The Injunction Ban, Explained

Written By Leeja Miller

Sources:

Transcript:

The Supreme Court closed out its term last week by issuing a slurry of consequential rulings. One of the most notable decisions of its term came Friday in Trump v. Casa Inc., the birthright citizenship case. Today we’re talking birthright citizenship, nationwide injunctions, and what this all means.

So we’re dealing with Executive Order 14160 entitled Protecting the Meaning and Value of American Citizenship which Trump signed on his first day back in office, January 20th. Lawsuits were filed immediately after Trump signed that executive order challenging the constitutionality of the order. The order says it is now the policy of the US to no longer issue or accept documentation of citizenship under two scenarios: “(1) when a person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth or (2) when [a] person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.” That is clearly and blatantly in violation of the 14th Amendment of the US constitution. In fact, we already fought an entire war over whether or not someone born on US soil and subject to the jurisdiction thereof should be considered a full citizen. Because in the lead up to the Civil War, one central question was whether or not black people, especially freedmen or enslaved people whose enslavers brought them into free states, were citizens and deserved the protections of citizenship guaranteed in the Constitution. The Supreme Court got it wrong back then, too. Its decision in Dred Scott v. Sandford declared that Dred Scott was not a citizen because he was black and therefore had, quote “No Rights Which the White Man was Bound to Respect.” That case was one of the impetuses of the Civil War. Throughout the slave states in the lead up to the Civil War, freedmen who were traveling there, especially for work on boats traveling from New England down to ports in New Orleans and elsewhere, were routinely abducted and sold into slavery, their word and their papers notwithstanding. The question of whether a person living as a free citizen in a northern state had to have their freedom respected in southern states was central to the few court cases that actually came to fruition in those years.

After the Civil War, when the northern states took over Congress, they passed the 14th Amendment with this very recent history in mind, explicitly adding to the constitution that anyone born on US soil and subject to the jurisdiction thereof, meaning subject to US laws, is a citizen automatically. The only exception is for those born to outside diplomats in the country or to those born to invading forces within the country. And no not the made up “invasion” of immigrants at the southern border, actual invading forces of a foreign army. The idea being that those two categories of people are not subject to the jurisdiction of the US. Other than that, everyone else who sets foot on US soil is subject to the jurisdiction of its laws. If you’re from Mexico and you set foot in the US, you are now subject to the law of the US, as many immigrants are painfully aware these days. And so Trump is attempting, by executive order, to rewrite the constitution, which, for the record, is not allowed, to say that anyone born in the US is a citizen UNLESS the mom and dad aren’t citizens or lawful permanent residents. Despite the government’s best efforts, there is no conscionable way to argue that that executive order is constitutional. It goes against clearly established, long-held precedent as well as the clear plain language of the text of the 14th Amendment. And because of that, the lawsuits challenging this executive order have successfully been granted temporary injunctions while the case plays out in court. An injunction is an order from a judge restraining a party from doing something. In this case, it is temporary while the case plays out in court, so the injunction temporarily bars the federal government from acting on the executive order. And these injunctions, because a federal court has found that the order is likely unconstitutional, are granted on a nationwide basis, meaning they cover the entire country and bar the federal government from acting on the executive order ANYWHERE until the case moves through the court system.

And so, to kick the can down the road to avoid having to prove why they should be allowed to rewrite the constitution by executive order, the government lawyers are arguing it all away by saying hey actually we don’t even need to get to the birthright citizenship argument yet, we’re actually just appealing this nationwide injunction thing. We think that a single federal district court should not be able to override an executive order and have that apply to the entire United States, that’s an overreach and it shouldn’t be allowed. Mind you they of course had no problem with nationwide injunctions when they were getting in the way of Democrat presidents from getting shit done, but now it’s not fair!! And so the Supreme Court’s order from Friday in Trump v. Casa Inc. does not even touch the question about birthright citizenship yet, it is solely about nationwide injunctions.

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The reactions to the nationwide injunction ban has been largely partisan, and you can see that bias in the headlines that the news media uses when covering this topic. This headline from Newsweekl caught my eye “Birthright citizenship remains law of the land — for now — despite SCOTUS ruling” It’s helpful to see in the Ground News browser extension that this publication leans right, so to get a fuller picture of the story on all sides of the political spectrum I can click on Full Coverage. On the Ground News website I can see that 295 sources are covering this topic, with interpretations varying wildly depending on the bias of the publication.

