Krishnadev Kalamer (4:16)

Thanks. Good morning, Steve.

Steve Inskeep (4:17)

This strikes me as a significant, significant decision because there have been so many nationwide injunctions.

Krishnadev Kalamer (4:23)

Yes, there have been a record number of nationwide injunctions this year. The Trump administration has really railed against that and has that these lower court judges are exceeding their authority in part. The conservative supermajority of the Supreme Court appears to have agreed this morning in a 6 to 3 opinion. We're still going through it. But the court has granted Trump's request to narrow injunctions against his birthright citizenship executive order, which, of course, he signed on his very first day in office this year.

Steve Inskeep (4:52)

I want to work through some of the background here. First, nationwide injunctions, they're not something that was invented this year. Right. This is something that has happened for a while.

Krishnadev Kalamer (5:01)

This has been bedeviling presidents of both political parties for the last 20 or 30 years. I heard President Obama rail against it. Certainly President Trump in his first term and former President Joe Biden did, too, because when Congress is not doing very much, Steve, presidents are forced, in their view, to take executive actions to accomplish some of their policy agenda. And this practice of nationwide injunctions has allowed people to challenge some of those presidential actions and allowed courts to block them, at least temporarily.

Steve Inskeep (5:32)

Okay. So presidents of both parties unhappy about this. I'm having a memory of judges in Texas ruling nationwide against aspects of Obamacare, for example. But it's become especially controversial this year because in the view of multiple district court judges, the Trump administration has wildly exceeded its constitutional authority again and again and again on issue after issue, and has faced, I believe, a record number of nationwide injunctions against it. Is that fair to say?

Krishnadev Kalamer (5:59)

Dozens and dozens. The Solicitor General, John Sauer, talked about that and talked about how it's basically perverting the ability of the executive branch to do what it needs to do and what it believes it was elected to do in the US and this.

Steve Inskeep (6:12)

Became, I don't want to say solely a talking point, but definitely a talking point on the, on the right among Republicans, that this is judges exceeding their authority. And it's an idea that the Supreme Court then took up and considered here.

Krishnadev Kalamer (6:24)

Interestingly enough, judges, lower court judges appointed by presidents from both political parties have moved to block some of President Trump's moves this year. The Supreme Court majority appears to have been a little bit frustrated with that, at least in its opinion today. And interestingly enough, you know, the court today did not opine about whether this birthright citizenship executive order itself was unconstitutional, but it's making a decision based on the procedure and how lower court judges have been acting generally.

Steve Inskeep (6:55)

Yeah. Two things to follow up on there. First, you said a 6 to 3 ruling. We know that it's a 6 to 3 supermajority. Did it go along the ideological lines? It's the conservatives against the liberals here.

Krishnadev Kalamer (7:05)

It absolutely did. The dissents we're seeing are from Justices Kagan, Sotomayor, and Jackson.

Steve Inskeep (7:10)

And second, you just said a very important thing, because as I'm reading this, the initial read of the case, it appears to say that the Supreme Court overturns the nationwide injunction to the extent that it may exceed a court's authority, which sounds like the court ruling stays in place. Birthright citizenship is, in fact, the rule. And the Trump administration is, in fact, blocked, but perhaps only in the district of the judge who made the particular ruling. Is that how you see this?

Krishnadev Kalamer (7:40)

We're still teasing it out right now, and it's a little bit nuanced, Steve, as to the practical implications. But we did hear in the oral argument, attorneys for the states involved talk about how that if this birthright citizenship order were allowed to go into effect, it would mess up entitlement programs in states and the entire systems by which babies are recognized, the birth certificate process and eligibility for state and federal insurance programs and the like. So it's quite a serious set of consequences. For people.

Steve Inskeep (8:12)

Okay. Okay. And there's an additional detail. I'm being sent details. Our Washington editor, Krishnadev Kalamer is part of our team. His eye falls on this line. The principal dissents analysis of the executive order. So we're getting into the dissent now, says that this is premature. Wait a minute. Let's try to understand this. Essentially, it's saying this has nothing to do with birthright citizenship. They do not rule on the constitutionality or unconstitutionality of limiting birthright citizenship. That's what this says.

Krishnadev Kalamer (8:43)

Yes. The court is not deciding today on the legality of the birthright citizenship executive order in and of itself. This decision concerns the power of lower courts to block parts of President Trump's agenda and the considerations under which they can do so.

Steve Inskeep (8:59)

Okay, Carrie Johnson, stay with us. I want to bring other voices now into the conversation. We've just been reading of this Supreme Court ruling that appears to leave alone for the moment the question of birthright citizenship and whether the Trump administration can limit it. But it does limit the power of district court judges to block the administration. NPR's Domenico Montanaro covers politics, and he's on the line. Domenico, good morning.

Kerry Johnson (9:23)

Hey, good morning.

