In Trump v. CASA Incorporated (2025), U.S. Solicitor General D. John Sauer argues President Trump’s Executive Order 14160—limiting the 14th Amendment’s birthright citizenship to descendants of former slaves—faces 40 nationwide injunctions, overstepping Article III’s authority. Justices like Sonia Sotomayor and Ketanji Brown Jackson challenge Sauer’s claims, citing Wong Kim Ark and risks of inconsistent enforcement, while he defends universal relief as improper, urging individual court rulings instead. The debate hinges on whether the EO’s intent aligns with historical precedent or judicial overreach, with broader implications for executive power and federal compliance in citizenship law. [Automatically generated summary]
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Earlier this year, the U.S. Supreme Court ruled 6-3 to limit the scope of nationwide injunctions, thereby allowing President Trump to implement his executive order limiting birthright citizenship.
Up next, we'll show you a portion of the oral argument with U.S. Solicitor General D. John Sauer.
On January 20th, 2025, President Trump issued Executive Order 14160, protecting the meaning and value of American citizenship.
This order reflects the original meaning of the 14th Amendment, which guaranteed citizenship to the children of former slaves, not to illegal aliens or temporary visitors.
Multiple district courts promptly issued nationwide or universal injunctions blocking this order, and a cascade of such universal injunctions followed.
Since January 20th, district courts have now issued 40 universal injunctions against the federal government, including 35 from the same five judicial districts.
This is a bipartisan problem that has now spanned the last five presidential administrations.
Universal injunctions exceed the judicial power granted in Article 3, which exists only to address the injury to the complaining party.
They transgress the traditional bounds of equitable authority, and they create a host of practical problems.
Such injunctions prevent the percolation of novel and difficult legal questions.
They encourage rampant forum shopping.
They require judges to make rushed, high-stakes, low-information decisions.
They circumvent Rule 23 by offering all the benefits but none of the burdens of class certification.
They operate asymmetrically, forcing the government to win everywhere while the plaintiffs can win anywhere.
They invert the ordinary hierarchy of appellate review.
They create the ongoing risk of conflicting judgments.
They increase the pressures on this court's emergency docket.
They create what Justice Powell described as repeated and essentially head-on confrontations between the life-tenured and representative branches of government.
And they disrupt the Constitution's careful balancing of the separation of powers.
General Saur, these universal injunctions, as you say, have proliferated over the last three decades or so.
Would you discuss, though, the origins of universal injunctions?
In particular, I'm interested in sort of historical analogs or the historical pedigree, particularly the Bill of Peace that was proffered by respondents.
Yes, Justice Thomas, as you, I think, first pointed out in your separate opinion in Trump Against Hawaii, the Bill of Peace is something very distinct from a universal injunction.
So the Bill of Peace involved a resolution of a small discrete set of claims of a small discrete group, and even more fundamentally, it was binding on the members of that class and those represented by the class.
So it's much more analogous to a modern class action under Rule 23.
And in fact, as we've argued in other cases, and as this court has described in opinions like Ortiz, the Bill of Peace evolved into and is directly developed into, so to speak, the modern class action that has all the same features of a Bill of Peace.
So, in the words of Chief Judge Sutton in the Sixth Circuit, the Bill of Peace was a domesticated animal that looks nothing like the dragon of a universal injunction.
Your Honor, I'd say three things in response to that.
First of all, our primary contention is that the citizenship clause related to the children of former slaves, not to illegal aliens who weren't even present as a discrete class at that time.
But more fundamentally, here, as to the issue of the Bill of Peace, there are critical differences.
The Bill of Peace was a binding judgment that would bind absent class members.
I would think that a Rule 23B2 class action, which would be the relevant analog here, would be one that would be binding on absent class members and would not have the same notice and opt-out procedures.
And more fundamentally, that sort of argument that there's a commonality here among all the people who purport to be affected by this is the sort of argument that's made in class certification.
You're talking about the hundreds and thousands of people who weren't part of the judgment of the court, they would all have to file individual actions necessarily.
Or a class action.
A class action would be that makes no sense whatsoever.
