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From the New York Times, I'm Michael Bobaro.
This is The Daily. On Thursday, the Trump administration's effort to abolish birthright citizenship finally ended up in front of the Supreme Court.
Today, my colleague, Adam Liptak, on the White House's unusual legal strategy for defending its plan and what it may mean for the future of presidential power, it's Friday, May 16th.
Adam, always a distinct pleasure to have you on the show.
It's always good to be with you, Michael.
Let's talk about this case that was argued on Thursday before the Supreme Court.
It's genuinely intriguing because it's not directly about President Trump's history -making decision to try to outlaw birthright citizenship.
But it's not not about his effort to ban birthright citizenship.
So just explain that.
It's really about a threshold question.
Three different federal district court judges have taken a look at the order that President Trump signed the day he took office, reporting to do away with birthright citizenship.
That is the constitutional concept, that if you're born in the United States, you're automatically a citizen.
And they found that that executive order was unconstitutional.
They issued an injunction in, saying so, and all three of the injunctions did not only say to the parties in the case that they win and they get the benefit of the court's ruling.
These judges did more.
They issued nationwide injunctions.
They said the birthright citizenship order is unconstitutional everywhere in the country.
They immediately shut it down.
Right. And the administration had a choice.
It could have gone to the Supreme Court on the merits, on the constitutionality, of the birthright citizenship order, the attempt to ban it.
But they did something different.
They went to the court and said, we're ready to concede that the plaintiffs in the case, including 22 states, win and the birthright citizenship order doesn't apply to them and people in their states.
But we think nationwide injunctions are bad, a pernicious problem.
We've been facing a barrage of them, they say, and it's true.
And the Trump administration is asking the court to lay down a rule that says, You can't bind everyone in the country.
You can only bind the parties before you.
Well, before we get to the White House's effort to undercut nationwide injunctions, which seems very central to this case, I want to make sure we establish why the Trump White House would make the kind of concession you just described to 22 states where this was blocked and not try to defend banning birthright citizenship on the merits.
Why do they so quickly bypass that option, do you think?
I have what is only speculation, Michael, but I think this is what lawyers call client management.
That President Trump expected his lawyers to go to the Supreme Court, and, in order to appease him, they went up on an issue they thought they could win nationwide injunctions, which have been criticized by many of the justices, and not on an issue that they probably thought they were sure to lose, which is the almost universal consensus that the Constitution guarantees birthright citizenship.
So, onto this question of injunctions, nationwide injunctions.
Why have they, Adam, been so widely criticized?
I think a lot of people think it's odd that the president of the United States should try to do something, and a single federal judge at the lowest level of the federal judiciary, one of hundreds of such people, should make a decision for the entire nation that could remain in place for years while the case gets litigated up to the Supreme Court.
And then also a second reason, all you need to do is win once and litigants are likely to sue in parts of the country, Massachusetts, San Francisco, where judges are apt to be sympathetic to challenges to Trump administration programs and initiatives.
But the critique of nationwide injunctions is widespread.
It's not particularly ideological.
The Biden administration was not happy about them either.
Okay, so, Adam, take us into the courtroom as the lawyer for the Trump administration makes the argument that these widely criticized injunctions should basically go away and, in so doing, allow President Trump's efforts to outlaw birthright citizenship to remain largely in place.
We will hear argument this morning in case 24A .8 .8 .4 Trump v.
Casa Incorporated and the consolidated cases.
General Sauer. Mr. Chief Justice and may it please the court.
So D. John Sauer, the Solicitor General of the United States, the Justice Department official in charge of arguing before the Supreme Court and who was also President Trump's personal lawyer in the immunity case last year, makes a maximalist argument.
Universal injunctions exceed the judicial power granted in Article 3, which exists only to address the injury to the complaining party.
They transgress the traditional bounds of equitable authority and they create a host of practical problems. He really says federal judges have no business issuing what he calls universal injunctions.
A lot of people call them nationwide injunctions, they're the same thing.
