by Stephen Kaus on June 30, 2025 (BeyondChron.org)

The Supreme Court will often have final word
Last week, the United States Supreme Court continued its support of President Trump’s march toward fascism.
On Friday, it struck down several nationwide injunctions against Trump’s executive order attempting to narrow birthright citizenship granted by common law since the birth of the country and affirmed by the Fourteenth Amendment.
The Court limited district and appellate courts to giving relief only to the parties before them, giving oxygen to Trump’s battle against trial courts enforcing the Constitution.
Last Monday, the Court contradicted its previous guarantee of due process to all deportees by allowing Trump to summarily ship people to dangerous places to which they have no connection at all.
Justice Sondra Sotomayor wrote desperate and heart-felt dissents in both cases. She decried the majority acting “shamefully” in the birthright citizenship case and its “absurd” allowance of third country removal without meaningful notice and a hearing.
The Birthright Citizenship Case
The court did not actually rule on Trump’ cramped definition of birthright citizenship.Instead, the court bars, with a few gaping loopholes, nationwide or “universal” injunctions from lower courts. Trial and appellate court actions are now limited to giving complete relief to the actual plaintiffs before them, which generally, but not always, would fall short of a nationwide injunction.
Nationwide injunctions are a recent phenomenon that Republicans happily used, along with filing in single-judge right-wing courts, to curtail Democratic programs such as vaccine mandates, Obamacare and DACA amnesty as well as to ban the abortion drug mifepristone.
The immediate effect of this decision is to nullify approximately 53 injunctions issued against various Trump policies, eliminating a powerful weapon against Trump overreach.
The actual dispute in this case concerns Trump’s attempt to alter the longstanding concept of birthright citizenship. In an 1897 case, United States v. Wong Kim Ark, the Supreme Court confirmed that under the Fourteenth Amendment and English common law before that, children born on United States soil are U.S. citizens. As the law has been interpreted for hundreds of years, this gives citizenship to children of non-citizen immigrants.
So, settled, right? Not to right-wing racist Ann Coulter and disgraced insurrection lawyer John Eastman. They made up an argument that birthright citizenship does not apply to children of undocumented immigrants.
This fringe theory found a customer in Donald Trump. On Inauguration Day, he signed an order eliminating citizenship for children of mothers “unlawfully present” or lawfully but “temporarily present” in the United States unless the father is a “United States citizen or lawful permanent resident.”
Courts have had no problem finding this order to be both beyond the President’s power and incorrect. Federal district courts in several states immediately issued nationwide injunctions preventing enforcement of the Order.
For example, conservative Reagan appointee Judge John Coughenour in Washington called the Order “blatantly unconstitutional.” Judge Coughenour accurately declared that “it has become ever more apparent that to our president the rule of law is but an impediment to his policy goals.”
The nationwide injunctions issued against Trump’s order were appropriate because of the chaos that would be caused by having one citizenship rule in the blue plaintiff states and another in the remaining red states. The state plaintiffs cited the administrative impossibility of administering benefits requiring citizenship. Moreover, some of the plaintiffs were organizations with members spread across the country, which also would justify nationwide relief for those members.
Seven courts struck down the Order, none upheld it.
Sensing that its position on the merits was untenable, the government’s “emergency” appeal to the Supreme Court did not even argue that Trump’s order was correct. Instead, it only took on the legality of nationwide injunctions.
The Court played along, studiously refusing to deal with the constitutionality of Trump’s Order. Instead, the Court went procedural, decrying “universal” injunctions and requiring the district courts to limit their injunctions to giving relief to the actual parties.
The decision written by Amy Coney Barrett has been described as reading like a Trump press release. However, the court not only avoided the merits of Trump’s alteration of the Constitution, but also punted on whether a class action could provide nationwide relief or whether a nationwide injunction is justified to give complete relief to the plaintiff states or to nationwide organizational plaintiffs.
