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The US Supreme Court on Thursday heard arguments over whether individual federal judges can block Donald Trump’s executive orders across the country.
It is the first time the court has weighed in on whether judges in lower courts can block the president’s policies nationwide and could have wide-ranging implications for Trump’s ability to implement his second-term agenda.
As part of his pledge to limit immigration, Trump in January signed an executive order that prevented children born to a mother who is illegally or temporarily in the US and a father who is not a permanent resident or a citizen from automatically becoming a citizen.
A number of lower federal court judges have blocked the order, with one branding it “blatantly unconstitutional”.
The justices were asked on Thursday to consider whether judges in lower courts should have the authority to issue nationwide injunctions against the orders rather than the constitutionality of the order itself.
A win for the government could overturn the nationwide injunctions and potentially strip millions who were born in the US of their constitutional right to become citizens.
Nationwide injunctions have ballooned in recent years as presidents have opted for executive orders rather than legislating in Congress, where lawmaking is often bogged down by partisan procedural battles.
But the court appeared to be split on the issue, with some conservative justices appearing to question whether individual judges should have the ability to block measures nationally, arguing that the top court is able to decide contentious cases quickly.
Others seemed to support liberal justices in raising concerns around the birthright order.
D John Sauer, US solicitor-general, told the court on Thursday that nationwide injunctions were a “bipartisan problem” that encourage “rampant forum shopping that require judges to make rushed, high-stakes, low-information decisions”.
But Liberal Justice Ketanji Brown Jackson warned that the government’s argument could turn the “justice system 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”.
Liberal Justice Elena Kagan added that if birthright cases were decided on an individual basis, “the ones who can’t afford to go to court, they’re the ones who are going to lose”.
“In a case like this, the government has no incentive to bring this case to the Supreme Court . . . It’s losing a lot of individual cases, which still allow it to enforce its [executive order] against the vast majority of people to whom it applies”.
The Supreme Court is expected to hand down its decision by June or early July.
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