Constitutional lawyer Jeff Lewis joined "Forbes Newsroom" to discuss the Supreme Court case about birthright citizenship and the power of lower courts to issue nationwide injunctions.
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00:00Hi, everyone. I'm Maggie McGrath, Senior Editor at Forbes. The Supreme Court today heard oral
00:09arguments in a case about lower court's authority to stop President Trump's executive order
00:16regarding birthright citizenship. This is a high-profile case, and joining us to break it
00:21all down is constitutional lawyer Jeff Lewis. Jeff, thanks so much for joining us.
00:26Yeah, thanks for having me. So, as you and I were just saying before we started recording,
00:31this case is a little specific. It's not so much that the Supreme Court is actively considering
00:36the issue of birthright citizenship, but rather the authority of lower courts to interfere in the
00:44application of President Trump's executive order regarding birthright citizenship. Is that correct?
00:50That's exactly right. The Trump administration didn't ask the Supreme Court to weigh in on
00:55the legitimacy of birthright citizenship or the merits of this constitutional argument. Instead,
01:01the narrow procedural question is whether lower courts, federal judges, have the power to issue
01:06these nationwide injunctions in this and other contexts. So, you heard the first 45 minutes of
01:13oral arguments today. Take us through what you heard and broadly what happened in court today.
01:18There were a lot of questions asked about where should the line be if the court were to allow
01:24nationwide injunctions to be issued by lower courts. What is a test that would, or a limiting
01:30principle, where a judge could decide what is an appropriate case for issuing such an injunction? Is it
01:36that it's an egregious violation of the Constitution? Is it a facial challenge? Those are the types of
01:41questions that were asked of both sets of lawyers. Is this case ultimately a backdoor into ending
01:48injunctions from lower courts on all issues? We've seen this happen with specifically reproductive
01:54rights cases in some cases. You hear the word injunction quite a bit these days. Does the Trump
02:01administration just want to end that ability? Well, let's be fair to President Trump. There's been
02:06widespread criticism of nationwide injunctions from lots of administrations when it was used to
02:12restrict access to the abortion pill. One judge in Texas who issued this decision that had nationwide
02:18impact. There's been lots of opposition or concern about the scope of nationwide injunctions. So, it's not
02:24really a partisan issue. And yeah, what is that issue here is not limited to just the citizenship
02:30debate, but the power of federal judges to issue relief for people who are not in front of that
02:36judge? Or will everybody who's aggrieved by the citizenship question have to file their own separate
02:41lawsuits? So, what happens after today? Do we know when the Supreme Court will decide? And do we know how
02:49they might decide? There's no time limit for them to issue relief, but everybody thinks they'll issue relief
02:56within the next 30 days because of how fast and the unprecedented nature in which this argument reached the
03:01Supreme Court. Recall it was on the shadow docket and reached the oral argument stage without a lot of
03:07the traditional briefing you see. And I was counting votes. It is my prediction that the court will not
03:15reach the actual merits of whether or not someone born in the United States is a citizen and instead
03:19will keep their analysis limited to whether or not a federal judge has the power to issue an injunction
03:26nationwide. And then the big question will be, will it be limited to the facts of this case or go broader
03:32in terms of all the executive orders? And I predict it'll be a 3-6 vote, perhaps a 4-5 vote,
03:39restricting the ability of federal judges to issue injunctions. You heard the three liberal justices,
03:45Sotomayor, Kagan, and Jackson, all asking very difficult questions of the Solicitor General,
03:50suggesting those three are supportive of national injunctions. And Justice Barrett also asked
03:56some difficult questions. I didn't see any other justices asking questions that suggested to me
04:01that they're ready to expand this power of national injunctions.
04:08So if the ruling were to come down in the way that you predict, what would then happen? Can you give
04:14us a sample use case? Yeah, it would mean that only the parties to this specific case, or actually
04:20there's three cases in front of the Supreme Court that were consolidated, only they would benefit from the
04:25injunction. And therefore anybody else who perhaps is pregnant and about to have a baby, and they want
04:31to have some assurance about whether or not their baby citizenship is assured, or state regulators who
04:36are concerned about the administrative headache of having to determine whether patients coming into
04:41hospitals are actual citizens and have the right to receive services. All of those people who are
04:47aggrieved by the executive order would each have to file a separate lawsuit, or an enterprising
04:52plaintiff's lawyer might be able to craft a class action. The Supreme Court did leave open the door
04:59today to possibility of filing a class action for all the people harmed by this executive order.
05:05So effectively, litigation action would increase what sounds like almost more than tenfold.
05:11The courts are going to be buried, absolutely buried in challenges. And in addition to the quantity of
05:18decisions, you're going to have conflicting decisions. Judges in California, where I am,
05:22might issue decisions that conflict with decisions issued in Kentucky or Texas. And so it's going to
05:28create a mess. Is there anything within the Constitution that would prevent that mess or perhaps make this
05:36case go in a different direction? Or I guess you said 6-3, could it go 6-3 in the other way because
05:43of something that is in the Constitution that would allow for nationwide injunctions?