And he says there's no constitutional or historical support for them.
They're a menace. They are a terrible intrusion into executive power.
They create what Justice Powell described as repeated and essentially head -on confrontations between the life tenured and representative branches of government.
And they disrupt the Constitution's careful balancing of the separation of powers.
And he suggests that if somebody is going to lay down a nationwide rule, it ought to be the Supreme Court and not one of many hundreds of federal district court judges.
And as he's making this legal case against injunctions, what is the lawyer for the White House really asking the justices to do here?
I mean, what world does he want to exist if the Supreme Court does away with these injunctions?
So as a general matter, he thinks what should happen is what usually happens.
I mean, nationwide injunctions are an exception.
What usually happens is a lower court will rule in a case and the people suing will win or lose.
The losing party will appeal to an appeals court.
A year will pass. the appeals court will rule.
It'll go to the Supreme Court eventually.
And I think he's basically trying to get the court to come up with a world in which it takes a long time for a challenge to, you know, a major change like birthright citizenship to reach the court and get a final ruling.
And in the meantime, the challenged program remains in place for just about everybody.
Got it. Right, he wants a world where there's greater judicial restraint and deference to the executive when they propose something like this.
So what do the justices have to say to that argument?
So Justice Sonia Sotomayor, first of all before she starts talking about nationwide injunctions, wants to make clear that the administration's position on birthright citizenship is in her view way wrong.
The president is violating not just one, but by my count, four established Supreme Court presidents.
And then she goes on to say, now talking about nationwide injunctions, that it would be an odd thing for the administration to get to say whatever it wants and have only very limited and slow and deliberate judicial review.
She says, for instance, what about a future president who hated guns?
So when a new president orders that because there's so much gun violence going on in the country, I have the right to take away the guns from everyone.
And he sends out the military to seize everyone's guns.
We and the courts have to sit back and wait until every plaintiff whose gun is taken comes into court.
And years later that would reach the Supreme Court and maybe he wins, maybe he loses.
But in the meantime, everyone has their guns taken away.
Would that be okay?
And what does he say to that?
He falls back on two things.
One, that there may be another mechanism like a class action to deal with it.
In appropriate cases, courts have certified class actions on an emergency basis.
We found at least four cases in recent years where that was done.
Another is that it is possible to get to the court pretty fast on the merits.
We've been able to move much more expeditiously.
And Chief Justice Roberts, for instance, said, we took care of the TikTok case in a month.
But a problem with this is that the losing side needs to appeal, and here the government is losing in the birthright citizenship cases.
you know, routinely, profoundly, comprehensively, and yet they're not appealing to the Supreme Court.
Got it. So the justices start to identify a little bit of a contradiction or I guess a judicial problem here, which is that the White House has shown no desire to take this case all the way up to the Supreme Court while they're asking for the quickest remedy in the lower courts to be invalidated.
Right. And then Sauer gets himself into a little bit of trouble.
He says, well, when it gets to the Supreme Court, of course, the Supreme Court will lay down a national ruling and we will abide by it.
And I think Justice Kagan asked them, Well, what about a federal appeals court?
A federal appeals court that has jurisdiction over three, five, six states, what if they rule against you?
Will you follow their ruling at least in those states?
So, you know, let's, let's say that we're an individual person, even, let's say it wasn't a class and goes up and gets a ruling from the Second Circuit, that the EO is illegal.
Does the government commit to not applying its EO in the entire Second Circuit, or does it say no, we can continue to apply the rule as to everybody else in the Second Circuit?
I can't say as to this individual case generally our practices to respect circuit precedent within the circuit but there are – And he says generally we would.
Generally. And then there's a lot of, what is this generally stuff?
Yes, that is generally your practice and I'm asking whether it would be your practice in this case.
I can't answer because it would depend on what the lower court decision said.
And he doesn't back down.
Federal Circuit Courts, he says, are only generally able to tell the administration what to do, and it's one thing to say that a single federal trial judge is over -reached, it's another to say, and repeatedly under pressure, that even a federal appeals court ruling is one the administration will only generally follow.
