The Chief's Blue Plate Special On Birthright Citizenship: A Second Helping Of DACA Reliance Interests

If the Court's can't coalesce on a single rationale, we might see a redux of Department of Regents.

On Sunday, I predicted that the Supreme Court will avoid resolving the various nationwide injunction issues in the birthright citizenship cases. Instead, the Court would issue a merits ruling based on the Fourteenth Amendment to make the case go away.

A few colleagues said I was wrong, and that the merits issue was not adequately briefed. I'm not so concerned. The Court can always restore the case to the docket for the fall and order supplemental briefing. Injunctions are in place now, so time is not of the essence.

Another colleague suggested that the Court will find the national injunctions are improper, but suggest that the lower courts could certify nationwide classes under Rule 23. I suppose that option is preferable, since we would avoid the murky equitable power to issue nationwide injunctions. Rule 23 at least has the imprimatur of Congress (assuming the Rules Enabling Act is constitutional). But as a practical matter, courts are already certifying national classes in ex parte TRO hearings. I am skeptical there would be much of a practical difference if the Court goes down that road. The emergency docket will still remain active.

What will the Court do? I was pondering this question today, and I think I figured out the Chief's play. We will get a second helping of his blue plate special from the DACA case. The Court will simply find that the executive branch failed to adequately consider the reliance issues with suspending birthright citizenship. Specifically, the order did not explain how the policy would affect parents and their unborn children. Roberts can even cite Dobbs!

I know that the President's executive order is not subject to the APA, and Department of Regents is not directly on point. Details. The Chief can fashion some equitable principle based on reliance interests and hardships, and BAM! The Court then will never need to decide the meaning of the Citizenship Clause. Indeed, this punt would likely eliminate the issue for the foreseeable future.

My predictions are not very accurate, so please take this post with a heaping of salt.

Comments

[David Nieporent]

My predictions are not very accurate, so please take this post with a heaping of salt.

The important thing is that you got to talk about yourself a whole bunch, and also take some potshots at Roberts.

[Riva]

If Roberts wants to play with politics, then he earns the right to be criticized like every other politician.

[MaddogEngineer]

This is one time I will proudly assert that IANAL (because the interlocking legal principles are somewhat beyond the layman), but this is not a terrible Blackman take here.

Ignoring the usual self-importance fluff.

Trump's executive order will not prevail. I'm just unsure how. This seems plausible, simultaneously stopping the national injunctions while keeping the EO at bay while the merits are litigated.

[jb]

I'm also not a lawyer, but think this is a pretty terrible Blackman take. To put it in engineering terms: if you were to think about the odds that he's right here, epsilon would probably be a pretty good placeholder value.

[MaddogEngineer]

It was also interesting and timely that C-SPAN rebroadcasted last night the chief's appearance at Georgetown Law which I think was earlier in the the day. Only caught the tail end Q&A seated in armchairs, but the questioner was very good. Near the end asked about the principles of applying stare decisis.

[Stuart]

A Heaping of Something!

[cannpro]

Why does JB keep talking about the Chief's "play"? The Chief is but one member of the court. He can't choose how to "play"; that's the full court's job.

[MollyGodiva]

The court would be wimps by ducking the merits. Easy case. Also ducking the case would show they are afraid of Trump.

[David Nieporent]

The court would be wimps by ducking the merits.

No, they would be judges. The merits are simply not before the Court at this time.

[MollyGodiva]

Then the court is already wimpy by dodging the merits. They decide the issues they hear.

[David Nieporent]

Then the court is already wimpy by dodging the merits. They decide the issues they hear.

They do not; the litigants do. (I mean, they can refuse to address something the litigants ask them to, but they can't just address something the litigants haven't asked them to.)

[not guilty]

The issue here is whether "emergency" applications for a partial stay of preliminary injunctions issued by three District Courts should be granted or not. https://www.supremecourt.gov/orders/courtorders/041725zr1_4gd5.pdf No matter how much Professor Blackman speculates, the merits of what the Fourteenth Amendment means are not before SCOTUS at this stage of proceedings.