For example, left leaning HuffPost uses the headline “Trump's Victory In Birthright Citizenship Puts Him 1 Step Closer To Being A King” while right leaning The Virginia Star uses the headline Trump Cheers 'Giant Win' at SCOTUS After Justices Limit Nationwide Injunctions.” Depending on where you get your news, you’re going to get very different takes on the same story. And if you only pay attention to one side or the other you might miss the full picture of the national conversation happening around the issue on all sides of spectrum.

This is where Ground News comes in - and why I've been using them for over a year. Today’s partner Ground News is an app and website that offers tools to help you critically analyze the news you read, providing context to understand the full picture.

By using the Ground News Vantage Subscription, I can also see the blindspot feed where I can see stories disproportionately covered by one side of the political spectrum. For example, few right-leaning sources are covering the story “Kristi Noem Secretly Took a Cut of Political Donations” Interesting. I feel better equipped to make sense of what’s happening in the world without being influenced by just one perspective. And listen I’m not the only one who loves Ground News, the Nobel Peace Center even called it "an excellent way to stay informed, avoid echo chambers, and expand your worldview.”

I’m always really impressed with Ground News and genuinely think they’re a great resource. If you want to stay informed on US Politics and more Subscribe through this QR code or our link below at ground dot news slash leeja for 40% off this unlimited access Vantage Plan. It comes out to $5 a month for unlimited access to ALL the features I’ve mentioned. Thanks Ground News!

Now, let’s talk about nationwide injunctions, because they are kind of confusing and weird: why can a single judge in, like, New Jersey, make a decision on a single case and then that single case bars a law from going into effect everywhere across the entire country? The arguments against nationwide injunctions have been growing louder since the first Trump administration. In Trump v. Hawaii, Justice Clarence Thomas wrote a separate concurring opinion inviting further cases challenging nationwide injunctions, saying they were just invented in the wake of the Civil Rights movement and are a judicial overreach that extends beyond the powers given to the Courts in Article 3 of the Constitution. In 2018, the House judiciary committee attempted to push forward an act that would bar courts from issuing nationwide injunctions. Attorney General Jeff Sessions called them an abuse of judicial power, a threat to the rule of law, and a danger to our constitutional order. Okay but let me lay some historical groundwork here first:

Article 3 of the US constitution is dedicated to the judicial branch. It vests the judicial power of the United States in the Supreme Court and in the inferior courts that Congress creates. And it says that that judicial power extends to all cases in both law AND equity, that have to do with the Constitution and the laws of the United States. Now bear with me, it’s worth understanding what I mean when I say “all cases in both law AND equity.” The creators of the US judicial system used English law as a starting point. In English law, there were two separate bodies of law or legal systems, one called common law, and one called equity. Common law was developed in the central courts by judges and provided for money damages for the parties. So if a party sued in a common law court and won, their available remedy would be money. If a party sued in a court of equity, they would be granted less tangible relief, namely injunctions or specific performance, meaning a court ordering someone to do or not to do something. So if you sign a contract with someone and they were supposed to do some work on your house in exchange for money but then they just took your money and didn’t do the work, you could sue in a court of law to get your money back, or a court of equity may instead order specific performance, that the person complete the job. Or if you wanted to stop someone from doing something, you sue in a court of equity to get an injunction, a judicial order telling them they can’t do it. Equitable remedies like injunctions are available because sometimes money damages are not the correct solution to a lawsuit. For example, the plaintiffs suing to get an injunction against the birthright citizenship order are not seeking money. Forcing the government to pay them money doesn’t make sense as a remedy to the issue. The proper remedy is to tell them not to do it. Courts of equity were created as a means of providing more flexible relief than what courts of law could provide.

Under the US constitution, law and equity cases are combined and courts hear both. So you can go to the same judge and ask for money damages or an injunction, and the judge can hear both cases. And under Article 3, judicial power extends to the Supreme Court AND inferior courts created by Congress, and that judicial power includes cases in law AND equity. Furthermore, there is no distinction between whether legal and equitable remedies are available to the Supreme Court or the lower courts in the Constitution–the judicial power extends to ALL of them. I imagine it’s becoming apparent why that kind of technical boring legal backgrounder is important. Injunctions are a form of equitable relief. The constitution gives judges of all federal courts the right to grant said equitable relief.

Further, the first Congress of the United States passed the Judiciary Act in 1789 which basically took the authority the Constitution gave Congress to create courts and exercised that authority. It added the details that the Constitution left out. And Section 11 of the Judiciary Act says that lower courts have jurisdiction over all lawsuits at common law OR in equity.