No, but we don't because the argument here is that the president is violating an establish, not just one, but by my count, four established Supreme Court precedents.
We have the one ARC case where we said fealty to a foreign sovereign doesn't defeat your entitlement, your parents' fealty to a foreign sovereign, doesn't defeat your entitlement to citizenship as a child.
We have another case where we said that even if your parents are here illegally, if you're born here, you're a citizen.
We have yet another case that says even if your parents came here and were stopped at the border, but you were born in our territory, you're still a citizen.
And we have another case that says, even if your parents secured citizenship illegally, you're still a citizen.
So as far as I see it, this order violates four Supreme Court precedents.
And you are claiming that not just the Supreme Court, that both the Supreme Court and no lower court can stop an executive from universally from violating that holding, those holdings by this court.
So when a new president orders that because there's so much gun violence going on in the country, and he comes in and he says, I have the right to take away the guns from everyone, then people, and he sends out the military to seize everyone's guns.
We and the courts have to sit back and wait until every name plaintiff gets, or every plaintiff whose gun is taken comes into court.
In appropriate cases, courts have certified class actions on an emergency basis.
We found at least four cases in recent years where that was done.
But more fundamentally, we profoundly disagree with the characterization of the merits.
This is now fully briefed in the Ninth Circuit in case number 25-807, where we describe how that characterization of the holding of Wong Kim Ark and the other decisions is profoundly incorrect.
Council, could I ask you about a different type of case that has broader impact than on the particular claimant?
Like a claimant who's alleging that the districting in a particular case has resulted in racial discrimination against him or her based on how the district is drawn.
Now, a judicial decision about that one plaintiff would implicate the redistricting throughout the whole case.
So throughout the whole state, how does your theory address that situation?
That would be what you might call an indivisible remedy, where what the court is doing there by, for example, redrawing the district lines is, as this court said in Gill Against Woodford, the only way to remediate the injury of voting in an unconstitutionally drawn district.
That is similar to abatement of a public nuisance or for example in the school desegregation cases where remediating the injury to the plaintiff before the court necessarily has collateral consequences to many others.
Certain environmental cases might have a similar thing.
For example, you stop the local plant from pouring water pollution into the water.
That benefits the plaintiff.
It happens to benefit a bunch of other people.
Now, that's very different than what we have in these universal injunctions, where it is a divisible remedy.
I mean, I point to the holding of the District of Massachusetts in this case, looking at the individual plaintiffs.
That court said, well, obviously, I don't have to give a universal injunction to protect individuals other than the individual plaintiffs.
They are given complete relief by an injunction that tells federal officials only to treat their children as such.
I guess the question is, why does the law require that?
I mean, I appreciate that a court could, in a divisible remedy kind of case, narrow in to the plaintiff, but you seem to be suggesting that Article III or Rule 23 or something requires that.
In the Article III context, that is the principle announced in Warth against Selden, announced in Gill against Whitford, and Lewis against Casey, where this court has said again and again, what we do in the Article III context is grant remedy that is tailored to, grant remedies that are tailored to remove the injury to the complaining plaintiff.
Sometimes they have even very broad collateral consequences.
But in the Article III context, what the court has not done, and every time it's focused on this in National Treasury's Union, Employees Union, in the Permeal.
But I guess I don't see why then the divisible remedies or indivisible remedies is an argument.
I mean, if Article III is suggesting that the court has to focus in on the plaintiff only, then it would seem to me that that would be the power requirement across the board.
I thought Article III was really about limiting the court's power with respect to jurisdiction.
That we say the court has to determine whether or not there's subject matter jurisdiction over the issue and whether or not there's personal jurisdiction over the defendant.
And once you have those things, the court can evaluate the merits of the legal issue and issue, especially equity, appropriate relief.
Now, I appreciate that there are some prudential concerns that the court considers, but it seems to me that in many, many, many circumstances, we have not required the court to limit their relief to the particular plaintiff as a matter of constitutional Article III requirement.
I'd offer a response both first as to Article III and then as to the scope of equitable authority.
In the Article III context, this court said in Warth against Selden, for example, that the Article III judicial power exists only to redress the injury to the complaining parties.