I surmise that the Court will give some criteria going forward as to what does or does not constitute an "emergency" worthy of SCOTUS attention. As the brief of the States of Washington, Arizona, Illinois and Oregon succinctly states, "Being directed to follow the law as it has been universally understood for over 125 years is not an emergency warranting the extraordinary remedy of a stay." https://www.supremecourt.gov/DocketPDF/24/24A885/354760/20250404111851793_24A885_PlaintiffStates_ResponseEmergencyStay.pdf

[jb]

I'd find it fairly amusing if the outcome here was, rather than limiting the ability of district courts to issue nationwide injunctions instead the Trump administration ended up limited in trying to ram its crazier ideas through the court system.

Then again, maybe it wouldn't be that surprising since the administration seems to have chosen the worst possible vehicle to try to attack nationwide injunctions.

[ReaderY]

The precedent on birthright citizen is so straightforward and so likely to be agreed on overwhelmingly that it strains credulity to flatly ignore legal merits and instead assassinate the Chief Justice’s character by fabricating political and psychological reasons for why he will rule way you know the law requires him to.

This kind of rhetoric is not the rhetoric of law professors. It is more the rhetoric of character assassins, who shield their guilty consciences over only being in it for themselves by trying to claim everyone else is to. That’s why people who have principles and spines tend to be the special targets of these types’ character assassination efforts.

Like eunichs who despise verrility, like the blind who despise people with vision, like the fox and the sour grapes, people like Mr. Blackman are jealous of people like Chief Justice Roberts for having something they know they don’t have and also know, somewhere inside, that they envy and want.

[M L]

The original meaning of the clause is so straightforward, at least going by the Congressional debates, that it strains credulity to expand the holding of WKA (presumably the precedent you are referring to) beyond its original application to include those are not domiciled in the U.S.

[David Nieporent]

The original meaning of the clause is so straightforward, at least going by the Congressional debates, that it raises the question of why you're lying about it.

But also, everyone subject to Trump's so-called EO is domiciled in the U.S.

[M L]

I invite everyone to consult the source and make their own conclusions about who is lying.

https://www.congress.gov/congressional-globe/congress-39-session-1-part-4.pdf

[ReaderY]

Where exactly does the 14th Amendment use the word “domicile”?

[Brett Bellmore]

I agree that Trump is almost certainly wrong on birthright citizenship as a matter of constitutional law. And I only say "almost" because there's a non-zero chance of the Court buying into any stupid argument, if they like the policy outcome.

But they don't like the policy outcome here, so it ain't happening.

But no reliance interests should attach to illegal immigration, or the gains from committing it. That should not be a factor here, and there's no good reason to bring up reliance interests, save to avoid ruling on the meaning of the birthright citizenship clause, and the Court SHOULD rule on that!

[M L]

Any change along the lines of what the order contemplates will be prospective.

So the reliance interests here are those of (A) illegal immigrants who broke the law in reliance on the promise of a reward for breaking the law, the reward being citizenship for their children that have not been born yet, and (B) birth tourists who have booked their flight and maternity hotel with plans to fly here for birth. Also maybe (C) those on other temporary visas who had ulterior motivations of obtaining citizenship for their children.

[David Nieporent]

Any change along the lines of what the order contemplates will be prospective.

No. I mean, that's Trump's purported scheme, but… no. If the 14th amendment didn't make the people subject to Trump's EO citizens, then it didn't make anyone between 1868 and 2024 citizens either. Nothing did, and so they're not. If Trump were revoking citizenship, then he could decide to do so only prospectively.¹ But if he's correct, then the prior ones were just never citizens at all, and you can't retain something you never had.

¹But of course you'd have to be more gullible than someone who falls for the "The IRS is calling and insists that you send $10,000 in Amazon gift cards immediately or you're going to jail" scam —repeatedly — to think that he wouldn't immediately apply it retroactively to all those 100 million illegals that Biden imported into the U.S.

[cpltunny]

"Rule 23 at least has the imprimatur of Congress"

So does Section 706 of the APA

[not guilty]

The Administrative Procedures Act has been construed not to apply to most deportation actions, while habeas corpus review remains available. Heikkila v. Barber, 345 U. S. 229, 234−235 (1953).

[The Turtle Dove]

I confidently predict that this particular (well-chewed) three-dollar steak will not be the blue plate special. Among other reasons, equity is unavailable when there is a remedy at law.

Mr. D.