Opinion | The Supreme Court’s Intolerable Ruling on Birthright Citizenship

What can individual federal courts immediately do when the president issues a blatantly unconstitutional order? The Supreme Court gave its answer on Friday morning: Not much.

In an astonishing act of deference to the executive branch, the Supreme Court essentially said that district judges cannot stop an illegal presidential order from going into effect nationwide. A judge can stop an order from affecting a given plaintiff or state, if one has the wherewithal to file a lawsuit. But if there’s no lawsuit in the next state over, the president can get away with virtually anything he wants.

The executive order at issue in this case was one issued by President Trump on his first day back in office, depriving citizenship to babies born in the United States to undocumented parents or even temporary residents, and it is as unconstitutional as they come, violating the clear wording of the 14th Amendment. Three federal judges, supported by three courts of appeals, have already ruled that it is illegal to end birthright citizenship.

But that didn’t matter to the Supreme Court’s six conservative justices, who said the lower courts had exceeded their power. Justice Amy Coney Barrett, who wrote the majority opinion, said the judiciary does not have “unbridled authority to enforce” the executive’s obligation to follow the law, because doing so would create an “imperial judiciary.”

But if the courts can’t stop illegal activity in the White House on a national basis, what good are they? That was the point made by Justices Sonia Sotomayor and Ketanji Brown Jackson in two of the most fervent dissents in recent memory. Both were clearly incredulous that the majority was willing to stand back and let Trump undermine a fundamental principle of citizenship in place for 157 years. Sotomayor, joined by Jackson and Justice Elena Kagan, said the Trump administration knows it can’t win a decision that its order is constitutional, so it is instead playing a devious game: applying the order to as many people as possible who don’t file a lawsuit. “Shamefully,” she wrote, “this court plays along.”

Those without resources to sue, Jackson wrote in a separate dissent, are disproportionately “the poor, the uneducated and the unpopular,” and so they will be subject to Trump’s whims. “This is yet another crack in the foundation of the rule of law,” she wrote, “which requires equality and justice in its application.” It creates two zones, she said: one where the rule of law prevails, and one “zone of lawlessness” where “all bets are off.” And that’s anathema to the universality of law that the Constitution’s authors envisioned. (The majority opinion didn’t leave out the possibility of class-action lawsuits, but those can be difficult and costly to assemble. States might also be allowed to demand nationwide injunctions, though that process was left unclear.)

The court didn’t rule on the legality of Trump’s order, but it didn’t have to. Instead, by default, it created what would, in 30 days when the order is supposed to go into effect, be an intolerable situation where some babies born to undocumented parents in the United States are legal citizens, and some are not. And the ramifications of the court’s earthshaking abandonment of the universal rule of law go far beyond that; Trump immediately held a news conference where he said the opinion would allow many of his other policies that have been put on hold. As Sotomayor wrote: “No right is safe in the new legal regime the court creates.”