So why do you think he said it?
I really don't know.
I don't think it's the smart litigation strategy.
But wasn't a candid channeling of the president's view of this?
Yeah. I mean, it's consistent with the president saying that he respects the Supreme Court, he will follow what the Supreme Court says, but otherwise judges ruled against him should be impeached because they're wild radicals.
So, it's a surfacing at the Supreme Court and through a sophisticated lawyer of the administration's very testy relationship with the federal judiciary.
And this is of a piece, Justice Katanji Brown Jackson says, with the administration's general litigation strategy of trying to avoid judicial review by clever legal maneuvers rather than going into court and arguing on the merits and saying, you know, we think we're right, But if we're wrong, tell us.
— Your argument seems to turn our justice system, in my view at least, into a catch -me -if -you -can kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights.
— Rather, the administration has resorted to clever mechanisms like this one, like appealing only half of this case.
And I don't understand how that is remotely consistent with the rule of law.
And that is frustrating not only to Justice Jackson, but seemingly to some conservative members of the court.
Like Justice Gorsuch, who's been harshly critical of nationwide injunctions.
He seems unhappy and repeatedly says, well, how can we get the merits issue before us?
How do you suggest we reach this case on the merits expeditiously?
And the suggestion is, if we could just reach the underlying question, the core question of is birthright citizenship in the Constitution or not.
All of this would go away.
Adam, it's around this time that Justice Kagan weighs in with a very firm theory about why she thinks the president will not ever bring this case, based on the merits, to the legal system, which is basically she thinks they have no shot of winning.
I mean, why would you take the substantive question to us?
You're losing a bunch of cases.
This guy over here, this woman over here, you know, they'll have to be treated as citizens, but nobody else will.
Why would you ever take this case to us?
Right. I mean, she says you keep losing and losing, and if you appeal, you'll lose some more.
And if you appeal to us, you'll lose.
And that's why you're not appealing.
The real brunt of my question is that in a case like this, the Government has no incentive to bring this case to the Supreme Court because it's not really losing anything.
It's losing a lot of individual cases which still allow it to enforce its E .O.
against the vast majority of people to whom it applies.
So what the justices are starting to discern is that the White House is going to do everything in its power to never have the high court issue a firm final ruling on its efforts to end birthright citizenship.
partnership, and although they have taken this case, this side -door case, they're expressing some real frustration with that fear.
They sure are, and it's a little bit surprising because going into the argument, one thing we knew is that many of the justices were deeply skeptical of nationwide injunctions issued by individual federal judges, and so you might have thought the administration would have some luck here, but its general brazen approach to litigation has started to maybe infect its relationship with the Supreme Court.
And not in a good way.
No, I mean, the Solicitor General's office historically has a reputation for independence and candor.
The Solicitor General is sometimes called the 10th justice because they can expect a straight presentation from him without cutting corners and engaging in clever maneuvers.
But there's a sense that the Trump administration goes to court and engages in a kind of gamesmanship of trying to stay one step ahead of the courts rather than giving it the best legal argument they can and accepting the results.
So, the justices weren't happy with Sauer, and by the time he sits down, you had the distinct sense that they would like to solve this problem, this tension between their general dislike of nation -wide injunctions and their feeling that something needed to happen in this case.
And I think they were hoping that when the lawyers on the other side stood up and argued that those lawyers would help them find a middle ground, a limiting principle, some way to reconcile this tension.
And we will review what those lawyers said…after the break.
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We even have one that's solar powered.
So Adam, on the other side of this case were lawyers for those who have won these universal injunctions against Trump's executive order on birthright citizenship, who were trying to defend those injunctions.
So talk to us about their arguments before the justices.
So, two lawyers argued on the other side.
One of them, Jeremy Feigenbaum is Solicitor General of New Jersey and he was arguing on behalf of more than 20 blue states who have won in the lower courts.
Mr. Feigenbaum. Mr. Chief Justice, and may it please the Court.