Most obviously, a nationwide ban is needed to give relief to the 22 states, District of Columbia and City of San Francisco, all of whom are plaintiffs. Otherwise, the resulting patchwork chaos would mean that babies born to undocumented people would be citizens in the plaintiff states but not in the 28 other states.
States administer federally funded benefits such as Medicare and food stamps (SNAP) that require social security numbers that are only issued to citizens. Although all children would be considered eligible citizens in the plaintiff states, children born in non-plaintiff states would not have the social security numbers required to receive those benefits.
What about a baby born in non-citizen states to parents who live in one of the citizenship states. A child whose mother lives near a border may be born in one state or the other depending which hospital is easier to reach. Also, parents may be traveling or move. Which law applies?
Moreover, what if the immigration status of the mother can’t be readily determined? Is a passport now a requirement for a hospital admission to have a child? If the mother is undocumented and the child’s citizenship depends on the father, how is his status to be determined? Maybe the father is not even there.
For that matter, how is the identity of the father to be determined. Does he have to take a paternity test?
This is a mess. The court specifically avoided whether the burden on states to figure this all out justifies a nationwide injunction.
Additionally, the court left open the possibility of nationwide class actions. This could provide eventual relief, but class actions are slow, and the nationwide injunctions provided quick remedy to Trump’s improper acts.
Deportation to Third Countries
The third country removal decision last Monday gave an appalling amount of power to the President to deport immigrants to countries with which they have no connection. It stayed orders from Judge Brian Murphy of the Massachusetts District Court that the immigrants be given a “meaningful opportunity” to contest their removal to the specific country.
If you wonder how the Court managed to get briefing and argument finished in time to decide the issue already, the answer is that it didn’t. The case was placed on its emergency or “shadow” docket and decided with the benefit of only an emergency petition and hasty responses from the plaintiffs and other supporting parties. The opinion gives no reasons for the stay of Judge Murphy’s order.
The use of the shadow docket deprives the decision of credibility and leaves us all in the dark on what procedural or substantive issue was the basis of the court’s action.
“Third country removal” is permitted by statute if deportation to the country from which the immigrant came is not possible. However, an international treaty implemented by the Foreign Affairs Reform and Restructuring Act (FARRA) passed by congress prohibits sending any person “to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
The Trump administration has promulgated two sets of regulations purportedly implementing FARRA. For good reason, Judge Murphy said they are.
The key problem is Trump’s twisted understanding of the FARRA’s requirement of notice and a hearing. The government contends that “credible assurances” from the third country that deportees would not be persecuted or tortured eliminates any individual due process requirement.
Even in the absence of such assurances, the government contends that, for example, if someone is woken up at 6 a.m. and told that they are going to South Sudan and they don’t immediately contend that they would be tortured there, off they go in an hour or two.
As a result, the government attempted to deport immigrants from Latin America to Libya and South Sudan, both of which are in the middle of shooting wars between the government and militias. Each country is listed as “Level 4: Do Not Travel” by the State Department. The deportees had no chance to object.
An additional issue in this case is the government’s serial defiance of Judge Murphy’s orders not to remove people while their cases are pending. This is how six deportees ended up living in a shipping crate in South Sudan while wrangling over their cases continued.
The government does not have the “clean hands” that has always been required for equitable relief.
A showing of irreparable injury is also required to obtain equitable relief. The government is well short of that.
The administration rationalizes its behavior by claiming that the involved immigrants are the “worst of the worst.” This does not justify abandoning due process and, for that matter, is not true. Two of the named plaintiffs have no criminal record at all according to plaintiffs’ counsel.
The government also raised several technical defenses that Justice Sotomayor says are comparable to an arsonist calling 911 and objecting that the fire department is violating noise ordinances.
Regardless, it was only a month ago that a unanimous court stood up for due process. It is sad that it has beaten such a hasty retreat in the service of Trump.
Stephen Kaus is a retired Alameda County Superior Court Judge. @stephenkaus on X. @stephenkaus.bsky.social on Bluesky.
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