Again, in Gill against Whitford and Lewis against Casey.
So suppose we have a manufacturing plant that unlawfully releases environmental toxins into the air, and we have a plaintiff who lives near the plant, brings a nuisance lawsuit and says they're being harmed by unlawful release.
Your argument suggests that the judgment for the plaintiff has to narrow in on preventing, to the extent possible, preventing harm to the plaintiff.
But it seems to me that that's not necessarily the case.
You suggest with the Chief Justice in response to him that there can be incidental beneficiaries, that the court could say no more toxins if it's unlawful for the defendant to do that, correct?
Would one distinction be who's bound by the judgment?
Like, I'm wondering whether if the plaintiff needs, you can only, I think Judge Strauss said in the 8th Circuit when addressing this issue, you can't peel off part of the nuisance.
So the whole thing has to be shut down.
Could a neighbor sue affirmatively to hold the nuisance maker in contempt if he started to rebegin, you know, begin again the nuisance?
Well, could you do that now for the universal injunction?
Could a plaintiff, for example, who has the protection of the universal injunction but was not named in the suit bring a contempt action of the sort I just described?
If they, if you, under the, under the injunction as it stands, under the injunctions as they stand, could a non-named plaintiff who has the benefit of the universal injunction that's currently in place?
Could that plaintiff bring a contempt proceeding?
We would or I guess I shouldn't call them a plaintiff we would dispute that.
But you could you, they could seek it okay, and then lastly done that in West New York City, Washington.
It's just never been briefed because they, like just last question on this point, the states have a different kind of claim for financial harm and they've pointed out that it would be very difficult to remedy that without some sort of broader relief.
I know you contest their standing.
I want you to assume that I think they have standing.
Why wouldn't they be entitled to an injunction of the scope of the one that has currently been entered?
First of all, it's not necessary to provide complete relief to the plaintiffs.
What we offered, for example, in the district of Massachusetts in the second or the first circuit, was an injunction that would enjoin the federal officials and order them to treat the people who would otherwise be covered by the executive order as eligible for the services that resulted in the pocketbook injuries to the states, and there's really no response to that.
That is obviously would fully remediate their injuries and does not require the the injunction to be applied in all other 50 states.
One state comes in and says, well, people are going to move across state lines.
Therefore, we've got 21 states in this case who don't want this relief.
Sorry, you've got to impose it on everybody because uh, it has to be, uh has to be offered to this one particular state, uh.
So that's, that's one response.
The other response is this notion that the states have to be provided a pre complete relief because of interstate travel and patchwork.
I think that's very effectively responded to by Chief Judge Sutton's opinion in the Second Circuit, where he says, this is a problem.
If we adopt this logic, it justifies in universal injunction in every single case, and that can't be the case.
The Fifth Circuit's recent DACA decision comes to the same conclusion.
What do you say though, to the suggestion general that, in this particular case, those patchwork problems for frankly, the government as well as for plaintiffs, justify broader relief?
As to the government again, chief judge Tutton addressed that directly as well when he said that's the federal government's problem, in other words, the federal government.
For example, in the First circuit we offered that as a narrower scope of injunction, and the decision was, well, that would cause you too many administrative problems, and I think Chief Judge Sutton directly addresses that when he says that's a problem for the executive branch in Europe, for instance.
And then, with respect to class certification your, your friends on the other side, point out that that takes time, And there are, as you've emphasized, hurdles that have to be met to achieve class certification.
And the argument, of course, is that the injury is immediate and ongoing.
And as Justice Sotemeyer suggested, might be seriously questioned as to its compliance with this court's precedence.
We do not concede that it's appropriate in this case, but it may be appropriate in other cases.
Certainly it's an equitable tool that is consistent with, for example, the grant of equitable authority in the 1789 Judiciary Act, as this court interpreted in the Group of Mexicano decision, and honestly, a line of decisions going all the way back to the early 19th century.
So there are tools to address emergency situations.
But more fundamentally than that, it is a feature, not a bug, of Article III that courts grant relief to the people who sue in front of them.