05:48Well, getting to Justice Thomas's questions today, there is no real express provision in either the
05:53Constitution or the Judiciary Acts passed by Congress that empowers judges to issue nationwide injunctions.
06:00There is a historical practice, and the question is whether or not the Supreme Court wants to craft,
06:05not as a matter of constitutional law or congressional authority, a judicial doctrine that the certain extreme
06:11cases of constitutional violations that are clear on their face. There is a hypothetical possibility
06:17that they could create such a doctrine, but I didn't see the votes today for that.
06:22And you mentioned precedent. How much does this court care and consider precedent compared to other
06:27courts in your experience?
06:30Well, that brings us back to Roe v. Wade being overturned. Roe v. Wade was long held to be the law of
06:35the land, and that was discarded. There's been decades of lower courts and higher courts all the way up
06:41to the Supreme Court affirming the use of national or nationwide injunctions. And so this would be a,
06:47I'm not going to say unprecedented, but this would be a departure from those cases and precedent that
06:52allow national or broadly phrased injunctions to be given effect.
06:58A lot of the media and social commentary I've seen around this case is focusing on the actual
07:03question of birthright citizenship and the legality under constitutional law. Were there any questions
07:09today from any of the justices that hit at the heart of that issue?
07:14No, no, none of these, none of these justices wanted to tackle that question because they know
07:18it's a, it's a loser. It's, it's a loser for the Trump administration and none of the justices
07:22wanted to even touch it. And Maggie, I will buy you lunch if the opinion issued in this case deals
07:27with the citizenship question directly.
07:31And you say that because there's constitutional protection for birthright citizenship and it almost
07:36justices, I don't put words in your mouth, but some of what I have been seeing in commentary,
07:40admittedly on the more progressive side, is saying there's no way we can reconsider this.
07:46It is the law of the land. Is that what you would say?
07:50Most people, even the conservative folks and the liberal folks, agree that this view of the
07:57constitution and its amendments has been around for so long that to disturb it at this juncture,
08:03would be extraordinary as extraordinary as it was reversing Roe v. Wade in light of how long
08:10Roe v. Wade was around. And so it's that longstanding respect for the 14th amendment that I think
08:17is going to compel these justices to leave it alone.
08:22Is there any argument or case to be made that, you know, the time in which the 14th amendment
08:28was written is a different time than we are in now, and therefore the 14th amendment should be
08:34revisited? Does that argument hold water?
08:37Yeah, that's the precise argument advanced by the Trump administration. It's interesting because
08:43typically conservatives and Justice Thomas will look at the plain text of the constitution and
08:48the amendments. And the plain text seems to suggest that anyone born here is a citizen and that you
08:55have to go through the history and what was happening to the country at the time it was passed
09:00to contradict that plain text. And that's not typically an argument you see conservative
09:04justices advancing.
09:08So you said that relief will likely come within 30 days. What in layman's terms does relief mean
09:14in this situation?
09:16So right now there's a nationwide injunction prohibiting enforcement of the executive order on this issue
09:21of citizenship. And my prediction is that on a 6-3 or maybe a 5-4 basis, an opinion will issue from the
09:28Supreme Court dissolving that injunction or limiting that injunction to just the parties involved in the
09:34three cases and not have nationwide effect. And the next practical effect after that is you're going
09:40to see many, many, many lawsuits filed on behalf of agreed people who are not parties to that case,
09:46or perhaps a joinder to that case, or perhaps someone will file a class action.
09:51What will you be watching for in the next 30 days? Or what questions will you be asking?
09:57Well, I was looking today to see if there were any justices who seemed interested in establishing a
10:03bright line rule for lower courts to follow in terms of nationwide injunctions, not just for this
10:08case, but for all cases. And I didn't hear any questions suggesting that they have a lot of appetite or
10:14interest in that. So my prediction and what I'm going to be looking to see is probably a pretty narrow
10:19opinion limited to just this case, and it won't have application to other executive orders.
10:26But who knows?
10:27Is there anything else our Forbes audience should know or anything they should have in mind as they
10:31continue to read news coverage and hear discussion of what is broadly being described as the birthright
10:36citizenship case, but perhaps could more accurately just be described as lower court authority case?
10:42Yeah, that's right. Read beyond the headlines. Read the actual opinions when they come out or read
10:47the articles or watch the interviews that discuss that, yeah, this is not a birthright citizenship case.
10:52It is a nationwide injunction case, and it's a law of procedure that appellate nerds like me love
10:56to study, but has really nothing to do with birthright citizenship.
10:59Jeff Lewis, constitutional lawyer, thank you so much for joining us and breaking down the specifics of this case.
11:06We really, really appreciate your time and your insight.
11:09Yeah, thanks for having me. Have you back on when the opinion comes down.
11:12We absolutely will, because I suspect it will be hard to parse for those of us lay people who do not have JDs.