Supreme Court justices across the ideological spectrum have long complained about the expanding power of lower court judges to step in and halt a president’s policies across the whole nation.
On Thursday, the high court will get a chance to do something about it.
The Supreme Court will hear oral arguments on President Trump’s request that the justices reel in a district court ruling that blocked his changes to birthright citizenship throughout the country.
They are known as universal or nationwide injunctions, and judges have been increasingly using them against presidents — though Mr. Trump has shattered the record with more than a dozen of them in his second term.
“Universal injunctions have reached epidemic proportions,” Solicitor General D. John Sauer wrote in a petition asking the court to hear the case.
Most members of the current Supreme Court have signaled that they, too, see a problem, though some have said that unwinding the issue will be complicated.
Most of the attention at the high court on Thursday will be on the birthright citizenship question.
Mr. Trump declared in an executive order in January that the government would no longer automatically recognize the citizenship of children born to illegal immigrants or temporary visitors. He said they fall outside of the 14th Amendment’s citizenship guarantee, which extends to those “subject to the jurisdiction” of the U.S. government.
Opponents say that’s a misread of the Constitution or, at the very least, a redefinition would require an act of Congress and can’t be done through executive order.
Four lower courts have sided with the opponents and issued varying degrees of universal injunctions on Mr. Trump’s policy. Three appeals courts have already ruled and allowed universal injunctions to stand.
Using a case out of Seattle, Mr. Sauer has asked the Supreme Court to step in and limit the ruling only to the parties who actually sued — in that case, the states of Washington, Arizona, Illinois and Oregon.
Josh Blackman, a professor at South Texas College of Law, said he thinks the justices will dive into the citizenship issue and sidestep the problem of nationwide injunctions from lower courts.
“I think the court will actually decide the merit issue and skip the nationwide injunctions issue,” Mr. Blackman said, adding that the justices “won’t touch it.”
But Carrie Severino, president of JCN (formerly the Judicial Crisis Network), said the justices need to referee the universal injunction issue.
“You now have a clear majority of the court — in fact, maybe a supermajority of the court — that has weighed in critically [on] nationwide injunctions,” Ms. Severino said.
That includes Justices Neil M. Gorsuch and Clarence Thomas, both of whom have complained about universal injunctions in past opinions.
“The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them,” Justice Gorsuch wrote in a 2020 concurrence, agreeing with the court’s move to halt a lower court’s nationwide injunction against one of Mr. Trump’s immigration policies during his first term.
“Whether framed as injunctions of ‘nationwide,’ ‘universal’ or ‘cosmic’ scope, these orders share the same basic flaw — they direct how the defendant must act toward persons who are not parties to the case.”
That dispute dealt with the definition of “public charge” as it related to immigration law. Justice Thomas signed on to Justice Gorsuch’s concurrence.
Justices Amy Coney Barrett and Samuel A. Alito Jr. have signed onto Justice Gorsuch’s opinions, too, on the topic.
Justice Elena Kagan in a 2022 speech warned of the danger of lower judges wielding too much power.
“It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process,” Justice Kagan said in remarks at Northwestern University.
Other justices have said the issue needs attention but were circumspect on how they expect the issue to shake out.
That includes Justice Brett M. Kavanaugh, who in a 2023 opinion said no law allows a district court judge to issue injunctions that go beyond the parties involved and said the high court may need to set standards. Justice Barrett signed onto that opinion.
And Justice Ketanji Brown Jackson, in a 2024 opinion joined by Justice Sonia Sotomayor, said the matter hasn’t been settled — and it will be tough to do so.
“Simply put, the questions raised by ‘universal injunctions’ are contested and difficult,” Justice Jackson wrote in a dissent from a decision limiting a lower court’s universal injunction.
Mr. Trump himself has demanded the justices take action.
“Stop nationwide injunctions now, before it is too late,” he posted on Truth Social in March. “If Justice Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation immediately, our country is in very serious trouble!”
Adam Feldman, a Supreme Court scholar and creator of the Empirical SCOTUS blog, said the legal issue may come down to whether the courts can resolve the issue or whether Congress needs to weigh in.
“Ultimately the problem seems less about aversion to this process and more about how to curtail or reform it (and who is authorized and responsible to do that),” Mr. Feldman said in an email to The Washington Times.
Some legal analysts said the high court may try to compartmentalize universal injunctions, finding they are right in some cases, even if not in all instances.
Immigration groups said the birthright citizenship case is an example of that. Allowing immigration and citizenship rules to vary based on lower court rulings could sow chaos.
“Whether a child is a citizen of our nation should not depend on the state where she is born or the associations her parents have joined,” CASA, an immigration advocacy organization that brought one of the challenges to Mr. Trump’s birthright citizenship policy, told the high court.
The cases are Trump v. CASA, Trump v. Washington and Trump v. New Jersey. They’ve been consolidated.
A ruling is expected by the end of June.
