The Supreme Court’s conservative majority on Friday cleared the way for the federal government to potentially enforce an executive order restricting birthright citizenship. The court’s dissenters — the three liberal justices — said the decision, even though it did not address the legality of the executive order itself, not only undermines judicial authority but poses a broader threat to constitutional protections.
The 6–3 ruling in Trump v. CASA doesn’t determine whether former President Trump’s executive order, which sought to deny birthright citizenship to children born to undocumented immigrants or those with temporary status, violates the 14th Amendment. Instead, it curtails the power of federal courts to issue nationwide injunctions, which can block executive policies from taking effect while litigation proceeds.
In blistering dissents, Justices Sonia Sotomayor and Ketanji Brown Jackson, joined in dissent by Elena Kagan, accused the court of abdicating its role as a check on unlawful government power.
“Few constitutional questions can be answered by resort to the text of the Constitution alone,” Sotomayor wrote, “but this is one.” Recalling that only once before—Dred Scott v. Sandford—had the federal government attempted to strip birthright citizenship from a category of people born in the United States, Sotomayor observed that the principle has since stood unchallenged for over a century. “There it has remained, accepted and respected by Congress, by the Executive, and by this Court. Until today.”
“With the stroke of a pen,” Sotomayor wrote, “the President has made a ‘solemn mockery’ of our Constitution.”
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Sotomayor accused the court of going along with a “shameful” request by the government to continue enforcing a policy that multiple lower courts have found likely unconstitutional. “No right is safe in the new legal regime the Court creates,” she warned.
Justice Jackson offered a similarly stark warning: “Courts must have the power to order everyone (including the Executive) to follow the law—full stop. To conclude otherwise is to endorse the creation of a zone of lawlessness … where individuals who would otherwise be entitled to the law’s protection become subject to the Executive’s whims instead.”
“Stated simply,” Jackson wrote, “what it means to have a system of government that is bounded by law is that everyone is constrained by the law—no exceptions.” Allowing the executive to apply the law as it sees fit, so long as they are not party to a case against the government, she added, “carves out a huge exception … that could turn out to be a mortal wound.”
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