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Bye-Bye Nationwide Injunctions, Hello State-By-State Showdown

The Left Must Reinvent Its Modus Operandi and Fight Local Battles One Court at a Time

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On Friday, the United States Supreme Court sided with the Trump administration in an emergency request, ruling that three federal district courts had exceeded their authority by issuing nationwide injunctions that blocked the enforcement of President Trump's executive order on birthright citizenship. The decision sent shockwaves through the legal community, delivering a clear message to lower courts: Nationwide injunctions, and by extension, the lower courts, have gone too far.

The 6–3 conservative majority opinion was explicit in its intent. Writing for the Court, Justice Amy Coney Barrett laid out the most significant element of the ruling: federal district courts were never granted authority by Congress to issue nationwide injunctions. The Judiciary Act empowers them to adjudicate cases and grant relief to plaintiffs, not to block executive actions for the entire nation unilaterally. Barrett emphasized that this overreach violated the separation of powers and warned that federal judges are just as bound by the Constitution as the executive branch.

Justice Ketanji Brown Jackson had said in her dissent: "Everyone, from the president on down, is bound by law ....by duty and nature, federal courts say what the law is (if there is a genuine dispute), and require those who are subject to the law to conform their behavior to what the law requires. This is the essence of the rule of law."

Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson (standing); Sonia Sotomayor, Clarence Thomas, John Roberts, Samuel Alito, and Elena Kagan (seated). Screenshot from Official Court Portrait, 2024.

Barrett, in a particularly pointed rebuke, criticized Jackson's viewpoint by stating that while the president must abide by the rule of law, so must the judges who interpret it. "Justice Jackson decries an imperial executive while embracing an imperial judiciary. No one disputes that the executive has a duty to follow the law. But the judiciary does not have unbridled authority to enforce this obligation — in fact, sometimes the law prohibits the judiciary from doing so."

The message was unmistakable—federal judges must stop acting as national policymakers.

Anticipating that liberal groups would attempt to bypass this ruling, perhaps by exploiting procedural loopholes, Justices Clarence Thomas and Samuel Alito issued further caution. They warned lower courts not to abuse the certification of nationwide class actions as a substitute for injunctions. Class certification allows attorneys to group individuals allegedly harmed by an executive order across multiple states into a single case. If a sympathetic judge grants relief, it has the same effect as a nationwide injunction. Justice Thomas made it clear that such tactics would violate the spirit of the ruling and promised that the Supreme Court stands ready to intervene again if necessary.

Justice Brett Kavanaugh added that only the Supreme Court, with a majority of at least five, can issue a ruling with nationwide effect on an executive order. During oral arguments on May 15, Chief Justice John Roberts explained that in recent years, the Court has adjusted its approach to handling emergency appeals. Plaintiffs who believe an executive order is unlawful no longer need to rely on district court injunctions; they can file emergency motions directly with the Supreme Court, which now considers such requests on an expedited basis.

The case is packed with guidance for lawyers and lower court judges: nationwide injunctions are to be used sparingly, if at all. Still, aggressive attorneys are unlikely to give up this powerful legal tool. If anything, the resistance movement just received new instructions on how to adapt.

At the center of this decision is President Trump's executive order on birthright citizenship. The Supreme Court did not rule on the merits of the order itself and has not yet scheduled a hearing to address it. At a press conference Friday, Attorney General Pam Bondi expressed hope that the Court would take up the case in its October session, but as of now, it is not on the docket.

So how will the Supreme Court's limitation on nationwide injunctions affect the birthright citizenship fight, and what paths remain for those hoping to block the order?

The ruling temporarily pauses enforcement of Trump's order for 30 days. In that window, it remains blocked in the three states that initiated legal action—New Jersey, Washington, and New Hampshire. Babies born in those states will continue to receive automatic citizenship for the time being.

The most immediate move for opposing attorneys would be to persuade attorneys general in the 19 states that filed amicus briefs supporting New Jersey and Washington to initiate their own lawsuits. If they succeed, federal judges in those states may grant relief within their jurisdictions, thereby extending protections to a larger part of the country.

However, this strategy has limits. Twenty-eight states not only declined to support the challenge but actively backed the Trump administration. Attorneys general in those states are unlikely to file suit. That leaves plaintiffs' attorneys with a narrow and complex path: to find non-immigrant parents in the remaining states who can argue they are personally affected and persuade a judge to certify them as a class. This is a risky move. The Supreme Court warned that class certification must not be used in lieu of injunctions. If judges defy this, another rebuke from the Court is inevitable.

Meanwhile, the Trump administration, emboldened by Friday's victory, is preparing to challenge existing lawsuits and any new lawsuits immediately. Their strategy will be to ensure that any favorable rulings for the plaintiffs are swiftly appealed. If a liberal appeals court grants relief, the administration will bring the case back to the Supreme Court. Similarly, if plaintiffs file in a red state and the resulting appeals court rules in favor of Trump, the presence of conflicting decisions among circuits will force the Supreme Court to step in.

But all of this will take time. In the meantime, immigrants who are expecting children and want to ensure their newborn receives U.S. citizenship need only relocate temporarily to New Jersey, Washington, or New Hampshire. The law remains on their side in those jurisdictions.

The Supreme Court has thrown a wrench into the machinery of judicial resistance. Nationwide injunctions, once the favored tool of activist judges and trial lawyers, are now effectively neutered. But for enterprising lawyers and activist judges, the legal fight is not over. The battlefield has just shifted.

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