Chaos reigned at the Court—and a dose of judicial supremacy to boot.
Attending oral argument last week in the case touching on birthright citizenship pending before the Supreme Court, I observed a combination of confusion, omissions, and outright lies from some of the justices. As the lawyer for one of the amici, I witnessed the Court address the propriety of the nationwide, universal injunctions that have been issued by several district court judges blocking the execution of President Trump’s day-one executive order on birthright citizenship.
Let’s begin with the lies.
Early in the argument, Justice Sotomayor unequivocally stated that the Court had held 127 years ago that anyone born on U.S. soil is a citizen, and repeated that holding in three other cases since. That is false.
The Supreme Court has never held that the children born on U.S. soil to temporary visitors or illegal aliens are citizens. The Wong Kim Ark case to which she was referring explicitly dealt only with a child born to parents who were lawfully and permanently domiciled in the United States—and the word “domicile” or one of its derivatives was repeated nearly 30 times throughout that opinion. Any language in the opinion beyond that is not part of the holding, but is rather non-binding dicta. The same is true with the passing references in the three other cases she cited—they are pure dicta. So her claim that the Court has already issued holdings that are contrary to the president’s executive order is simply untrue.
Several legal scholars have recently made the same claims, and Justice Sotomayor may have been parroting them. Yet until President Trump raised the issue in his first campaign for the presidency, almost all legal scholars writing in this area candidly acknowledged that Wong Kim Ark did not settle the question. Such is the hostility to all things Trump that the prior honest assessments have given way to a certitude that is simply not accurate.
Now for the confusion. Justice Kavanaugh queried U.S. Solicitor General John Sauer whether excluding from birthright citizenship the children born to temporary visitors or those illegally present in the United States would be unworkable. “What are the hospitals to do,” he asked, or the states when registering vital statistics about births? Apparently Justice Kavanaugh is unaware that most countries in the world, including almost all the countries we once described as “First World,” don’t seem to have any difficulty noting on a birth certificate whether the parents were citizens or merely visitors at the time of birth.
And he is apparently likewise unaware that until 1966, the application for an American passport, which could only be obtained by citizens, similarly inquired about the status of one’s parents at birth. Justice Kavanaugh’s treatment of this as an insurmountable problem is simply not compatible with the practice in the rest of the world, or even by our own government for a full century after the adoption of the Citizenship Clause of the 14th Amendment.
Then there is the omission. I was quite frankly surprised that none of the justices asked about a foundational requirement for preliminary injunctions. Long-standing black letter law requires that one must have an irreparable injury in order to obtain interim relief by way of a temporary restraining order or a preliminary injunction. Granted, that requirement goes to the validity of any preliminary injunction, not merely the universal injunctions that were the topic of the day. But it seems to me that the broader issue necessarily falls even if a narrow injunction could not be sustained.
So what is “irreparable” injury? It is an injury that cannot be remedied after the fact. It almost never includes things for which money damages (plus interest) can make the person whole. Take the typical wrongful discharge employment case. Preliminary relief is almost never permitted, because if the claimant succeeds, back pay with interest would fully compensate him. The asserted injuries are therefore not irreparable.
So too with the birthright citizenship cases. If, as Justices Sotomayor, Kagan, and Jackson expressed with such certainty, the plaintiffs will ultimately prevail, the remedy would be that their citizenship be recognized. If, in the interim, they lost out on some welfare benefits that are available only to citizens, retroactive payment of those benefits (with interest) would make them whole. Therefore, in neither case is the harm “irreparable.” Basic injunction law 101 indicates that any preliminary injunction, not just a universal one, is not proper.
One can imagine an irreparable injury that might arise if the government moved to deport the illegally present parents and their not-yet-recognized-as-citizens children, but such speculative future harms are also not proper grounds for a preliminary injunction until the harm becomes imminent. At that point—and only at that point—would a preliminary injunction or temporary restraining order be proper. But no such harm has been alleged, or is evident, in the cases as they presently stand.
Finally, there was a strong whiff of judicial supremacy evident in some of the questions. Justice Barrett, for example, asked whether a ruling by a court of appeals—say, the Second Circuit in New York—would bind the government in their dealings with individuals who were not parties in a particular case. Solicitor General Sauer, quite appropriately, would not give the definitive answer she was seeking. One suspects that was because he recognized that such an answer would replace judicial review in particular cases with judicial supremacy.
His intuition on that score finds fulsome support in the views of several notable former presidents, including Abraham Lincoln, Andrew Jackson, and Thomas Jefferson. Here’s what Lincoln said about it in the context of the Supreme Court’s Dred Scott decision, one of the most notorious—and notoriously wrong—decisions ever issued by the Court. He agreed that the decision was binding on the parties in that case, but added that if we were to allow “the decision to stand as settling the law for all time, we should, to that extent, cease to be our own rulers, having practically resigned our Government into the hands of that [dripping with irony] eminent tribunal.”
Lincoln’s view reflected the basic constitutional premise that the judiciary is but one of three co-equal branches. Just as an erroneous view of birthright citizenship has seeped into our political psyche, so too has an erroneous view of judicial supremacy. We should applaud President Trump and those in his administration who are pressing to restore the original meaning of the Constitution on these questions.
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