There are many lawsuits challenging allegedly illegal actions by the Trump administration — 132 of them as of March 21, according to the legal news site Just Security. That’s a lot to keep track of.
Two issues raised by some of these suits stand out, however, as Trump’s most blatant violations of the Constitution, and therefore as matters to pay particular attention to.
One is the question of whether Trump can simply cancel federal spending that is mandated by an act of Congress, an issue known as “impoundment.” As future Chief Justice William Rehnquist wrote in a 1969 Justice Department memo, “it is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend.”
The other issue is birthright citizenship. The Constitution is absolutely clear that anyone born in the United States and subject to its laws is a citizen, regardless of the immigration status of their parents. As one Reagan-appointed judge said of Trump’s attempt to strip citizenship from some Americans born in this country, “I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is.”
The current Supreme Court is not just very far to the right, it is alarmingly partisan. The Court’s spent the last several years settling old grievances, overruling decades-old cases that the Republican Party has long found objectionable. It even ruled that Trump, the leader of the Republican Party, is allowed to use his official powers to commit crimes.
So it is reasonable to worry that a majority of the justices will simply do whatever a Republican administration wants them to do.
This is why the birthright citizenship and impoundment cases are such important bellwethers. No competent lawyer, and certainly no reasonable judge, could conclude that Trump’s actions in either case are lawful. There is no serious debate about what the Constitution says about either issue. If the Court rules in favor of Trump in either case, it’s hard to imagine the justices offering any meaningful pushback to anything Trump wants to do.
Fortunately, there are early signs that this won’t happen. On the impoundment issue, the Supreme Court recently rejected the Trump administration’s request to block a lower court order compelling the administration to make approximately $2 billion in payments to foreign aid organizations.
The vote was 5-4, and the Court’s decision likely turned on a careless mistake by Trump’s lawyers. Still, even a small defeat for Trump indicates that most of the justices aren’t so eager to bail out the leader of the Republican Party that they will jump on the first opportunity to do so.
Similarly, three cases raising the birthright citizenship issue recently landed on the Court’s shadow docket — emergency motions and similar matters decided, often very rapidly, outside of the Court’s normal schedule. So far, the Court’s only issued brief orders indicating that the justices won’t even start to consider the case until April 4 at the earliest, more than three weeks after the Trump administration asked them to intervene.
That’s not a definitive sign that birthright citizenship is safe, but the fact that the Court decided to wait three weeks before looking at lower court orders that protected birthright citizenship suggests that most of the justices don’t take the Trump administration’s arguments very seriously. If they had, they likely would have heard the cases sooner — in the foreign aid case where four justices sided with Trump, for example, the plaintiffs were given just two days to respond to the Justice Department’s arguments.
The legal arguments for impoundment are really, really bad
Trump has claimed sweeping authority to cancel spending appropriated by Congress, including dismantling entire agencies like the US Agency for International Development (USAID). He also issued an executive order purporting to strip citizenship from many children born to undocumented mothers, or to parents who are temporarily present in the United States. Thus far, the courts have treated both of these actions with skepticism — as they should because they are clearly unconstitutional.
Rehnquist’s dismissive response to impoundment speaks for itself. There’s simply nothing in the Constitution that supports the argument that the president can impound funds that Congress commands him to spend. Indeed, the only language in the Constitution that seems to speak to this issue cuts against Trump. Among other things, the Constitution says that the president “shall take care that the laws be faithfully executed.” So the president has a duty to faithfully execute any law providing for federal spending.
It’s worth noting, moreover, that at least two of the Court’s Republicans have previously expressed skepticism about impoundment. Justice Brett Kavanaugh wrote in a 2013 opinion that “even the President does not have unilateral authority to refuse to spend” funds appropriated by Congress. And Roberts wrote in a 1985 White House memo on impoundment that “no area seems more clearly the province of Congress than the power of the purse.” (Though it is worth noting that Roberts also suggested, in an attachment to that memo, that the president may have greater authority over spending relating to foreign policy.)
The legal arguments against birthright citizenship are even worse
The case for birthright citizenship is even more straightforward. The Fourteenth Amendment provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Someone is subject to US jurisdiction if the federal government can enforce its laws against that person. Undocumented immigrants and their children are obviously subject to US law, otherwise they could not be arrested or deported.
As the Supreme Court held in United States v. Wong Kim Ark (1898), the “subject to the jurisdiction” exception to birthright citizenship is narrow and primarily applies to the children of “diplomatic representatives of a foreign state,” who have diplomatic immunity from US law, as well as children “born of alien enemies in hostile occupation.”
At least three courts have issued orders blocking Trump’s attack on birthright citizenship. In a brief asking the Supreme Court to narrow these orders, the Trump administration claims that the word “jurisdiction” actually means “allegiance.” So someone is not a citizen if they don’t owe “primary allegiance to the United States rather than to an ‘alien power.’”
But there are two reasons to doubt that even the Trump administration agrees with this argument. One is that Trump’s executive order only purports to strip citizenship from some children born to foreign nationals — a child of two lawful permanent residents, for example, remains a citizen. But if the Fourteenth Amendment doesn’t apply to anyone who owes “primary allegiance” to an “alien power,” that would mean that all children of foreign nationals should be stripped of their citizenship. The Constitution makes no distinctions based on whether a child’s parents are legally present in the United States, nor does it draw lines based on whether those parents are temporary or permanent residents.
The second reason is that, in its brief to the justices, the administration does not even ask the Court to fully reinstate Trump’s birthright citizenship order. Instead, it asks the Court to narrow the lower courts’ decisions so that they only apply to the plaintiffs in the specific lawsuits challenging that order. If Trump’s lawyers thought they had a winning argument, they almost certainly would have asked the justices to consider the merits of this case.
The question of whether lower court judges may issue what are known as “nationwide injunctions,” orders that suspend a federal policy in its entirety rather than permitting the plaintiffs in an individual case to ignore that policy, has lingered for quite some time. It’s these orders that are blocking Trump’s attack on birthright citizenship. Trump’s Justice Department pushed the Court to limit these nationwide injunctions during his first term, as did the Biden administration. But the Court has thus far allowed at least some of these broad orders to stand.
While there are strong arguments against these nationwide injunctions, the Court has resisted efforts to limit them for years. It would be quite aberrant for the justices to suddenly decide to strip lower courts of their power to issue these nationwide orders in the birthright citizenship cases, where Trump’s arguments on the merits are frivolous.
In any event, the only outward sign the justices have given regarding their views on birthright citizenship suggests that Trump is going to lose. When the Justice Department asks the justices to stay a lower court’s decision, one of the justices typically asks the other party in the case to respond to that request by a short deadline — sometimes as little as a few days, and rarely more than a week. In this case, however, the Court gave the plaintiffs arguing in favor of birthright citizenship three full weeks to respond.
So long as the Court does nothing, the lower court orders blocking Trump’s attack on birthright citizenship remain in effect. And the justices are unlikely to do anything until they read the plaintiffs’ response. So, by stringing this case out for an additional three weeks, the justices ensured that Trump’s executive order wouldn’t go into effect any time soon.
All of which suggests that the Supreme Court appears unlikely to back Trump on his two most clear-cut violations of the Constitution. That does not mean that this Court will act as a meaningful check on many of Trump’s other illegal actions. But it does suggest that at least some members of the Court’s Republican majority will occasionally say “no” to the leader of their political party.