Now the question is does it give them the right to grant equitable relief to people who are not directly involved in the lawsuit before the court? Well, prior to Friday, the Supreme Court had said yes, actually, they can. Because granting injunctions to people who are not parties to the lawsuit is a practice that is not new. According to law professor Mila Sohoni, who wrote a Harvard Law Review article titled The Lost History of the “Universal” Injunction, linked below in the sources, the universal injunction dates at least as far back as the 1890s when, quote “the Supreme Court endorsed expansive views of the powers of federal courts to control the rights of nonparties through injunctive decries”, or 1913 when the Supreme Court issued a universal injunction in Lewis Publishing Co. v Morgan, or 1916 when federal courts issued injunctions against laws that reached beyond the parties to the case. And when those injunctions were appealed to the supreme court, the court affirmed the lower court injunctions on several occasions. It is only in the last few years, since the reign of Trump began and MAGA brain rot took over a decade ago, that discourse has grown around whether or not courts should be allowed to issue nationwide injunctions. And, as we’ve seen time and again, that brain rot has infected the US Supreme Court and made its way into the judicial opinion it published on Friday, written by Justice Amy Coney Barrett.

In fact the opinion openly demonstrated how the brain rot around universal injunctions has only recently taken hold. Like the court does frequently lately, it claims that there is long and extensive precedent for something in the court and then cites exclusively to cases from within the last few years. This court loves to make its own precedent and then claim the precedent it made is some longstanding Supreme Court mandate. The opinion states that the question must be addressed because members of the court have repeatedly said it should. Then it cites to cases from 2025, 2024, 2023, and justice Thomas’ concurrence in 2018 that I already mentioned. And because of that they simply MUST WEIGH IN! But only as to whether the Judiciary Act of 1789 grants lower courts the right to universal injunctions. They explicitly decided not to address the constitutional question. So article 3? Don’t know her. We’re just talking about the Judiciary Act of 1789.

And it is telling that this opinion was written by Amy Coney Barrett, a devout originalist. Originalism is a form of constitutional interpretation that blindly attempts to adhere to what the words meant at the writing of the constitution, context or societal change be damned. Originalists have a tendency to ignore present day realities and cherry pick history to fit what they claim is originalism. The opinion itself gets into the weeds about courts of equity and various legal remedies, but the main takeaway is that they claim there is no historical equivalent to nationwide injunctions that existed at the writing of the Judiciary Act of 1789, nor did one exist in courts of equity back in ye olde england, therefore they simply cannot exist now. The ruling seems to require that any existing remedies should be, quote “recognizable to an English Chancellor.” Like a little englishman from 1789 should be able to get in a time machine, come here, read the law, and recognize it as the same as the laws he’s familiar with. And as to the arguments in favor of universal injunctions–like to protect against obvious and facially unconstitutional overreach by a maniacal power hungry executive? Well, according to Amy, quote “the policy pros and cons are beside the point.” Because, again, there was no universal injunction available at the time of the founding and, therefore, federal courts can’t do it. No other argument matters.

The opinion also talks about class action lawsuits, which are used to grant relief to a larger group of people by adhering to a strict set of standards that include that all members of the class have the same injury, that the named plaintiff adequately represent the class of people, and that all the people in the class are contacted to allow them to opt out if they want, among other rules. Class actions are very complex and require a number of procedural hurdles in order to certify the class and move forward with litigation. They are an option for attempting to stop the Trump administration’s blatantly unlawful actions, but they take a lot longer, which is entirely the point. There are legitimate arguments to be made that nationwide injunctions tend to be decided quickly and treated like emergencies such that they can be made without complete interrogation of the law and the facts. Requiring all challenges to the Executive branch to go through a class action process would give more time for legal analysis. It would also mean that these laws would go into effect and the people attempting to sue would experience harm before they could be included in the lawsuit. Considering the fact that it doesn’t take much time or legal analysis to see that this birthright citizenship order is blatantly unconstitutional, it is clear that in some cases a drawn out legal procedure isn’t necessary. But according to Amy there is a historical precedent for class action lawsuits from ye olde england, and that historical antecedent must be rigidly interpreted to mean that ONLY class action lawsuits are allowed. God forbid TWO different remedies were to stem from that one historical antecedent that allowed for equity courts to apply judgments to parties not present for the lawsuit. That’s completely untenable.

