (NBC)

• Rep. Shri Thanedar, a Michigan Democrat, pulled back last-minute from a ploy to force a Trump impeachment vote on the House floor at the request of Democratic leaders. (ABC)

• Former Fox News host Jeanine Pirro has been sworn in as the U.S. attorney in Washington, D.C. (CNN)