So the notion that relief has to be given to the whole world because others who have not taken the time to sue are not before the courts is something that results in all these problems.
I mean, shouldn't we, wouldn't it be wise, even if you were to prevail for the court to reserve that question rather than decide that Congress, for example, could never endow this court with that authority?
The court does not have to rest on Article III because the court could say, and as we've argued, and as Justice Thomas, a separate opinion in Trump Against Hawaii says, the 1789 Judiciary Act, when it said suits in equity or what the federal courts can do, had nothing like this in mind.
And then I point to the language in Group of Mexicano, where the court said there what was an issue was a preliminary injunction that froze a likely insolvent debtor's asset so that the plaintiff could collect at the end of the case.
And the court said that's a nuclear weapon in the law, and we're not, that had no analog in 1789 and the practices of the Court of Chancery.
And if that's a nuclear weapon, I don't know what this is, where repeatedly, 40 times in this administration, we're being enjoined against the entire world.
I'm just going to ask you to put yourself in a different frame of mind, hard to do, assume something you won't want to assume.
But the assumption that I want you to make is that on the merits, which of course you did not take to this court, on the merits, you are wrong, that the EO is unlawful.
And I want to ask you, if we assume that, how do we get to that result on your view of the rules?
You know, I think that that's the important question in this case.
Let's just assume you're dead wrong.
How do we get to that result?
Does every single person that is affected by this EO have to bring their own suit?
Are there alternatives?
How long does it take?
How do we get to the result that there is a single rule of citizenship that is not, that is, that is the rule that we've historically applied rather than the rule that the EO would have us do?
That suggests to me you're going to be standing up here in the next case saying that Rule 23 is inapt for this circumstance with this number of people, maybe with some questions that are individual, who knows.
So let's put Rule 23 aside, because I got to tell you, that does not fill me with great confidence.
How else are we going to get to the right result here, which is on my assumption that the EO is illegal?
That would be a profoundly wrong result, but I think what I would offer is that very similar to Labrador against Poe, what the court should be engaging here is a balancing of the equitable factors as to the scope of remedial relief, not as to the underlying merits.
And our contention that this exceeds the traditional scope of equity that's reflected in the 1789 Judiciary Act, we're overwhelmingly likely to succeed on those merits for all the reasons that have stated in our previous.
I mean, that's a lot of words, and I don't have an answer for if one thinks.
And, you know, look, there are all kinds of abuses of nationwide injunctions.
But I think that the question that this case presents is that if one thinks that it's quite clear that the EO is illegal, how does one get to that result in what timeframe on your set of rules without the possibility of a nationwide injunction?
On this case and on many similar cases, the appropriate way to do it is for there to be multiple lower courts considering it, the appropriate percolation that closes to the lower courts, and then ultimately this court decides the merits in a nationwide binding precedent.
You have a complete inversion of that through the nationwide injunctions with a district.
I can't answer because it would depend on what the lower court decision said.
So there are circumstances, as I was suggesting, where we think that we want to continue to litigate that in other district courts in the same circuit as well.
Yeah, so that means it's not even the normal time it takes for everything to get up, you know, through the circuit courts and to the Supreme Court.
Because even in those circuits that say that the EO is illegal, you're going to be saying, no, you know, we only commit to saying it's illegal to this one guy who brought the suit.
Article 3 and the court's traditional equitable practices provide a range of tools to address that, including potentially nationwide class action, not a nationwide university.
That's what you're not willing to commit to abiding by the Second Circuit's precedent and my suppose that there's a single person who brings a suit, and it gets all the way up to us after three or four or five years.
And we say, you know, we really do agree with those four precedents that Justice Soda Mayor started with, and your EO is illegal.
Is that only going to bind the one guy who brought this suit?
And for four years, there are going to be like an untold number of people who, according to all the law that this court has ever made, ought to be citizens who are not being treated as such.
And in the meantime, any of those plaintiffs could have come forward and sought, you know, preliminary injunctive relief.
And they could do so on a class-wide basis.
There are tools to address this, but the universal injunction, which is issued here three days after the executive order was issued, is not one of those tools.