Amy spends a good portion of the opinion then tearing apart the dissent written by Justice Katanji Brown Jackson. And listen I have, at this point, read literal hundreds of Supreme Court cases over nearly a decade between my research and my law degree, and it is NOTABLE the absolute loathsome disdain with which the supreme court opinions of late have spoken about dissenting justices. Like these justices fucking hate each other and it is PALPABLE. Reminder that Justices Scalia and Ginsburg were good friends despite rarely seeing eye to eye on the bench. That is a thing of the past. Concerningly, Amy makes fun of Justice Jackson’s assertion that it is the court's job to ensure that everyone, including the executive, follow the law. She says “Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.” That’s right, an “imperial judiciary” in which its judgments also apply to the executive. What a radical lunatic stance. Amy goes on to say, confusingly, that while the Executive does have a duty to follow the law, quote “the Judiciary does not have unbridled authority to enforce this obligation.” Basically, sure the president should follow the law but there’s literally no one who’s allowed to make him, according to the majority opinion.

Justices Thomas, Alito, and Kavanaugh wrote concurring opinions. Alito was sure to remind lower courts to be especially stringent with the class action lawsuit process, lest the class action process become LAX and the nationwide injunction “return from the grave.” Kavanaugh wrote separately to also warn against lax class action lawsuits, but also to say that the decision barring nationwide injunctions only applies to district courts. Those cases will eventually be appealed up to the Supreme Court, and the Supreme Court will still have the right to be the ultimate decision-maker when it comes to the legality of executive actions. Basically oh wait no we can still do the nationwide injunctions. Lower courts can’t. Even though the laws and the constitution do not distinguish between the levels of federal courts when granting them jurisdiction over cases in equity. So despite being couched in all this originalist bullshit rhetoric about how the law functioned in 1700s England, what it really is, as laid bare by Kavanaugh’s concurrence, is a power grab by the Supreme Court. No no, WE are the ones who get to effect the laws across the land. NOT the lower courts. But, of course, as the dissent notes, there is nothing to say that the executive branch would heed any sort of functional universal injunction from the Supreme Court. They can now just point to this ruling and say hmmm it says here that universal injunctions aren’t a thing, so even though the supreme court says the order is unconstitutional, we’re going to go ahead and continue to enforce it until every last individual sues us.

Notably, in the opinion and the concurring opinion, the actual issue of birthright citizenship and the egregiously unlawful executive order do not come up. They say no no we are not getting to the merits of the case at this time, we’re simply deciding whether or not universal injunctions are valid. It wasn’t a thing in merry old england in the 1700s when there was a literal king and therefore it cannot be a thing in 2025 United States. Let us not question whether that’s a tenable stance to take, the only thing that matters is strict adherence to what existed in the 1700s and we’re uninterested in dissecting why it might be fucked up to strictly adhere to a 300 year old legal system that literally had a king. No no. Ignore.

Meanwhile the dissent is screaming like hello what the actual fuck? Justices Sotomayor and Jackson both wrote dissents. Let me just quote some highlights from the dissent because they take the court’s opinion, remove it from the shadowy cobwebs of history and hold it up to the light of the present day in a way that lays bare how absolutely appalling the decision is. Sotomayor says typically the government would simply ask the supreme court to get rid of the injunctions, but they didn’t in this case. “Why? The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice. So the Government instead tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone. Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit.

The gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along.”

“The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit. Because I will not be complicit in so grave an attack on our system of law, I dissent.”

