The U.S. Supreme Court on Friday allowed the Trump administration to largely enforce the president’s executive order ending birthright citizenship for children born to undocumented immigrant parents, an issue closely watched by educators and policymakers.
The 6-3 decision in Trump v. CASA emphasized that it was not ruling on the merits of the birthright citizenship question, but was instead limiting the use of universal injunctions, in which a single federal district judge blocks a policy nationwide.
That alone has implications for education, as multiple courts have issued universal injunctions to block executive orders of President Donald Trump and U.S. Education Department policies on issues ranging from federal workforce reductions to bans on diversity, equity, and inclusion policies in schools.
“When a federal court enters a universal injunction against the government, it improperly intrudes on a coordinate branch of the government and prevents the government from enforcing its policies against nonparties,” Justice Amy Coney Barrett wrote for the majority.
She was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, and Brett M. Kavanaugh.
Barrett stressed from the bench that the Trump administration did not ask the court to consider the merits of the executive order in its emergency application seeking a stay of lower court injunctions blocking it, and “we do not address the question whether the executive order” violates the U.S. Constitution or federal law.
Justice Sonia Sotomayor read at length from her dissent, in which she said the court was “shamefully” playing along with the “gamesmanship” of the administration in trying to curtail universal injunctions without having to show the birthright citizenship order is likely constitutional to allow it to be enforced.
“With the stroke of a pen, the president has made a solemn mockery of our Constitution,” Sotomayor said, in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson. “Rather than stand firm, the court gives way.”
Judges outline why they oppose nationwide injunctions
As the justices took up oral arguments in the case in May, they largely focused on the legal question the administration asked in its emergency application: Do federal district judges have the authority to issue nationwide injunctions blocking federal policies they believe are unlawful?
Three such judges blocked Trump’s Jan. 20 order, ruling that it was likely unconstitutional because the Supreme Court had long ago ruled that being born on U.S. soil conveys citizenship based on language in the 14th Amendment. In United States v. Wong Kim Ark, in 1898, the court held that a child born of Chinese parents within the United States was a citizen even though his parents were “subjects of the Emperor of China” and were ineligible for U.S. citizenship themselves.
In briefly addressing the underlying merits of the president’s action, U.S. Solicitor General D. John Sauer told the court on May 15 that the executive 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.”
Sauer said class actions or individual lawsuits would be the appropriate ways to challenge the executive order instead of seeking a universal injunction—when a single federal judge blocks a law or policy not just for the plaintiffs in the case but as applied to everyone in the nation.
Several justices, including Thomas, Alito, and Gorsuch, have criticized such nationwide injunctions in recent years.
Thomas said in a 2018 opinion that such nationwide injunctions prevent “legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.”
Besides the underlying legal issue of birthright citizenship, the question of nationwide injunctions may be relevant for education policy, as Trump has issued numerous executive orders and other actions related to issues such as diversity, equity, and inclusion policies in schools and policies affecting transgender students. Many of those have been challenged in court, with a few of those being blocked by universal injunctions.
Concerns about school attendance and education funding
The implications of Trump’s birthright citizenship order for education remain uncertain.
Most legal experts believe that the Supreme Court’s 1982 decision in Plyler v. Doe, which held that a state could not withhold funding from school districts that enrolled undocumented immigrant children, guarantees those children the right to attend public schools regardless of their own citizenship or their parents’ immigration status.
One friend-of-the-court brief filed by local governments and officials from at least 20 states in opposition to Trump’s order argues that if it is allowed to take effect, there would be several direct harms to states and school districts.
For example, some federal education aid under the Individuals with Disabilities Education Act is based on students’ eligibility for Medicaid, which typically requires U.S. citizenship, says the brief.
“Under the [executive] order, school districts would lose this funding for impacted students,” says the local governments’ brief, which was signed by several members of various school boards across the country.
“Additionally, policies hostile to immigrants deter parents from sending their children to school due to fear of deportation or other concern for their families,” the brief adds. “When that happens, schools lose attendance-based federal funding.”
The president’s executive order is written to apply only to those “born within the United States after 30 days from the date of this order.” (With the order having been blocked, that effective date is presumably on hold.)
But challengers, which include five undocumented immigrant women who were pregnant at the time the case was filed and the immigrant-rights group CASA Inc., said in a brief that “it is far from clear the government intends for the order to apply only prospectively.”
If the order goes into effect, “the government could attempt to retroactively strip citizenship from millions of American children and adults, going back generations,” the challengers said.
Sotomayor, in her dissent, said the majority’s decision left open the possibility of class actions for large groups of plaintiffs to challenge the executive order.
“The parents of children covered by the Citizenship Order would be well advised to file promptly class-action suits and to request temporary injunctive relief,” she said. “For suits challenging policies as blatantly unlawful and harmful as the Citizenship Order, moreover, lower courts would be wise to act swiftly on such requests for relief and to adjudicate the cases as quickly as they can so as to enable this court’s prompt review.”