Steve Inskeep (9:24)

What do you make of this?

Kerry Johnson (9:25)

Well, I think it's important, number one, to figure out just how much the Supreme Court says that the lower courts are able to be able to slow things down within the administration. But it's clearly the court's conservatives are sending the message here that they think that the, that the right of the lower courts is not to, you know, block what the executive branch wants to do. And, you know, you could really argue that the second Trump term has really been about Trump trying to test the limits and get rid of obstacles. And the courts have been the one thing, one of the last things sort of standing in the way of a number of things that Trump wants to do. This could open the floodgates for Trump to be able to go forward with any number of things that he wants to do, you know, whether it's, you know, these very broad, sweeping executive orders that we've seen, you know, that have really tested the limits to anything else that really the Trump administration wants to try and do. And I think we're seeing this second term now sort of test the limits for what the separation is, a separation of powers are. Exactly. And if there's one thing that the Supreme Court has, you know, at least some feeling of jurisdiction over, it's the courts. And it clearly is sort of sidestepping this issue of birthright citizenship, which was the sort of key part the crux of this case in the first place. But now this could actually mean that the Trump administration, you can sort of grease the wheels on a lot of things that it wants to do. And we know that they've certainly wanted to do a lot of broad measures.

Steve Inskeep (10:54)

Well, here's one of our questions or one of everyone's questions now is how will this apply to many, many cases across the country? And let's bring in yet another voice to discuss that. Amanda Frost is a legal scholar at the University of Virginia. She followed the oral arguments on this case and is now with us reading in the decision. Good morning to you.

Kerry Johnson (11:13)

Good morning.

Steve Inskeep (11:14)

So how sweeping do you think this decision is in its.

Kerry Johnson (11:17)

Yeah, I think this is fairly momentous, not because it addresses the substance of the Birthright citizenship executive order. It doesn't do that. But because it addresses this question of universal or nationwide injunctions, which are an essential tool for those challenging lawless executive action or executive action, I think, exceeds executive power. And as a result of this decision now, while individual plaintiffs could win relief, each and every person affected would have to sue in order to get relief. And, and in other words, an administration that's violating the law could lose a case and yet nonetheless apply the policy across the nation.

Steve Inskeep (11:54)

I want to tease that out for a moment, Amanda, and make sure that I understand what you're telling me. Say the administration in this instance denies citizenship to a thousand people who were born in the United States. One of them sues and the judge says, well, that was ridiculous. You obviously have a constitutional right to citizenship. Your citizenship remains the same. The other 999 still have their citizenship denied unless they individually sue.

Kerry Johnson (12:21)

Yes. And the problem there is, of course, it's going to overwhelm the lower courts. It's going to lead to extraordinary expense and chaos and harm to the individuals involved. At the oral argument, Solicitor General Sauer was asked by Justice Gorsuch, what's your plan for implementing this executive order in 30 days if we rule in your favor? And he said, well, we're going to work on that. He didn't have one. So I predict it will be very difficult for the government. But of course, for the 999 people who didn't file suit, who have expecting babies and don't know if their children.

Steve Inskeep (12:54)

Will be citizens, I am, I was following some of the oral arguments, though, and I want to ask about an aspect of this. Wasn't there discussion of a kind of lawsuit that people will be familiar with, a class action suit where one person or 10 people file, but they say we're doing this on behalf of a whole class of people. Couldn't that be an answer here?

Kerry Johnson (13:12)

Yes, and I think that is a partial answer. And will undoubted be what plaintiffs lawyers do in the future. Seek to have more classes certified. But class actions cannot be certified in every case. Some cases don't qualify. The Supreme Court's prior precedents have limited the availability of class actions. So they're not a form of relief in every case. I do want to add though that the court did leave on remand for the lower courts to decide the question of what kind of relief the states as parties would need. So states sued as well as individuals and states said we need broader relief than just for the residents of our state because people move across state borders. And the court did recognize that was a problem. And so that remains to be decided by the lower court.

Steve Inskeep (13:52)

Wow. I'm now trying to figure this out. Someone might be denied citizenship in Texas and they move to California and they're a citizen now, and then they move to Wyoming and they're not a citizen. Is that what you're telling me?

Kerry Johnson (14:03)

Yes, that is exactly what I'm explaining. And in fact what the Solicitor General of New Jersey told the Supreme Court at oral argument. And the Supreme Court clearly listened because it did remand that piece of the case.

Steve Inskeep (14:13)

It did remand that piece of the case. So some of this, it's very complicated. Some of this is not decided. We just don't know how it's going to.

Kerry Johnson (14:21)

Yes. And I should add, I have yet to read all 119 pages of the opinion at 10:15 in the morning. So. But that's my takeaway at this point.