This Court should deny the emergency application because this injunction was properly designed to ensure that the states would get relief for our own Article III injuries, as we suffer significant pocketbook and sovereign harms from implementation of this Executive Order." And he quickly takes on a different tone with the justices.
The U .S. prefers alternative approaches for granting that relief, but its approach would require citizenship to vary based on the state in which you're born, or even turn on or off when someone crosses state lines, raising serious and unanswered administrability questions, not just for the federal government, but also for the states.
If Sauer was maximalist, Feigenbaum was relentlessly reasonable, acknowledging that nationwide injunctions can be problematic.
The states, who regularly come before this court as plaintiff and defendant alike, agree that nationwide relief can be reserved for narrow circumstances.
But he said in this case, it's really warranted, particularly because states are suing and And if they are going to get effective relief from a court, it needs to be nationwide.
And he demonstrates this by talking about practicalities.
New Jersey provides services to citizens and needs to figure out who is a citizen and who's not.
And we have in New Jersey six thousand babies born out of state every year when they come into the state and they need benefits, the Boyle Declaration for Mass Aging.
And thousands of people move to New Jersey every year.
They come into our state, they need benefits.
We have to do citizenship verifications, which is a burden for us.
That's for you in New Jersey.
And under a system of birthright citizenship, which applies in 22 states, but doesn't in others, it's really hard to know how that works in practice.
So 23 states are going to have babies who were born somewhere else without a birth certificate that you're now, if they move into your state, going to have to do checking on you.
And that comes to the United States as alternative, Justice Sotomayor, which is they say, OK, maybe their citizenship turns on when they enter New Jersey, maybe for some purposes, maybe for all purposes, depending on which sentence you're looking at.
So if a child is born in Kansas and under the Trump executive order is not a citizen, but moves to New Jersey, becomes a citizen the moment he or she passes the state border, Because it's not about what state you're born in, it's about whether you're born in the United States or not.
It will undermine the administration of our benefits program.
So individuals will move in when they were born, they were treated as non -citizens, they didn't get Social Security numbers because they wouldn't have been eligible for the enumeration at birth program in their states and they're going to arrive and they're going to seek benefits that we administer.
But federal law requires that they have Social Security numbers for the administration of those benefits.
And you have to figure out how to get the kid a Social Security number, which they didn't have before.
For TANF, for Medicaid, and so on.
So you're going to need to have Social Security numbers.
They're going to arrive without them, even though they were under this court's precedent citizens, who should have been in the enumeration at birth program, who should have had Social Security numbers, and it's going to be a burden on us.
And it just becomes an unadministrable jumble.
And that seemed to resonate with the justices that this may be a case where if you're going to have nationwide injunctions, this is the case you want to do it in.
So, basically, New Jersey's Solicitor General is saying, if, justices, you don't like nationwide injunctions, I am not here to tell you that they're wonderful.
But I am here to tell you that if you don't let a universal injunction survive in this specific case, it's going to create a tremendous amount of mayhem across the country.
Right. And how compelled were the justices by this argument?
You know, I guess I would say they were kind of all over the map.
Some of them seemed to be fully on board. Some of them continued to be skeptical, notably Justice Alito, who, while he said he respected federal district court judges, didn't seem to want to empower them to issue these kinds of injunctions.
All Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right and I can do whatever I want.
Now, on a multi -member appellate court, that is restrained by one's colleagues.
But the trial judge sitting me in the trial judge's courtroom is the monarch of that record. And some of them, Justice Gorsuch among them, still seem to be itching to hear about the merits, to hear about the constitutionality of nationwide injunctions.
How do we get to the merits fast?
This court could set supplemental briefing on the merits by an order tomorrow if it wished.
Because you wouldn't have to deal with whether an injunction is good, bad, appropriate or not if you could just rule on the constitutionality of birthright seditionship itself, because whatever else a Supreme Court ruling applies to the whole nation right you don't need a universal injunction or even a debate about them if the Supreme Court is asked whether the president's executive order itself constitutional exactly right thank you counsel the case is submitted so Adam given the reality that the Trump administration is not bringing the merit -based case to the court instead it's bringing this case
that tries to likely to rule in this case and how quickly.
