The Volokh Conspiracy
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Neutral Principles for Birthright Citizenship on the Emergency Docket
On Thursday, the Acting Solicitor General filed emergency applications in three birthright citizenship cases (24A884, 24A885, and 24A886). These are appeals from the First, Fourth, and Ninth Circuits. The government has sought only a partial stay. First, the SG argues that the universal injunctions improperly granted relief to non-parties. Second, the SG contends that it was not proper to grant relief to the states. Third, the SG argues that the lower-court injunctions are overbroad insofar as they prevent the Executive Branch from even developing implementation guidance.
Even measured against other universal injunctions, those at issue here stand out. The universal injunctions here extend to all 50 States and to millions of aliens across the country—even though tailored interim relief for the plaintiffs to these suits would fully redress their alleged harms. The courts granted these universal injunctions to States who plainly lacked standing to raise Citizenship Clause claims—defying the bedrock principle that States (like other litigants) may assert only their own rights, not the rights of third parties.
The government does not seek any remedy based on a likelihood of success on the merits. Rather, the "modest" relief sought is purely procedural.
At various junctures, five members of the Court have criticized nationwide injunctions. The brief doesn't just list the name of the authoring justice. The brief names-names:
Universal injunctions transgress constitutional limits on courts' powers, which extend only to "render[ing] a judgment or decree upon the rights of the litigants." United States v. Texas, 599 U.S. 670, 693 (2023) (Gorsuch, J., joined by Thomas and Barrett, J.J., concurring in the judgment) (citation omitted). Universal injunctions are also incompatible with " 'foundational' limits on equitable jurisdiction." Department of State v. AIDS Vaccine Advocacy Coalition, No. 24A831, slip op. 7 (2025) (Alito, J., joined by Thomas, Gorsuch, and Kavanaugh, J.J., dissenting) (citation omitted).
The brief favorably cites Brackeen for the proposition that states lack standing to assert the rights of third parties:
The courts granted these universal injunctions to States who plainly lacked standing to raise Citizenship Clause claims—defying the bedrock principle that States (like other litigants) may assert only their own rights, not the rights of third parties. See, e.g., Haaland v. Brackeen, 599 U.S. 255, 294-295 (2023). . . . In Haaland v. Brackeen, 599 U.S. 255 (2023), [the Court] rejected Texas's claim that a federal statute violated the Equal Protection Clause because a State "has no equal protection rights of its own" and "cannot assert equal protection claims on behalf of its citizens." Id. at 294- 295. . . . This Court has repeatedly rejected States' "thinly veiled attempt[s] to circumvent the limits on parens patriae standing." Murthy, 603 U.S. at 76 (citation omitted); see Brackeen, 599 U.S. at 295 n.11.
The brief cites Does 1-3 v. Mills, and says this case is certworthy:
This Court has frequently granted complete or partial stays of universal orders issued by district courts. See McHenry v. Texas Top Cop Shop, Inc., 145 S. Ct. 1 (Jan. 23, 2025); Garland v. Vanderstok, 144 S. Ct. 44 (2023); Labrador v. Poe, 144 S. Ct. 921 (2024); Wolf v. Innovation Law Lab, 140 S. Ct. 1564 (2020); DHS v. New York, 140 S. Ct. 599 (2020); Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019); Trump v. Hawaii, 583 U.S. 1009 (2017); Trump v. International Refugee Assistance Project, 582 U.S. 571 (2017) (per curiam). The usual stay factors support granting similar relief here. See Ohio v. EPA, 603 U.S. 279, 291 (2024) (discussing stay factors); Does 1-3 v. Mills, 142 S. Ct. 17, 18 (2021) (Barrett, J., concurring) (same). . . . Again, the underlying issues are certworthy. See Does 1-3, 142 S. Ct. at 18 (Barrett, J., concurring). . . . This question too is certworthy. See Does 1-3, 142 S. Ct. at 18 (Barrett, J., concurring). Whether a district court may properly enjoin the Executive Branch's development and publication of policies is a weighty separation-of-powers question that warrants this Court's attention.