Steve Inskeep (14:29)

I want to ask about there's going to be clearly some skepticism about this. And I have a couple of questions about that. And the first is the timing. As Kerry Johnson astutely pointed out, presidents of both parties have been frustrated by these nationwide injunctions, these universal injunctions. But some people I'm not here to criticize motives because I don't think that's fair. You gotta build on evidence. But some people will raise the question and notice that the conservative supermajority decided to act on this problem just as it was interfering with the president from their party.

Kerry Johnson (15:03)

Yeah, I won't comment on motives either. I will say that it's always the executive branch is never going to like universal injunctions because they're all whoever is in power, whether it be a Democrat or Republican, a universal injunction stops them from implementing their policies. So the executive branch, as a branch, always has an interest in limiting them. I would like to think courts might have realized that it's actually in their branch's interest to have some form of collective relief because the other thing that's going to happen is a flood of lawsuits as each and every individual affected will file suit if they don't qualify for a class action.

Steve Inskeep (15:33)

Is that going to reduce the effectiveness of the courts? Aside from reducing the power of an individual district judge, does this make the entire court system less effective in responding to an executive that seems to go beyond its power?

Kerry Johnson (15:45)

Yes, I think it's limiting or minimizing the role of courts in checking executive power. This is another decision that expands executive power. And right now that's benefiting a Republican president. In the future it could benefit a Democratic president, but it's at the expense of the legislative branch, whose laws might be being violated and the judicial branch, which is supposed to keep the executive in check.

Steve Inskeep (16:04)

I want to read a quote from one of the dissents and then we're going to go to Kerry Johnson, who is still with us. This is Justice Sonia Sotomayor, one of the three liberals who dissented from this ruling. And the quote gets to what's going on here, what she thinks is going on here. The gamesmanship in this request is apparent and the government makes no attempt to hide it. Yet shamefully, this court plays along. She is pretty clearly questioning the motives of her fellow justices there, I think.

Kerry Johnson (16:34)

Yes. And obviously these three dissenters, three have been dissenting in a number of cases and they're giving full throated critiques to their colleagues here in the dissent.

Steve Inskeep (16:43)

Carrie Johnson has continued reading while we've been talking. What more are you discovering? Carrie Johnson Yes.

Krishnadev Kalamer (16:48)

Another bit from the dissent from Justice Ketanji Brown Jackson. She says the court's decision to permit the executive branch to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law. She's pointing out, in her view, the problem that everyone would have to go to court individually and sue or band together in some kind of class action to, to accomplish some relief from some of these executive orders. And in her view, that is a disaster for the courts and the rule of law, too.

Steve Inskeep (17:21)

Amanda, I want to try to expand this out. I'm testing your memory here a little bit because there have been so many dozens and dozens of nationwide injunctions. But off the top of your head, what are some of the things besides birthright citizenship where this Might have immediate effect.

Kerry Johnson (17:35)

Oh, you mean in this current administration? Because I was going to say that there are plenty of examples of nationwide injunctions against President Obama and President Biden's policies.

Steve Inskeep (17:42)

Policies, things that are active, active live issues right now with the Trump administration.

Kerry Johnson (17:47)

Yes. So there are broad injunctions in place in a number of different immigration related cases. So cases involving the Alien Enemies Act, I believe there are injunctions in place challenging some of the executive branches attempts to defund various federal programs. So these are all examples of nationwide injunctions that have been used to curb executive branch policies, particularly ones issued through executive order, where we have a president unilaterally making changes. And that was true under Biden and Obama as well.

Steve Inskeep (18:19)

Have you been surprised to the extent. Surprised by the extent to which the court has deferred to the executive here? Not as much as the Trump administration has wanted. The court has ruled against the administration on a number of occasions, but nevertheless, the administration has pushed the boundaries here successfully a number of times.

Kerry Johnson (18:35)

I'm not surprised or certainly not shocked because many of these justices worked in the executive branch. They tend to favor the executive branch in their rulings. And this is not the first time they've issued a decision that gives the executive branch more leeway than might have been predicted or might have been viewed as the doctrinally correct solution. So I'm not shocked. This is a pro executive branch court.

Steve Inskeep (19:01)

Carrie Johnson is also thinking about how this might affect other cases and other controversies.

Krishnadev Kalamer (19:06)

Yeah. The import of the court's majority ruling today is that many more people are going to have to take their cases to court individually. And it comes at a time when President Trump and the White House have been targeting major law firms with executive orders. And some of the firms have agreed to do pro bono work that would support the Trump administration and its priorities. And so, so the idea that there could be limits on pro bono work at the same time that the Supreme Court is saying many more people have to go to court, many more people who are vulnerable and maybe don't have a lot of resources or low income. This could put further strain on the legal system, which is already under enormous strain this year with hundreds of cases challenging Trump and what he's done so far.