She then goes on to point out that there is, it turns out, extensive historical support for universal injunctions or injunctions that affect people outside the parties to a case. Because, as I have said a thousand times, originalism is fucking stupid because you can cherry pick whatever you want from history to support your claims that some legal rule has “extensive legal precedent.” Because, and I know this is going to be fucking shocking, laws change. People change. Society changes. Sometimes for better sometime for worse but while respecting judicial precedent is absolutely paramount to the proper functioning of the legal system, rigidly adhering to a cherry-picked version of monarchical merry old England in the 1700s is actually fucking insane. But even if we ARE going to do that, fine let’s cherry pick our own history, shall we? Sotomayor’s dissent says, quote “Equity courts arose because of the inflexibility of the common-law system; their purpose was to look beyond formal writs and provide remedies where the common law gave inadequate relief. In Blackstone’s words, equity was meant “to give remedy in cases where none before was administered.” Adaptability has always been a hallmark of equity, especially with regard to the scope of its remedies. While common-law courts were “compelled to limit their inquiry to the very parties in the litigation before them,” equity courts could “adjust the rights of all, however numerous,” and “adapt their decrees to all the varieties of circumstances, which may arise, and adjust them to all the peculiar rights of all the parties in interest.” After all, equity’s “constant aim” was “to do complete justice.” Accordingly, equity courts could “decid[e] upon and settl[e] the rights of all persons interested in the subject-matter of the suit, so that the performance of the decree of the Court may be perfectly safe to those, who are compelled to obey it, and also, that future litigation may be prevented.” For equity courts, injunctions were “manifestly indispensable for the purposes of social justice in a great variety of cases.”” End quote. And throughout what I just quoted, Sotomayor is citing the writings of renowned Supreme Court Justice Joseph Story, who lived from 1779 to 1845. So, he should know. Oh also, prior to the Amendments to the Administrative Procedure Act in 1976, sovereign immunity barred most lawsuits against the federal government. So seeing a growth in nationwide injunctions since then is likely due to procedural limitations on the power of the judiciary that has nothing to do with courts of equity. And it is entirely within Congress’ power to give courts the right to oversee cases wherein the federal government is getting sued. Now that litigants can actually hold the federal government accountable for doing illegal shit, yeah there are gonna be more lawsuits and injunctions. That doesn’t mean it’s a “new invention.”

And Sotomayor acknowledges there may be circumstances where a universal injunction really isn’t necessary or could stymie judicial review. In a typical case where the merits are open to reasonable disagreement and there is no claim of extraordinary and imminent irreparable harm, sure perhaps we can question whether a universal injunction is appropriate. But you cannot make a blanket ruling about universal injunctions in this case without addressing the underlying issue, which is an executive order that is so clearly and blatantly unconstitutional and would have profound effects on people immediately if allowed to go into effect, that the government isn’t even attempting to argue its legality, that every court that has examined it has found it blatantly illegal, and that there is no reasonable argument to support it. In those cases, a universal injunction is completely appropriate and supported by centuries of precedent and history.

And let’s talk about the real, immediate effects of this case. Justice Katanji Brown Jackson’s dissent does a good job laying out some of this. She says, quote “courts must have the power to order everyone (including the Executive) to follow the law—full stop. To conclude otherwise is to endorse the creation of a zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes, and where individuals who would otherwise be entitled to the law’s protection become subject to the Executive’s whims instead.” Without nationwide injunctions, any new executive order, no matter how blatantly illegal, cannot be immediately challenged. Instead, the harmed parties will need to initiate a class action lawsuit, a process that can take weeks or months to move through the system and which could limit the broad applicability of any lawsuit. Members of the class must suffer the same harms, so if a law affects different classes of people in different ways, a lawsuit may only apply to certain groups of people. In the meantime, laws will be able to take effect and violate the constitutional protections of everyone not actively named in the class. That means that everyone is going to have to stay on top of class action lawsuit news to understand whether or not they are protected from ongoing litigation or new injunctions. Or they are going to have to hire a lawyer to sue on their own behalf. They will also then need some means of proving to the enforcing authority that they are a member of a class in an ongoing lawsuit that has issued a temporary injunction against enforcing a new law against them individually. What does that look like? A print out of the class certification? A signed note from a judge pinned to your shirt? Having papers doesn’t seem to stop Trump’s gestapo these days, so trying to prove, for example, that you are a citizen because even though your parents aren’t from here you are a member of a class action lawsuit?? It gives the Trump regime further ability to act first and deal with resulting lawsuits later. To violate constitutional rights and force every single individual in this country to assert those rights before a judge in court, if they are even given that opportunity to begin with. That is not supposed to be the role of the judiciary, and it is not the role of the executive, who is at least in theory tasked with ensuring that the laws be faithfully executed.

Instead, however, we will have federal laws that apply in certain places and not in others. A person born in a state that has successfully challenged the birthright citizenship order as to their own citizens who then enters a state where that is not the case, may no longer have the rights guaranteed to citizens. And despite Brett Kavanaugh’s contention that these lawsuits will eventually make it to the Supreme Court where they will make the final determination as to whether an executive action is legal, that is not likely to happen very often. Even in situations where plaintiffs are successful in suing the government, and the government is enjoined from enforcing laws as to those individuals, meaning the government loses their lawsuit at the district court, the government will just leave it at that. They will cut and run. Why would they appeal it? The winner can’t appeal, only the loser can appeal. Why would they appeal something if it only affects those few plaintiffs and leaves the law intact for everyone else? And risk a higher court ruling against them too? Executive orders will now have a blanket effect across the country except in those limited jurisdictions that win against the regime. And the regime will not bother appealing anything, unless they know they have a sure win in the Supreme Court. And proving that you are a member of a specific class action lawsuit while the gestapo is rounding you up will be quite difficult. Just like in pre-Civil War America where your status as a free person didn’t matter if you looked brown, today your status as a citizen and your ability to prove your membership in some class action lawsuit isn’t going to do much to stop you from being targeted.

