My column today in the Pittsburgh Post-Gazette.

Bruce Ledewitz: How to stop a president from violating the Constitution without a national injunction

Special to the Post-Gazette

Jul 28, 2025

4:30 AM

One of President Trump’s first acts upon assuming office was to issue an executive order purporting to end birthright citizenship — the principle that almost anyone born in the United States is automatically a U.S. citizen.

Trump’s view is that the language of the 14th Amendment — “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States” — does not apply to the children of parents who entered the country illegally or abused their visa privileges by overstaying or lying on their applications. He claims that such people are not “subject to the jurisdiction” of the United States.

Both were wrong

Trump’s executive order was widely viewed as unconstitutional. Eventually three Federal District Court judges issued nationwide injunctions barring the enforcement of the order anywhere in the United States.

In one of those cases, Trump v. CASA, the U.S. Supreme Court stayed the injunction on the ground that, generally speaking, injunctions should be limited in scope to give relief only to the plaintiffs in a case. This allowed Trump to enforce the executive order against anyone not a party in the case.

Dissenting, Justice Ketanji Jackson denounced the decision as “an existential threat to the rule of law” because it allows a President to continue to pursue unconstitutional policies. Numerous legal experts agreed with her. President Donald Trump himself claimed that, with this decision, he will be free to move ahead with his plans to end birthright citizenship.

But none of that is true. Both are wrong.

Justice Sonia Sotomayor, who also dissented in the case, along with Justice Elena Kagan, suggested a strategy by which the Trump Administration, which has lost every case so far in which it claimed that birthright citizenship is not the rule under the Constitution, could continue to enforce the executive order that purports to end it.

All the Administration would need to do is not appeal its losing cases. That way, only the plaintiffs who have won their cases would be protected. Anyone too poor or confused to sue would still be subject to the executive order and thus to deportation.

That is completely far-fetched.

First of all, Justice Amy Barrett’s majority opinion specifically noted that the Solicitor General pledged the Administration would continue to seek review of lower court decisions and, if it eventually lost in the Supreme Court, the Administration would respect that ruling nationwide.

The executive order would be nullified.

Make the president lose in court

Second, you don’t need a nationwide injunction to stop a President from engaging in flagrant illegality.

Imagine that the Trump Administration did try to deport people who were born here. The Supreme Court has already held that everyone must receive due process before deportation. That means that a judge will ask in some sort of hearing what they have to say in their defense. And everyone will reply, “Your honor, I am a citizen. I was born here.” Because the law seems very clear that people born here are U.S. citizens, that person will then be released.

But what if the Trump Administration tries something in a field where judges are not involved? What if he withholds Social Security payments from anyone he alleges is not really a citizen?

In that case, enterprising lawyers will very soon be making easy money rounding up 50 to 100 litigants at a time to sue for an injunction forcing the government to begin making their payments again. The CASA decision only limited injunctions affecting people who were not parties. Cases brought on behalf of affected litigants would win instant preliminary relief.

Next, blue state governors would bring suit on behalf of all their citizens wrongfully denied Social Security benefits. Republican governors would be under tremendous pressure to do the same.

Eventually, a nationwide class action would be certified representing everybody wrongfully denied benefits. On July 10, Federal Judge Joseph Laplante issued just such a preliminary injunction blocking the birthright citizenship Executive Order nationwide.

Any policy that keeps losing in court will quickly end.

A nationwide injunction only really changes things in the opposite situation — when there is a lot of disagreement among judges about whether a presidential policy is unlawful. In that situation, an Administration might win nine cases in a row but lose the tenth and then lose its ability to enforce its policy because of a nationwide injunction.

Biden was right

During the Biden Administration, Republicans scoured the nation for a district judge somewhere who would agree that some Biden executive order was unconstitutional and enjoin it nationwide.

That is why the Biden Administration opposed nationwide injunctions, arguing that they should be issued sparingly, if at all.

President Biden was right about that and the practice of nationwide injunctions should have been ended long ago. The ruling in the CASA case benefits Trump for now — although not really in the case of birthright citizenship. But the ruling will benefit the next Democratic President soon enough.

This is one of those instances in which antipathy toward Trump has warped the judgment not only of ordinary people but of three Justices on the Supreme Court.

Bruce Ledewitz is professor of law emeritus at the Thomas R. Kline School of Law of Duquesne University. He writes every other Monday. The views expressed do not represent those of Duquesne University. His previous article was “The new ‘postliberals’ like Trump but not the Declaration of Independence.”

First Published: July 28, 2025, 4:30 a.m.