Steve Inskeep (19:55)

I'm also thinking about from a practical sense, this underlines the power of the government and further empowers the government, which if you're in favor of the administration, you're going to like. And if you're not in favor of the administration or worried about the long term effects, you might not when we talked about that case where 1,000 people have to sue individually, the government, the administration, for free, on our taxpayer's dime, really can work all of those cases, can assign lawyers to all of those cases, but on the side of the plaintiffs, the people who would sue administration, they have to go and find 1,000 lawyers to work for them.

Krishnadev Kalamer (20:28)

Yeah. And now many of the major law firms around the country who have been doing a great deal of pro bono work have basically signed deals with the Trump administration to limit or cabin the parameters of the sort of work that they might do. The other thing, Steve, which is a trend we've been seeing across the Supreme Court over time, is giving more power to the executive branch and giving more power to themselves. Today, this high court majority took away power or limited power from district judges and appeals court judges and gave more power to the high court itself.

Steve Inskeep (20:59)

Let's get a little bit more of the political context from Domenico Montanaro, who is still with us. Domenico, this is fundamentally, I mean, we've ended up in this rather rarefied place of discussing the exact power of district judges, but this was a case about a visceral issue. American citizenship, part of this broader issue of immigration. What is the context of that? How popular has the president's approach to immigration been up to the now?

Kerry Johnson (21:24)

Yeah, it's gotten less popular, frankly. I mean, he had been. It had been one of the more popular things that he had been doing at the start of his administration. You would see people, you know, relatively, you know, relatively high, saying, you know, 50, 54%, saying that. That they approved of his handling of immigration. But as these sort of cases of more extreme examples of deportations or masked arrests with un, unnamed, unmarked, unidentified law enforcement officers, you know, pulling people off the streets, that has seemed to sort of dampen down what have been people's feelings about how Trump is handling these deportations? Because there's a spectrum. People are very much in favor of deporting hardened criminals, but not as much, you know, the landscaper or the Home Depot worker without, you know, without a, you know, a criminal record. The other thing here, in thinking more directly about this case, when it comes to public opinion, you know, we've seen people feel that, given how much the Trump administration has tried to do. There was an AP NORC survey, for example, last month that found that 57% of people felt that Trump had gone too far in using presidential power to achieve his goals. Only 32% said that they thought that Trump had been about right in how much power that he decided to use so so you already have Trump sort of swimming upstream a bit with his base certainly, well, intact, thinking that he's doing the right things, but independents and Democrats largely feeling he's gone too far. And I can only think that this ruling will empower Trump to feel that he can go even further.

Steve Inskeep (23:04)

Amanda Frost, I want to ask about something that is a seems a little bit abstract, but seems significant. There was a concern during oral arguments that the following thing would happen. The administration gets sued in district court. They lose because they obviously deserve to lose on whatever the issue is. In theory, that should be appealed out to the Supreme Court and become a nationwide judgment. But the administration just never bothers to appeal the decision. They lose. And so they have only lost the one case and then they win the other 999 by default. Does this ruling appear to do anything about that concern or close the door to that?

Kerry Johnson (23:37)

Not that I can see. And that was the line of questioning by Justice Elena Kagan where she pointed out that if an executive branch wants to avoid having their even clearly unconstitutional executive order be stayed or stopped by courts, all it has to do is refuse to appeal a loss to the Supreme Court of the United States. And unless and until they do take that appeal, they will literally win by losing. They could lose every single case in a district court, never take an appeal, and continue to apply the policy to everyone without the wherewithal to sue. Class actions might be a solution, but they are not available in every case.

Steve Inskeep (24:12)

Carrie Johnson, you get the last word.

Krishnadev Kalamer (24:14)

Yeah. You know, the administration and Solicitor General John Sauer told the Supreme Court during oral argument in this case that the administration would respect the judgments and opinions of the Supreme Court. It's held out some questions about the lower courts, and now we're going to find out if the administration actually is going to do what John Sauer said it was going to do. The Supreme Court is the final word, but it's an open question how long it may take and in what form. Some of these legal challenges to Trump's executive orders and other policies, we'll get there.

Steve Inskeep (24:46)

So counting on the good faith of the Trump administration and also because decisions last counting on the good faith of whoever might be president next, I suppose. Okay. That's the ruling. Universal injunctions likely exceed the authority of district courts, according to the United States Supreme Court. There'll be much more to discuss about this on NPR News. Thanks to everybody who joined us, NPR's Carrie Johnson, Domenico Montanaro, and University of Virginia law professor Amanda Frost. And that's a special edition of Up first for this Friday, June 27, edited by Krishnadev Kalamer, Natalie Winston, Ali Schweitzer and Lisa Thompson. It was produced by Claire Murashima, Katie Klein and Lily Quiros. Our technical director is Carly Strange and our executive producer is Jay Shay. Join us again tomorrow.

Domenico Montanaro (25:55)

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