Federal Court's Injunction Against Birthright Citizenship Executive Order Can't Have Country-Wide Effect : US Supreme Court

The Supreme Court of the United States' decision to partially stay the District Court's 'universal injunction' against the USA President Donald Trump's Executive Order No. 14160 ending birthright citizenship has sent Indian immigrants or those on temporary visas into a state of limbo. 

In doing so, the Supreme Court observed that federal courts do not have the power to grant universal injunctions over-reaching the Executive's authority. However, the decision states that the Executive Order shall not come into effect, "until 30 days after the date" of the court's opinion and the lower courts will continue to deal with the matter.

As soon as Trump was sworn in as the US President, for the second time, on January 20 this year, he issued executive orders, including Executive Order No. 14160, ending the birthright citizenship granted to those born on US soil, with effect from February 20. It will not affect US citizen, Green card holder, or member of the US military. Neither will it affect children born before the effective date of the order.

Three separate suits were filed by 7 individuals, 2 immigrant rights organisations and 22 States challenging the Executive Order as violating the 14th Amendment to the US Constitution. In each case, the District Court granted universal injunctions barring officials from applying the order to anyone. It held that the Executive Order, which attempts to alter the Constitution's express conferral of citizenship on all who are born in this Nation, likely violates the Constitution.

Thereafter, the Court of Appeal denied the Government's request for a stay, against which emergency applications seeking a partial stay were filed.

Universal Injuctions likely exceed equitable authority: Majority

By a 6-3 ruling on June 27, the US Supreme Court in TRUMP v. CASA held that "universal injunctions likely exceed the equitable authority that Congress has given to federal courts". 

In the majority judgment authored by Justice Amy Coney Barrett and joined by Chief Justice John G. Roberts, Justice Clarence Thomas, Justice Samuel A Alito, Justice Neil M. Gorsuch and Justice Brett M. Kavanaugh, the Court observed that federal courts do not exercise general oversight of the Executive Branch. It said that federal courts only "resolve cases and controversies consistent with the authority Congress has given them". It said:

"When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too. The Government's applications for partial stays of the preliminary injunctions are granted, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue."

It further said that a universal injunction can be justified only as an exercise of equitable authority, yet Congress has granted federal courts no such power. 

It said that the lower courts shall move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport with this rule and otherwise comply with principles of equity.

"The injunctions are also stayed to the extent that they prohibit executive agencies from developing and issuing public guidance about the Executive's plans to implement the Executive Order," it added.

The majority relies upon the practice of the High Court of Chancery in England, that the remedial power of the federal courts is limited to granting “complete relief ” to the parties. Referring to the English judgment, the majority observed that neither universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding. 

Countering the decision rendered by the minority bench, the majority said:

"Faced with this timeline, the principal dissent accuses us of “misunderstand[ing] the nature of equity” as being “fr[ozen] in amber . . . at the time of the Judiciary Act.” Post, at 29 (opinion of SOTOMAYOR, J.). Not so. We said it before, see supra, at 5, and say it again: “[E]quity is flexible.”...At the same time, its “flexibility is confined within the broad boundaries of traditional equitable relief.” A modern device need not have an exact historical match, but under Grupo Mexicano, it must have a founding-era antecedent. And neither the universal injunction nor a sufficiently comparable predecessor was available from a court of equity at the time of our country's inception. Because the universal injunction lacks a historical pedigree, it falls outside the bounds of a federal court's equitable authority under the Judiciary Act".

Dissenting Opinions

The minority ruling led by Justice Sonia Maria Sotomayor, joined by Justice Ketanji Brown Jackson and Justice Elena Kagan, has sharply dissented against the majority's opinion.

Justice Sotomayor's fierce dissent warns of the threat that looms over the constitutional rights of Americans. She says:

"No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from lawabiding citizens or prevent people of certain faiths from gathering to worship. 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."

In another scathing dissent, Justice Jackson held that the decision is a "seismic shock" to that foundational norm and has warned of the "disaster" that "looms" over the interpretation of constitutional theory. She has said that the Court is complicit in the creation of a culture of "disdain" for lower courts, and such a ruling will hasten the downfall of governing institutions, enabling their collective demise.

"Allowing the Executive to violate the law at its prerogative with respect to anyone who has not yet sued carves out a huge exception—a gash in the basic tenets of our founding charter that could turn out to be a mortal wound. What is more, to me, requiring courts themselves to provide the dagger (by giving their imprimatur to the Executive Branch's intermittent lawlessness) makes a mockery of the Judiciary's solemn duty to safeguard the rule of law", she wrote.

She has held:

"The majority now does what none of the lower courts that have considered Executive Order No. 14160 would do: It allows the Executive's constitutionally dubious mandate to go into effect with respect to anyone who is not already a plaintiff in one of the existing legal actions. Notably, the Court has not determined that any of the lower courts were wrong about their conclusion that the executive order likely violates the Constitution—the Executive has not asked us to rule on the lawfulness of Executive Order No. 14160. But the majority allows the Executive to implement this order (which lower courts have so far uniformly declared likely unconstitutional) nonetheless."