The brief cites Murthy v. Missouri to prevent states from asserting interests on behalf of its residents:
Universal injunctions also contravene this Court's precedents on Article III standing. "[S]tanding is not dispensed in gross," so plaintiffs must establish standing "for each form of relief that they seek." Murthy v. Missouri, 603 U.S. 43, 61 (2024) (citations omitted). . . . And in Murthy v. Missouri, 603 U.S. 43 (2024), [the Court] rejected Missouri's claim that the federal government had violated the First Amendment by censoring its citizens' speech because Missouri lacked "third-party standing" to sue for those citizens. Id. at 76.
The import here is clear. In the bad old days, Erwin Chemerinsky used to joke that if he could put Justice Kennedy's photo on the front cover of a brief, he would. But as I observed two years ago, briefs are now being directed to Justice Barrett. Will Justice Barrett deny standing to the blue states, as she did to Texas in Brackeen? Will Justice Barrett deny universal relief to the blue states, as she did to Texas in Texas? Will Justice Barrett scrutinize the blue state's claim for standing as meticulously as she scrutinized Missouri's claim in Murthy?
These would be the sorts of neutral principles that should govern on the emergency docket. Again, Justice Barrett has downplayed any assessment of the merits on the emergency docket. And the government has not made any merits arguments. Granting a party-specific injunction would ensure the parties are not injured by the policy. Of course, lurking in the background is that there are potentially millions of aliens who are not part of the litigation, whose unborn children might stand to lose birthright citizenship. Would this be a merits question? Or one of maintaining the status quo? Does the Supreme Court have the power to avoid irreparable harm to non-parties?
This is not the sort of case where discovery or percolation will make much of a difference. The facts are known, the history has been discussed for generations, and the issue is ripe for review. The only question here is whether the injunctions are too broad.
This passage from Justice Gorsuch's Texas concurrence, which Justice Barrett joined, is worth repeating:
Traditionally, when a federal court finds a remedy merited, it provides party-specific relief, directing the defendant to take or not take some action relative to the plaintiff. If the court's remedial order affects nonparties, it does so only incidentally. See, e.g., Doran v. Salem Inn, Inc., 422 U. S. 922, 931, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) ("[N]either declaratory nor injunctive relief can directly interfere with the enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs."); Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (CA2 1930) (L. Hand, J.) ("[A] court of equity … cannot lawfully enjoin the world at large."); see also Trump v. Hawaii, 585 U. S. ––––, ––––, 138 S.Ct. 2392, 2427, 201 L.Ed.2d 775 (2018) (THOMAS, J., concurring). This tracks the founding-era understanding that courts "render a judgment or decree upon the rights of the litigant[s]." Rhode Island v. Massachusetts, 12 Pet. 657, 718, 37 U.S. 657, 9 L.Ed. 1233 (1838). It also ensures that federal courts respect the limits of their *694 Article III authority to decide cases and controversies and avoid trenching on the power of the elected branches to shape legal rights and duties more broadly. After all, the "judicial Power" is the power to "decide cases for parties, not questions for everyone." S. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 421 (2017).
The brief does offer this stunning statistic:
Universal injunctions have reached epidemic proportions since the start of the current Administration. Courts have graduated from universal preliminary injunctions to universal temporary restraining orders, from universal equitable relief to universal monetary remedies, and from governing the whole Nation to governing the whole world. District courts have issued more universal injunctions and TROs during February 2025 alone than through the first three years of the Biden Administration. That sharp rise in universal injunctions stops the Executive Branch from performing its constitutional functions before any courts fully examine the merits of those actions, and threatens to swamp this Court's emergency docket.
I will repeat what I wrote last week. Lower courts are issuing universal orders with impunity, and are not granting stays to seek appellate review. There has been an inversion of Article III. I know the Court does not want to be accused of another Dred Scott (and you know that criticism is coming). The Court could have cleaned up this mess in the USAID case, but we all know how that one turned out. When you keep kicking the can down the road, eventually the can is no longer a can.
