WASHINGTON — Trump administration lawyers sent the Supreme Court an emergency appeal this week with a “modest” procedural request, not to uphold new limits on birthright citizenship but rather to narrow the scope of rulings that blocked the limits from taking effect.
It’s a move that surprised and puzzled many legal experts.
They questioned the practicality and the fairness of having a citizenship rule that applied at least temporarily in some parts of the country but not others.
“This is a terrible case to raise this issue,” said University of Virginia law professor Amanda Frost. “Without a nationwide injunction, it would be chaos.”
She said pregnant women might have to cross state borders to ensure their babies were registered as citizens at birth. Judges might have to decide case by case on whether those birth registrations are proper.
Shortly after President Trump issued his executive order proposing to end birthright citizenship, three judges — in Maryland, Massachusetts and Washington state — declared the change unconstitutional nationwide. They ruled in cases brought on behalf of 22 states, including California, and several groups that represent immigrants.
“If ever a universal injunction makes sense, it’s in a case like this,” George Mason University saw professor Ilya Somin wrote in a blog post. “Nationwide lawbreaking by the federal government requires a nationwide remedy. And that’s especially true if the illegality affects the rights of large numbers of people, many of whom could not easily or quickly bring individual suits to challenge it.”
But Trump administration lawyers argued that district judges should not be allowed to issue rulings that apply nationwide. And they said the court should act now to rein in these judges.
If the justices were to agree, it could deny citizenship in much of the nation to children whose mothers were in the country without legal status.
“Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere,” wrote acting Solicitor Gen. Sarah M. Harris. “The sooner universal injunctions are eliminated root and branch, the better.”
The justices, however, signaled they are not ready to move quickly. They set April 4 as a deadline for responses from the lawyers who won the rulings blocking Trump’s order on birthright citizenship.
In recent years, several justices have questioned the power of a single judge to hand down a ruling that applies nationwide.
Sometimes judges seek to “govern the whole nation from their courtrooms,” Justice Neil M. Gorsuch said last year.
Democrats complained when judges in Texas and Louisiana issued nationwide rulings to block Biden administration regulations.
Two years ago, a conservative judge in Amarillo, Texas, ordered a nationwide ban on abortion pills. The Supreme Court blocked his order and then overturned it entirely on the grounds that the antiabortion plaintiffs did not have standing to sue.