What To Know About the Supreme Court Case on Birthright Citizenship and Nationwide Injunctions

Last month, the U.S. Supreme Court took the significant step of scheduling an oral argument outside of the regular term. It did so to consider the following, highly controversial question: Did three federal courts err in granting nationwide injunctions to stop enforcement of President Donald Trump’s executive order attempting to end birthright citizenship?

On January 20, 2025, Trump issued an executive order titled “Protecting the Meaning and Value of American Citizenship.” The order tried to deny birthright citizenship to countless Americans, flouting both the 14th Amendment and more than a century of Supreme Court precedent. More specifically, it directed the federal government to cease providing “documents recognizing United States citizenship.” As executive orders are limited in scope and can neither change the Constitution nor override a Supreme Court decision, the order was subject to swift legal challenge. Federal district court judges in Massachusetts, Maryland, and Washington issued nationwide injunctions blocking its enforcement.

The Trump administration then challenged these injunctions before three separate circuit courts, with each appellate court upholding the respective injunction. Trump proceeded to appeal these cases to the Supreme Court, requesting that the nationwide injunctions be stayed and that the executive order only be paused for the parties who sued. The court did not immediately respond to his request, instead scheduling oral argument for May 15.

At the time of writing, all existing nationwide injunctions remain in effect and the executive order cannot be enforced. If the justices side with the Trump administration, however, that will all change.

Importantly, this case does not concern the underlying substance of the birthright citizenship order. Court watchers should not anticipate that the ruling will address the constitutionality of President Trump’s executive order or even hint at the justices’ thoughts on said order. While certain justices may issue opinions hinting at their views, the meat of this case concerns nationwide injunctions, not birthright citizenship.

The question of whether or not nationwide injunctions should be allowed is one several justices have been itching to answer. In his dissent in Trump v. Hawaii, Justice Clarence Thomas wrote of nationwide injunctions: “If their popularity continues, this Court must address their legality.” Eight years later, the time to “address their legality” is apparently now.

What is a nationwide injunction?

Before delving into the controversy surrounding nationwide injunctions, it is useful to begin with a definition. Nationwide injunctions are a unique legal remedy that halts enforcement of a government policy, law, or regulation. A typical injunction only applies to the parties in the lawsuit or in a given jurisdiction, whereas a nationwide injunction applies to everyone in the country.

Judges are often reluctant to issue nationwide injunctions, as they limit the conduct of another branch of government. Courts are understandably wary of getting into separation-of-powers disputes, but they will issue a nationwide injunction when necessary to uphold the Constitution and rule of law. Neither the Constitution nor any federal law provides for these injunctions. However, courts have long acknowledged their existence.

Nationwide injunctions fill an important gap when it comes to legal remedies. Nationwide class actions used to function very similarly to nationwide injunctions, but recent Supreme Court decisions have limited plaintiffs’ ability to bring class action suits. Per Georgetown Law professor Steve Vladeck, “it doesn’t strike me as entirely coincidental that the rise in nationwide injunctions over the past decade came right on the heels of a series of Supreme Court decisions that made it much harder for courts to certify nationwide classes of plaintiffs.”

Notably, the Trump administration is no stranger to a nationwide injunction. Per an analysis from Harvard Law Review, “Just over half (64) of the injunctions issued since 1963 were issued against Trump administration policies.” During the first Trump administration, a staggering 64 injunctions were issued against his policies, compared with 14 injunctions against President Joe Biden, 12 injunctions against President Barack Obama, and six injunctions against President George W. Bush. In just the first two months of his second term, Trump’s policies were subject to 17 nationwide injunctions, nearly tying the number of nationwide injunctions imposed against Obama and Bush over a 16-year period.

What are the pros and cons of nationwide injunctions?

Nationwide injunctions have long been controversial. They are best described using the age-old lawyer joke: “You love yours, but you hate other people’s.”

On the one hand, nationwide injunctions increase uniformity and ensure that Americans’ rights do not fundamentally differ based on where they live or whether or not they brought a court case. To use this case as an example, without a nationwide injunction, “[a]n infant would be a United States citizen and full member of society if born in New Jersey, but a deportable noncitizen if born in Tennessee.” Such radically different outcomes are extremely concerning, particularly when dearly held constitutional rights such as birthright citizenship are at stake.