I mean, clearly, they're skeptical of the White House's position here.
They're equally skeptical to some degree of nationwide injunctions.
So where do you think they're gonna land?
You know, Michael, I'm ordinarily not shy about making predictions.
Not at all. I think this one is likely to be a little splintered if I had to bet, but I wouldn't do it very enthusiastically.
I think the court will find a way to say that this particular injunction is okay while nationwide injunctions generally are problematic.
I also think there's at least a 20 % chance that they wake up and say, you know, we really can't do this by half measures.
We have to get to the constitutional issue somehow and to invite further briefing or or maybe even re -argument on the core question in the case of the constitutionality in birthright citizenship.
That's not very easy to achieve as a procedural matter, but at the end of the day, the court can do what it likes.
In other words, there's some chance that they might not rule at all and ask for the entire enchilada instead.
I think there's a chance of that.
I think that would be attractive to a lot of them because the outcome of that question, I'm much less reticent to say if the question of the Constitutionally in Birthright Citizenship reaches this court, there will be a lopsided ruling against the Trump administration.
Adam, assuming that the justices don't seek the bigger merit -based case to come before them, but they rule in a way that narrowly upholds the injunction in this case, what will that mean for the Trump agenda to have lost this bid to strike down basically all nationwide injunctions.
I think the Trump administration could lose this case on that ground.
So the nationwide injunction against the birthright citizenship order would stay in place and still achieve a substantial victory.
Because I could imagine a decision where the court says, we're going to let this one go, But as a general matter, we don't like them lower courts, you can't use them in the following ways.
And so they take a hit on this one.
But in the process achieve guidance from the Supreme Court that will be very favorable to their agenda.
Right, because nationwide injunctions curb the power of this really powerful president.
And if in general, the courts starts to disfavor favor those injunctions, then this presidency grows even more powerful than it already is.
And that would mean that the litigation strategy, which a lot of people have been skeptical about, who have wondered why the administration went up on this issue, on this vehicle, which is not particularly favorable to them on their argument about an issue on injunctions, might still turn out to be a pretty good idea.
Because maybe they get language from the Court that will help them in many other cases, and allow President Trump to pursue what is the most transformative legal agenda of any president since at least FDR. Well Adam, thank you very much, we appreciate it.
Thank you, Michael.
We'll be right back.
Here's what else you need, to another day.
But we're in very serious negotiations with Iran for long -term peace, and if we do that, it'll be fantastic.
On Thursday, President Trump said that his staff was nearing a nuclear deal with Iran, a major foreign policy goal of his second term.
Negotiators from the United States and Iran have held four rounds of talks, but so far the exact details of any potential deal remain unknown.
We've been strong. I want them to succeed.
I want them to end up being a great country, frankly.
But they can't have a nuclear weapon.
That's the only thing.
It's very simple. It's not like that.
And the retail giant, Walmart, said that President Trump's reciprocal tariffs would force it to raise prices on a wide range of goods starting later this month, even after President Trump rolled back his biggest tariffs.
In an interview with CNBC, the company's Chief Financial Officer said that it was now impossible for Walmart to keep prices at their current rates.
We've not seen a period where you've had prices go up this high this quickly.
We're well equipped and experienced in dealing with elasticities or price increases that are going up two or 3%, but not 30%.
so understanding Today's episode was produced by Mujzadeh, Alex Stern, Will Reed, Eric Krupke and Michael Simon Johnson with help from Alexandra Lee Young.
It was edited by Liz O 'Baylen and Devon Taylor.
Contains original music by Pat McCusker and Marian Lozano and was engineered by Chris Wood.
Our theme music is by Jim Brudenburg and Ben Lansford, of Wonderly.
That's it for The Daily.
I'm Michael Bobaro.
See you on Monday.