"Make no mistake: Today's ruling allows the Executive to deny people rights that the Founders plainly wrote into our Constitution, so long as those individuals have not found a lawyer or asked a court in a particular manner to have their rights protected. This perverse burden-shifting cannot coexist with the rule of law. In essence, the Court has now shoved lower court judges out of the way in cases where executive action is challenged, and has gifted the Executive with the prerogative of sometimes disregarding the law. As a result, the Judiciary—the one institution that is solely responsible for ensuring our Republic endures as a Nation of laws—has put both our legal system, and our system of government, in grave jeopardy."

She adds: "As I understand the concern, in this clash over the respective powers of two coordinate branches of Government, the majority sees a power grab—but not by a presumably lawless Executive choosing to act in a manner that flouts the plain text of the Constitution. Instead, to the majority, the power-hungry actors are . . . (wait for it) . . . the district courts. See ante, at 1 (admonishing district courts for daring to “asser[t] the power” to order the Executive to follow the law universally). In the majority's view, federal courts only have the power to “afford the plaintiff complete relief ” in the cases brought before them; they can do nothing more. Ante, at 16. And the majority thinks a so-called universal injunction—that is, a court order requiring the Executive to follow the law across the board and not just with respect to the plaintiff—“grant[s] relief to nonparties.” See ante, at 6– 8. Therefore, the majority reasons, issuing such orders exceeds district courts' authority." 

She remarked:

"A Martian arriving here from another planet would see these circumstances and surely wonder: “what good is the Constitution, then?” What, really, is this system for protecting people's rights if it amounts to this—placing the onus on the victims to invoke the law's protection, and rendering the very institution that has the singular function of ensuring compliance with the Constitution powerless to prevent the Government from violating it? “Those things Americans call constitutional rights seem hardly worth the paper they are written on!."

The judgment, however, does not address whether the Executive Order violates the 14th Amendment.

What is the executive order?

As soon as Trump was sworn in as the US President, for the second time, on January 20 this year, he issued executive orders, including Executive Order No. 14160, ending the birthright citizenship granted to those born on US soil, with effect from February 20. It will not affect US citizen, Green card holder, or member of the US military. Neither will it affect children born before the effective date of the order. 

Added in 1868 to the 14th Amendment of the US Constitution, Section 1 reads as: "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.” Since the amendment had happened in the aftermath of a Civil War where the issue of slavery was at the heart of the conflict, the idea of the amendment was to grant equal civil and legal rights to Black citizens.

The US Supreme Court in 1989's United States v Wong Kim Ark, by a majority of 6:2, recognised the principle of "jus soli" (the right of the soil). In this case, a child born to Chinese immigrants in San Francisco was denied citizenship on the grounds that Chinese immigrants couldn't claim citizenship pursuant to the Chinese Exclusion Act. The Court observed that since Wong was born in the US, he would benefit from the birthright citizenship and therefore, he was an American citizen by birth.

The birthright citizenship clause was then codified under Section 1401 of the US Code.

Trump's executive order plays around with the interpretation of "subject to the jurisdiction thereof". It says that the 14th Amendment was never intended to be interpreted in a way that the citizenship universally applies to everyone born within the US. 

It says: "But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.” Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment's text."

It has been said that among the categories of individuals born in the US and not subject to the jurisdiction thereof, the privileges of US citizenship do not automatically extend to persons born in the US:

(1) when that person's mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person's birth, or

(2) when that person's mother's presence in the United States at the time of said person's birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person's birth.

What does the ruling mean for Indians living in America?

Indian-origin persons living in America have significantly benefited from the birthright citizenship. Nearly 5.3 million people of Indian origin, including 3.5 million immigrants and 1.8 million U.S.-born Indian Americans, identify as American as of 2023, the second largest Asian group after Chinese-Americans, as reported by the US Census Bureau and Pew Research Centre.

Out of 5.3 million, 66% are Indian immigrants and majority of the Indian-American population is spread in States like California, Texas, New Jersey, New York and Illinois. Many of them are on temporary H1B or L1 visas or waiting for their green cards for years. The data further states that 70% of the Indian adults are married compared to the overall marital status of Asians living in the US. 

Whereas, approprimately 2,20,000 Indians have been illegally living in the US as per a 2022 report published by the US Department of Homeland Security. 

Reportedly, the Executive Order has already caused panic amongst pregnant Indian women in America. It has been reported that a sudden rush has been witnessed by doctors of Indian women asking for a pre-term delivery before February 20. 

The 1868 amendment is 127 years old and superseded the US Supreme Court's infamous Dred Scott v Sanford (1857) decision, which held that African slaves of American descendants were never intended to become American citizens.

America, considered a leading democracy of the world, often tends to go back to its regressive history, like how it did so in 2022 by overturning 50-year-old Roe v. Wade protecting abortion rights. It won't be surprising if it yet again adopts retrogression over progressive realisation of rights.