Although justices might be skeptical of nationwide injunctions, the problems with Trump's birthright citizenship executive order loomed larger at SCOTUS on Thursday.
I have to say, hearing Sauer argue on behalf of the United States is painful, not only because of the quality of his argument, but also because the Court bought his cockamamie arguments in the Immunity case that brought us here.
I think at least part of the reason they keep pushing outrageous and unprecedented arguments is that sometimes this court bites. Looked at from Tr*mp's psychology - which they've taken care this time to replicate throughout the administration - they think the court are suckers. The other part is that their experience in the political realm has shown them that if they stick to the outrageous and unprecedented, gravity can pull the middle of the debate quite far in their direction, so they apply that approach to every other realm. No one is really countering this very effectively.
The Court has the power, if it has the courage or at least self-awareness, to deny Trump's request, find the DOJ in criminal contempt for ignoring the judicial branch rulings, and also overturn its previous decision on presidential immunity. The Court can stop the Coup, if it dares.
I agree with you that the Court brought this on themselves ("the justices knew the Justice Department’s arguments here when they decided to set this shadow-docket request for oral argument.").
Also, Sauer's argument that Art III courts do not have the power to issue universal injunctions was not persuasive.
The Court should have insisted on a merits review before addressing universal injunctions in this case. As was pointed out (Kagan?), it is the Court's job to say what the law is. The Constitution, the birthright statute and the birthright cases couldn't be clearer.
Hmm, perhaps the tactic of flooding the field might work with the public … not so much with SCOTUS. But what would happen if Trumpers used a scalpel instead of a hammer?
"In addition to a bad case, Sauer is a less-than-stellar advocate and this argument exemplified where he falls short of past solicitors general, even from Trump’s first administration"
I once commented before tRump 2.0 launched that former SG Elizabeth Prelogar set such a high standard of advocating for the government, that no one on tRump's "bench" would remotely approach her skill and deftness, least of all Sauer, as DC district Judge Tanya Chutkan slapped him about during his "defense" of tRump in the ill-fated obstruction hearings, later decided as *tRump v US*.
Curious how Sauer supports the proposition that a party-wide order against a party over which the court has jurisdiction (the government) violates Article III. If that’s true an act of Congress can’t fix it. Did they even raise it below?
Our greatest peril as a nation is being unprepared for the authoritarian underpinnings of the MAGA movement.
Teasing out the finer points of a SCOTUS argument, tragically, misses the point.
Team Trump has shown, over and over, the plan of getting the thin edge of the wedge in and then sending their MAGA hordes to make death threats to the opposition.
Team Trump only needs the veneer of Constitutionality to proceed with their plans.
Excellent. Especially since I agree.
I have to say, hearing Sauer argue on behalf of the United States is painful, not only because of the quality of his argument, but also because the Court bought his cockamamie arguments in the Immunity case that brought us here.
In the immunity case, the court gave Sauer MORE than he ever asked for, a “mistake” he seems intent on not repeating.
I think at least part of the reason they keep pushing outrageous and unprecedented arguments is that sometimes this court bites. Looked at from Tr*mp's psychology - which they've taken care this time to replicate throughout the administration - they think the court are suckers. The other part is that their experience in the political realm has shown them that if they stick to the outrageous and unprecedented, gravity can pull the middle of the debate quite far in their direction, so they apply that approach to every other realm. No one is really countering this very effectively.
The Court has the power, if it has the courage or at least self-awareness, to deny Trump's request, find the DOJ in criminal contempt for ignoring the judicial branch rulings, and also overturn its previous decision on presidential immunity. The Court can stop the Coup, if it dares.
Justice Kavanaugh, in concurrence to today's 7-2 ruling against trump (AARP et al v Trump, 605 U.S. __ (2025)), pleads for cert and full review of using the Aliens Enemies Act. https://s3.documentcloud.org/documents/25944899/24a1007-order.pdf
I agree with you that the Court brought this on themselves ("the justices knew the Justice Department’s arguments here when they decided to set this shadow-docket request for oral argument.").
Also, Sauer's argument that Art III courts do not have the power to issue universal injunctions was not persuasive.
The Court should have insisted on a merits review before addressing universal injunctions in this case. As was pointed out (Kagan?), it is the Court's job to say what the law is. The Constitution, the birthright statute and the birthright cases couldn't be clearer.
Hmm, perhaps the tactic of flooding the field might work with the public … not so much with SCOTUS. But what would happen if Trumpers used a scalpel instead of a hammer?
"In addition to a bad case, Sauer is a less-than-stellar advocate and this argument exemplified where he falls short of past solicitors general, even from Trump’s first administration"
I once commented before tRump 2.0 launched that former SG Elizabeth Prelogar set such a high standard of advocating for the government, that no one on tRump's "bench" would remotely approach her skill and deftness, least of all Sauer, as DC district Judge Tanya Chutkan slapped him about during his "defense" of tRump in the ill-fated obstruction hearings, later decided as *tRump v US*.
Silly me—turns out a scalpel is too slight an object for Sauer; he only recognizes barnsides.
Thank you for this clear and concise summary of arguments that felt like they went in every direction at once.
Curious how Sauer supports the proposition that a party-wide order against a party over which the court has jurisdiction (the government) violates Article III. If that’s true an act of Congress can’t fix it. Did they even raise it below?
I would limit this type of injunction to DDC.
I loved the KBJ comment, calling tRump’s effort “Catch me if you can!”. Loved the book AND movie.
Thank you Chris.
Our greatest peril as a nation is being unprepared for the authoritarian underpinnings of the MAGA movement.
Teasing out the finer points of a SCOTUS argument, tragically, misses the point.
Team Trump has shown, over and over, the plan of getting the thin edge of the wedge in and then sending their MAGA hordes to make death threats to the opposition.
Team Trump only needs the veneer of Constitutionality to proceed with their plans.
Just wrote this related article:
https://open.substack.com/pub/hermanforwood/p/birthright-citizenship-and-the-populist?r=oy1dn&utm_campaign=post&utm_medium=web&showWelcomeOnShare=true
There was an illuminating discussion of this in Politico between two anti-Trump lawyers: https://www.politico.com/news/magazine/2025/05/15/district-courts-nationwide-injunctions-supreme-court-trump-00342252