ARI SHAPIRO, HOST:
Today, the Supreme Court heard oral arguments on an issue that courts have not questioned in more than a century - birthright citizenship. The 14th Amendment guarantees that every person born in the United States is automatically a U.S. citizen. President Trump ordered an end to birthright citizenship on his first day in office, and a judge put that order on hold. So this case is also about whether a judge can issue a nationwide injunction. Amanda Frost is a professor of constitutional law at the University of Virginia, where she teaches classes on citizenship law. And she listened to today's oral arguments and is in the studio now. Welcome.
AMANDA FROST: Thank you for having me.
SHAPIRO: Well, top line, what stood out to you from the two-plus hours of arguments today?
FROST: Yeah. So it's clear that a number of the justices are very concerned about this nationwide injunction - that is, when a district court issues an injunction that bars the executive branch from applying its policies to anyone, not just the plaintiffs in the case - and that it was not going to be focused on the constitutionality of the executive order. And indeed, that's what came to pass. Although the constitutional questions did come up occasionally, the focus was on the scope of the injunction. But it was equally obvious that even some of the more conservative justices, like Barrett and Kavanaugh, are worried about what would happen without nationwide injunctions, especially in light of a president who's issued so many executive orders making radical changes to the law.
SHAPIRO: So less about the birthright citizenship question, more about what sounds like a technical question - nationwide injunctions from judges. Can you explain why a decision that kind of punted on birthright citizenship but addressed nationwide injunctions could be so consequential it could have a huge impact?
FROST: Yes, the nationwide injunction question is vital not just to the birthright citizenship litigation, but to a large number of this president and previous presidents' executive branch policies. There's now 40 nationwide injunctions in place against President Trump's executive branch policies. And, of course, he's issued 150 executive orders, which partly explains that policy. So this is relevant to many cases, not just birthright citizenship.
SHAPIRO: And we should say, during the Biden administration, there were conservative judges who issued nationwide injunctions against a more liberal president's executive orders.
FROST: Yes. I mean, Biden's student loan forgiveness policy, which was a sweeping change in law - quite controversial - and it was put on hold by a nationwide injunction, as was President Obama's changes to immigration law.
SHAPIRO: So the judges are skeptical of nationwide injunctions. At the same time, they expressed a lot of concern about what would happen if that judicial authority is eliminated. Tell us about what they're concerned about here.
FROST: Yeah. I mean, this case is all about the lag time or delay between when litigation is filed - challenging, for example, this birthright citizenship executive branch order - till when it's finally decided, which could be three or four years later. And so the justices both want to limit nationwide injunctions, and yet they recognize the chaos that could ensue if something like this birthright citizenship executive order went into effect for three or four years.
SHAPIRO: Explain what that could look like in that hypothetical scenario.
FROST: Yes, and I thought that the plaintiff's lawyers did an excellent job of explaining this to the justices. Because it would mean that all 3.6 million children, on average, born every year in the United States, their parents would have to scramble to prove their citizenship. It would no longer be good enough to show the child's birth certificate. And it would cause chaos and confusion, as the lawyers for the plaintiffs argued. And Justice Brett Kavanaugh seemed particularly taken by that point. He kept asking Solicitor General Dean John Sauer how this would work.
(SOUNDBITE OF ARCHIVED RECORDING)
BRETT KAVANAUGH: What do hospitals do with a newborn? What do states do with a newborn?
DEAN JOHN SAUER: I don't think they do anything different. What the executive order says in Section 2 is that federal officials do not accept documents that have the wrong designation of citizenship from people who are subject to the executive order.
KAVANAUGH: How are they going to know that?
SAUER: The states can continue to - the federal officials will have to figure that out is how.
KAVANAUGH: How?
SAUER: So you can imagine a number of ways that the federal officials could...
KAVANAUGH: Such as?
SAUER: Such as they could require a showing of, you know, documentation showing legal presence in the country. For a temporary visitor, for example, they could see whether they're on a B-1 visa, which would exclude kind of the birthright citizenship and that kind.
KAVANAUGH: For all the newborns? Is that how that's going to work?
SAUER: Again, we don't know.
FROST: And I don't think he got the answers he wanted.
SHAPIRO: This is the most conservative Supreme Court in decades, with a six-justice supermajority of right-leaning justices, and yet even within the conservative movement, the 14th Amendment guarantee of birthright citizenship was never a seriously debated question until recently. How did we get here?
FROST: Oh, that's a good question. I mean, this is something President Trump did raise in his first term in office, although he didn't ever issue such an executive order. He promised it. It was on his campaign website as a campaign promise. He delivered Day 1. He's adopted some fairly fringe theories to support this executive order. But so far, it's lost in every court to have addressed it, including by judges appointed by Republican presidents. President Reagan - one of his appointees called it blatantly unconstitutional.
SHAPIRO: So judging from the questions that we heard from the court today, it sounds like your assumption is we may not get a blockbuster ruling on the 14th Amendment guarantee of birthright citizenship. But do you have a sense of where they might come down on this question of whether a judge can issue a nationwide injunction?
FROST: Yeah. They're very unlikely to address the substantive constitutional question, although they may hint at their resolution of it. In terms of where they're going to come out on this really important question of whether lower courts can issue injunctions that bar policies from going into effect across the nation, I think the justices are going to want to either establish a limiting principle - that is, try to prevent these injunctions from being appropriate or issued in every case potentially - and they also are going to try to push these cases into the class action device - that is, the ability of a plaintiff to try to certify a class. So I think they're going to try to adopt a rule that encourages class actions in the place of nationwide injunctions and/or limits nationwide injunctions.
SHAPIRO: And we are expecting that decision, whichever way the justices rule, later this summer. That is law professor Amanda Frost, author of the book "You Are Not Americans: Citizenship Stripping From Dred Scott To The Dreamers." Thank you.
FROST: Thank you. Transcript provided by NPR, Copyright NPR.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.