Nationwide injunctions also ensure that plaintiffs do not need to challenge an illegal or unconstitutional policy in every district court in order for it to be blocked. Court cases are lengthy and expensive, and requiring plaintiffs to file suit in every district court would allow illegal or unconstitutional conduct to go unchecked. It can take years for the Supreme Court to hear a case after it is filed, meaning that people could lose out on their constitutional rights simply because of the time and cost it takes to appeal a case. Finally, nationwide injunctions guard against administrative confusion. If the injunction only applies to the parties who brought the case, authorities will have to search court records to determine whether or not a child is covered by a given lawsuit. It is not hard to see how quickly that would get out of hand.

On the other hand, plaintiffs often “judge shop” to get their case before a sympathetic judge who is more likely to grant a nationwide injunction. This is the core problem with nationwide injunctions: Plaintiffs try to maneuver their way into a favorable forum in order to sidestep the other branches of government. A compelling recent example of this maneuvering concerns Judge Matthew Kacsmaryk—a Trump appointee with a well-known anti-abortion stance. As Kacsmaryk is the only judge in the Amarillo Division of the Northern District of Texas, any case filed there will be decided by him.

Since his appointment to the bench in 2019, Kacsmaryk’s court has become a favorite forum for conservative plaintiffs seeking broad decisions that will influence U.S. policy. In 2023, an anti-choice group sued the U.S. Food and Drug Administration (FDA) over their approval of the abortion medication mifepristone. Kacsmaryk granted a nationwide injunction temporarily blocking access to mifepristone, throwing the health care system into chaos. Later that same day, another judge in Washington state granted a contrary injunction, preventing the FDA from taking any action to limit access to mifepristone in 17 states and the District of Columbia. Confronted with these dueling injunctions, the U.S. Court of Appeals for the 5th Circuit stayed Kacsmaryk’s order, but for a period of time, many Americans’ access to an FDA-approved medication was fundamentally limited by one judge in Amarillo, Texas, who was hand-selected by the litigants.

Why does the Trump administration want to limit nationwide injunctions?

The Trump administration’s desire to limit nationwide injunctions likely stems from a desire to limit the courts’ power to check its policies. Currently, many administration policy priorities have been stymied by the judiciary, not just the birthright citizenship order. Courts have also halted enforcement of executive orders decimating federal funding for agencies such as the U.S. Agency for International Development (USAID) and firing federal employees. The Trump administration and its allies would hamstring the judiciary by taking nationwide injunctions off the remedies table, making decisions against them apply solely to the parties at issue and not to all the Americans affected by their power grabs.

Notably, many of these injunctions are not the result of explicit, Kacsmaryk-esque judge shopping. Rather, early rulings against the Trump administration—not all of which are nationwide injunctions—“have come from 39 different judges appointed by five different presidents [across] 11 different district courts across seven circuits.” In other words, this is not an instance where a single judge is imposing their policy preferences on the nation; it is a broad spectrum of judicial appointees upholding the law by preventing the enforcement of an unlawful executive order.

Rather than abide by those rulings, however, the Trump administration would force Americans to play a game of whack-a-mole with its policies, requiring them to bring cases across the country to challenge potentially illegal or unconstitutional orders, instead of receiving a nationwide injunction and stopping the orders in their tracks.

Conclusion

Regardless of one’s stance on nationwide injunctions, they are an important remedy. A complete disavowal of nationwide injunctions by the Supreme Court—especially in this case—would be striking in the chaos that would ensue, not just in the judicial system but in the impacts on every person residing in the United States. It would create a patchwork of enforcement requirements that would sow confusion into Americans’ daily lives.

There are indeed problems with this broad remedy that should be addressed, but nationwide injunctions are a vital tool in the judiciary’s belt. They stop manifestly unconstitutional and illegal policies from harming not just Americans but everyone in America. In a time characterized by an executive branch hell-bent on changing the nation at any cost, injunctions serve as a vital check on presidential power.

Without these injunctions, an untold number of children born in America would be unconstitutionally denied what is clearly established in the Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” They would be quite literally denied their birthright—denied access to all the benefits and protections of being an American citizen—in violation of more than a century of legal precedent. In this case, the harm imposed by this executive order justifies a nationwide injunction because limiting relief to the families and organizations who challenged the order is simply not sufficient to remedy the damage the order would do to the American people, the Constitution, and the rule of law.