The Supreme Court's birthright citizenship decision isn't as devastating as you think - Ian Millhiser @ Vox

[In It to Win It]

Vox

On Friday, the Supreme Court released its long-awaited decision in Trump v. CASA, a case challenging President Donald Trump’s attempt to strip many Americans of citizenship. The Court handed Trump a narrow victory along party lines, with all six Republicans in the majority and all three Democrats dissenting.

The 14th Amendment provides that “all persons born or naturalized in the United States” are citizens, with one narrow exception that does not arise in CASA, so Trump’s executive order trying to strip many babies born in the US of their citizenship is clearly and unambiguously unconstitutional. Multiple lower courts have all reached this same conclusion.

There are three important takeaways from the CASA opinion:

1) It’s not actually about birthright citizenship

The specific issue was whether all the lower courts that struck down the Trump anti-citizenship order may issue a “nationwide injunction,” which would block that order everywhere in the country, or whether they must issue a more narrow injunction that only blocked it in certain states, or for certain families.

Justice Amy Coney Barrett’s majority opinion concludes that a nationwide injunction is not allowed…sort of. Much of the opinion is about why nationwide injunctions should be impermissible, but a key section suggests that, in this case, one might actually be okay.

The Supreme Court’s birthright citizenship decision isn’t as devastating as you think www.vox.com/scotus/41795...

— Ian Millhiser (@imillhiser.bsky.social) 2025-06-27T15:08:58.564Z

[JustAnotherGen]

1. I disagree

I'm with Justices Sotomayor and Brown Jackson on this.

The Krasnov Admin and the Scrotum 6 are gaming the system for The Heritage Foundation.

[Hugin]

2. Yeah, I am going with their dissent...

Rather than some random journo’s take.

[mahatmakanejeeves]

8. Ian Millhiser, "random journo"?

https://www.vox.com/authors/ian-millhiser

Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. Before joining Vox, Ian was a columnist at ThinkProgress. Among other things, he clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit and served as a Teach For America corps member in the Mississippi Delta. He received a BA in philosophy from Kenyon College and a JD, magna cum laude, from Duke University, where he served as senior note editor on the Duke Law Journal and was elected to the Order of the Coif. He is the author of two books on the Supreme Court: Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted and The Agenda: How a Republican Supreme Court Is Reshaping America.

[Ocelot II]

14. Ian Millhiser is no "random journo."

He's an established writer on legal issues with a strong resume as a lawyer and legal scholar. He knows what he's talking about.

[Hugin]

17. We've reached the point where if he's not on the SCOTUS.

He's merely saying what 'aught to be done. It's academic. They've proven themselves to be far beyond precedent and if we constrain ourselves to precedent, we are tying a hand behind our backs.

[Hassin Bin Sober]

6. Yep. It's now "catch me if you can" rule of law.

And trump is the master of catch me if you can.

[muriel_volestrangler]

3. "should also benefit future Democratic administrations, assuming that the GOP-controlled Court applies it fairly"

The most immediate beneficiary of Friday’s decision is Trump, who will now get some relief from nationwide injunctions. And it’s notable that the Republican-controlled Supreme Court waited until a Republican was in the White House before cracking down. Nevertheless, the decision in CASA should also benefit future Democratic administrations, assuming that the GOP-controlled Court applies it fairly to presidents of both parties.

Ha-ha-ha-ha-ha. I don't think Millhiser is that naive, so he ought to be ashamed of writing that. A more realistic last sentence would be "The GOP-controlled Court will likely use this to Republicans' advantage, and Democrats' disadvantage, until some date in the distant future when a democratic (which means Democratic) majority returns to the Court".

[edhopper]

4. They have ruled

that Constitutional Rights are subject to selective enforcement by District and not universal. It is more devastating that it appears.

