SCOTUS sets May 15 arguments in Trump birthright citizenship order request

Technically over the administration's "partial stay" request, a ruling could allow the admin to start implementing the unconstitutional order. Also: More on DOJ Civil Rights.

On Thursday, the U.S. Supreme Court announced that it will be hearing arguments on May 15 over the Trump administration’s request to begin implementing President Donald Trump’s executive order ending birthright citizenship in portions of the country while the government’s appeals of losses below are ongoing.

In the meantime, the executive order — found to be likely unconstitutional by every court to consider it — remains blocked nationwide.

This is not a case over the executive order itself — although, as I will explain, it also could be. This will technically be an argument only over the scope of the relief ordered by the district court judges hearing challenges to the executive order: nationwide injunctions.

Specifically, the Justice Department asked the justices to issue a partial stay of three preliminary injunctions entered against implementation of Trump’s January 20 order — all of which applied nationwide. The justices, then-Acting Solicitor General Sarah Harris wrote, must address “nationwide” or “universal” injunctions:

The posture of the case — a shadow docket request for a partial stay pending appeal — is unusual though not unprecedented, but it is not the ordinary way in which the justices take up cases on their merits. Instead of ruling on the constitutionality and legality of Trump’s executive order, this is what the Justice Department has asked the justices to do:

There will be no additional briefing — just the May 15 arguments.

And, though some justices and commentators have questioned the use of nationwide injunctions by district courts generally, the respondents in these cases — the people, groups, and states who sued — have strong arguments as to that issue that will be before the court on May 15.

A nationwide injunction, they argue, is necessary here. As the Washington state-led multistate group argued, “[N]ationwide relief was clearly appropriate given the unrebutted record of specific harms to the Plaintiff States, and the costs and confusion that a patchwork rule of citizenship would impose on them.“

In the case brought by nonprofit organizations supporting immigrants, they argued, “Only a universal injunction would adequately ensure that relief reaches all members of the organizational plaintiffs. Plaintiff CASA has more than 175,000 members. Plaintiff ASAP has more than 680,000 members. They reside in all 50 states. An injunction requiring the government to recognize only the citizenship of children born to those members would be burdensome, inefficient, and unworkable.”

The New Jersey-led multistate group argued that the specific circumstances of these cases should dictate the Trump administration’s loss here. “[A]pplicants seek to implement a policy that is directly (and for these purposes, undisputedly) foreclosed by binding decisions of this Court,” the lawyers wrote. “That is fatal: emergency relief may be appropriate in some cases to limit the geographic scope of relief that was ordered by a district court, but not where this Court already settled the precise constitutional question for the entire Nation.“

Unlike has happened in other cases, the Justice Department notably did not ask the justices to consider granting certiorari before judgment in these cases — effectively skipping over the appeals courts in order to take the merits case up immediately.

This matters. The Trump administration — and conservatives opposing the Biden administration before that — often want to get to the Supreme Court quickly because they are confident in their chances before the 6-3 conservative-led court. Here, where appeals are being considered in more liberal circuits — the First Circuit, Fourth Circuit, and Ninth Circuit — one would normally expect DOJ to jump at the chance to skip over the possibility of multiple rulings against the administration.

But, this is not a normal case. It is a loser of an argument — recall that the first temporary restraining order blocking implementation of the order came from a Reagan appointee who was outright dismissive of the arguments pressed for the constitutionality of the order — and it is pretty easy to imagine a procedural scheme at work here.

By focusing the issue on nationwide injunctions, the Justice Department is trying to create a situation where the Supreme Court court could issue an order allowing the Trump administration to start implementing this unconstitutional order while being able to assert that it has, in no way, technically blessed the order.

“This decision is and should not be understood to be a ruling on the merits of this executive order,” a hypothetical order from the conservatives could state, “but rather answers a question about the proper scope of a district court’s authority. Here, the district courts overstepped that authority with their nationwide injunctions.”

Such a ruling, though, would be a ruling on the merits, insofar as limiting the injunctions to the plaintiffs and states that are parties would allow the Trump administration to begin implementing a clearly unconstitutional executive order.

This is not entirely hypothetical musing. Recall that — the fall before the Supreme Court overturned Roe v. Wade — it allowed Texas’s S.B. 8 vigilante enforcement abortion ban to take effect despite it being clearly unconstitutional under Roe. There, the unsigned opinion for the court used procedure to justify its action, referring to the “complex and novel antecedent procedural questions” regarding the law designed to create those very questions and subvert the right to an abortion.

Because we do not know which justices put this stay request up for argument or why, we won’t know until May 15 precisely what is going on — and even then it might be a guess — but, in the meantime, it is important to note the merits implications — and the real-world effects — of what the Trump administration will certainly claim is a modest “partial stay” request.

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Dhillon’s Civil Rights Division destruction is in motion

The Justice Department’s Civil Rights Division is soon going to be a shell of its former self — in ways intentional and indirect — following Assistant Attorney General Harmeet Dhillon’s confirmation to lead the key DOJ department.

Although Law Dork reported on April 15 that this was likely, further information illustrates both the scope and the immediacy of the upheaval.

Law Dork has confirmed that Timothy Mygatt, who was a Deputy Assistant Attorney General until Wednesday, resigned after Dhillon told him that there are going to be no career lawyers in the front office — the leadership — in the Civil Rights Division.

Mygatt was going to be reassigned. He resigned instead. he was the last career official in the front office.

Only political appointees are in the leadership office of the Civil Rights Division, and that is how it will be under Dhillon’s time running the office.

Law Dork has also now heard from multiple sources that Mygatt will not be alone. People expect that large numbers of attorneys in the Civil Rights Division will take the second “Deferred Resignation Program” offer.

One person familiar with people’s plans suggested the offer is expected to “gut” some parts of the division, while another person noted that, in one section of the Civil Rights Division, almost everyone was likely to take the offer.

While some people left the division in the first “Fork in the Road” program offering deferred resignation, this time the response — in light of Attorney General Pam Bondi’s actions, as well as Dhillon’s early moves — is expected to be very different.

“People are very scared and worried they will not be able to continue the work they were hired to do and have been doing,” one of the people said of the mood and reasoning. “They are of course also afraid of what they are being asked — and will be asked — to do instead.“

Given the Trump administration’s positions — including through President Donald Trump’s executive orders — on issues that traditionally have been dealt with by the Civil Rights Division, it is not surprising to see this result.

Not only will past litigation — including efforts to improve policing — likely come to an end, new litigation is waiting in the wings. Law Dork previously reported, for example, that the Civil Rights Division is planning “Second Amendment rights litigation.”