Justice Jackson’s dissent ends in a kind of warning. Quote: “I have no doubt that, if judges must allow the Executive to act unlawfully in some circumstances, as the Court concludes today, executive lawlessness will flourish, and from there, it is not difficult to predict how this all ends. Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.

Perhaps the degradation of our rule-of-law regime would happen anyway. But this Court’s complicity in the creation of a culture of disdain for lower courts, their rulings, and the law (as they interpret it) will surely hasten the downfall of our governing institutions, enabling our collective demise. At the very least, I lament that the majority is so caught up in minutiae of the Government’s self-serving, finger-pointing arguments that it misses the plot. The majority forgets (or ignores) that “[w]ith all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” Id., at 655 (opinion of R. Jackson, J.). Tragically, the majority also shuns this prescient warning: Even if “[s]uch institutions may be destined to pass away,” “it is the duty of the Court to be last, not first, to give them up.”” End quote.

The court’s ruling gives 30 days from the date of the opinion before the birthright citizenship order will take effect. So babies born after July 27th, 2025, whose parents aren’t permanent residents or citizens, will no longer be considered citizens, unless they are included in a successful lawsuit. The court kicked the case back down to the lower courts to create new injunctions based on that ruling–so injunctions that only apply to the plaintiffs. Casa Inc, the named plaintiff in this case, has refiled the lawsuit as a class action case to apply to everyone in the country, though again that will take weeks to iron out the class status and will be very difficult to create a class action lawsuit that huge and broad. The ACLU has also filed a new class action lawsuit. And the 22 states that sued over the order may get broad protection for people in those specific states if the lower court grants the injunction on a limited basis to those states. Attorney General Pam Bondi asserted that the actual question of birthright citizenship will be before the Supreme Court when its next term begins in October, though the court has made no such promises. Meaning there will almost certainly be a weird three or more month period where babies born to non-citizens or non-permanent residents between July and October in the 28 states not subject to ongoing lawsuits will exist in a weird limbo stateless space until the Supreme Court rules on whether or not the executive order is legal. And even if they do come to the correct conclusion that it is, in fact, unconstitutional, something WE ALL ALREADY KNOW, who knows whether the government will actually follow its ruling? And even IF the government does follow its ruling, which is feeling unlikelier by the day, would those babies born during those limbo months be given retroactive citizenship? That would require bureaucratic processes and the issuing of retroactive birth certificates, if it even happens at all. This ruling lays bare how absolutely chaotic it is to completely do away with nationwide injunctions like this.

Okay so I’m feeling some kinda way about this, and everything feels very bad!! But I do want to offer the argument that some legal scholars are giving as a small consolation prize, I guess. Universal injunctions have helped stop a lot of the worst of Trump’s attempted illegal overreaches up until now. But there are other legal pathways to challenging him. One is class actions as we’ve discussed. There are also what are called “associational lawsuits” which allows associations, including states, to sue on behalf of their members, or citizens in the case of states. This isn’t perfect but it allows for rulings to apply to large groups without each individual having to file their own lawsuit. And then another way to challenge actions of the regime is under the Administrative Procedure Act through what’s known as a “universal vacatur" I don’t actually know how that’s pronounced I’ve never heard it said out loud because it’s a legal remedy mostly only administrative law nerds are aware of. It allows federal courts to throw out rules and actions by agencies if it violates the Administrative Procedure Act, including possibly where it violates the constitutional rights of certain individuals. That of course wouldn’t work to block Trump executive orders, but it could block agencies from implementing rules to follow through with those executive orders. That can get into the technical weeds but suffice it to say that there are alternative legal theories and arguments that can be made, and there are many very smart lawyers at the ACLU and immigrants rights orgs and elsewhere that will come up with creative ways to continue to challenge the actions of this president. Or little tiny merry old england 18th century King, as I guess the majority of the justices would have it.

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