[Silent Type]

7. Agree. We aren't bound by 5th Circuit, arguably most right-wing federal appellate court in the country.

[Ocelot II]

9. This is worth reading - a sensible perspective.

No paywall link: https://archive.is/kbIhX

When I was in law school some 40 years ago, I took a course in federal civil procedure (we called the class "Mystery Courts" because the rules and jurisdiction issues can be pretty arcane). At the time I had no idea there could be any such thing as a nationwide injunction; the issue was never discussed at all, and I just understood that a court's decision was limited to the parties to the case. But I've been out of the law business for awhile, so when a few years ago that crackpot Kacsmaryk in Texas tried to outlaw mifepristone for abortions on a nationwide basis I wondered, Can he even do that? I'd assumed that his power was limited to the parties to the case and was surprised to learn otherwise. I just read Barrett's decision, and I can't say that it's wrong, at least historically. This was a typically originalist decision. The modern problem, though, is that nationwide injunctions seem to be the only immediate remedy against nationwide executive orders that are arguably unconstitutional and that previous presidents weren't doing. While the decision is solid as a matter of precedent, it leaves plaintiffs in the position of having to challenge Trump's shitty EOs in multiple courts, with the possibility of inconsistent decisions to be sorted only at some later date, or file class actions, which are cumbersome. On the other hand, Kacsmaryk and similar judicial troglodytes are also sidelined, which is definitely a good thing.

[In It to Win It]

11. Thanks for the archive. I swear it wasn't paywalled when I posted it 😂

[Ocelot II]

12. Maybe it's only paywalled for me?

[In It to Win It]

13. I just clicked the link again. It's paywalled now.

When I posted, it wasn’t paywalled. I was able to open and read it several times.

[Ocelot II]

15. They busted you.

[canetoad]

19. I've said this before

But I really appreciate your level headed legal explanations when it looks like a hair-on-fire moment. Seven am here and it's obvious from GD that an important decision came down last night. I actually did an advanced search for your posts in the previous 12 hours to read reasoned comments on what has happened while I was sleeping.

[Ocelot II]

20. Thank you. I generally try to keep the fire from other people's hair

from setting mine alight, so before I get too close to the flames I'll read the actual opinion as objectively as I can. News reports, and especially headlines, often get things wrong, sort of like preliminary bomb damage assessments - and then the inaccurate/oversimplified headlines set those coiffures ablaze. I think an important point is that there won't be the wholesale deportation of everyone born in the US to an undocumented immigrant. Even by the terms of Trump's clearly unconstitutional EO, that won't happen because it refers to only two situations: " (1) when [a] person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when [a] person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth." It also provides for a 30-day ramp up; since the EO was dated January 20, 2025 (he could hardly wait!), so it didn't go into effect until February 20. In other words, the only people it purports to deny citizenship to are those born after February 20 to certain (not all) non-citizen parents. So there's one hair-conflagration that can be put out. The obvious problem with the case is that it requires potential plaintiffs to sue individually, although as of today there seems to be a class action in the works, which might solve that dilemma.

What I consider to be the case's weakness isn't that the court found nationwide injunctions to be historically unfounded; it's the rigid originalism that didn't allow it to find an exception for a situation Congress could not have anticipated when enacting the Judiciary Act 200+ years ago - which is the modern use of broad executive orders, and in this case to circumvent the Constitution. In fact, executive orders weren't even a thing in those days (the Emancipation Proclamation was an EO of a sort, but they were otherwise almost unheard-of until the 20th century). Barrett also interpreted the equitable principle relating to the inadequacy of a remedy at law, which is needed for injunctive relief, narrowly, apparently concluding that the availability of litigation in other courts would provide that remedy, where as a practical matter requiring separate litigation in each case where constitutional rights are at stake is a pretty flimsy remedy. She did toss the bone of a class action, though, and we'll see where that goes. And as I said before, the positive result of this case is the effective sidelining of that asshole in Texas.

[surfered]

10. Since this administration has shown contempt for due process ,

IMO: I believe the nation wide injunction is important to protect a person from being snatched off the street without his attorney present, zip tied by masked men, thrown in an unmarked car, and put on a plane to El Salvador.

[Arazi]

16. He's giving this court the benefit of the doubt

I strongly dissent (along with Sotomayor, Kagsn and KBJ)

[LetMyPeopleVote]

18. A couple of Class Action lawsuits have already been filed to get around this ruling

Class actions are a way around this ruling

Link to tweet

Link to tweet

That was quick

There are already TWO new class action lawsuits challenging Trump birthright citizenship order

Suits designed to adjust to today's Supreme Court ruling

Including one by ACLU, which says "This executive order directly opposes our Constitution, values & history"