The Supreme Court just lifted a key check on presidential power
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In recent U.S. history, big presidential policy initiatives have often died in federal district courthouses. Like President Obama's DAPA immigration plan, short for Deferred Action for Parents of Americans and Lawful Permanent Residents. It would have given protection from deportation to millions of immigrants in the U.S. without legal status.

I disagree with the Texas judge's ruling. Except that in 2015, a district court judge issued a nationwide or universal injunction preventing Obama from implementing the law anywhere in the country. This is not the first time where a lower court judge has blocked something or attempted to block something that ultimately was shown to be lawful.

In fact, the Supreme Court would ultimately deadlock in the case and the policy never took effect. The trickle of universal injunctions under Obama became a flood under President Trump. A judge has just blocked our executive order on travel.

and refugees coming into our country from certain countries. Trump's policies were blocked by nationwide injunctions 64 times during his first term, according to a Harvard Law Review article. And his administration questioned whether judges really had that authority. This is the opinion of many.

an unprecedented judicial overreach. As presidents have tried to expand the scope of their power, these universal injunctions have become a major check on the executive. But politicians on the right and the left have complained of judge shopping. Conservative plaintiffs bring cases in Texas. Progressives file suits in California or Massachusetts. So the claim is more likely to come before a sympathetic judge.

During the Biden administration, a federal judge in Texas issued a preliminary injunction suspending federal approval of the abortion drug Mephepristone. In a CNN interview, New York Congresswoman Alexandria Ocasio-Cortez advised Biden to ignore the court's order. The rules and policies passed by the executive branch now are going to require unanimous consent from 650 district court judges, many of which are appointed by

with even, you know, the American Bar Association saying that they're completely unfit for the role. For the record, the Supreme Court eventually threw out that lawsuit. Now, in Trump's second term, the legal debate over universal injunctions reached the country's highest court.

And consider this. The Supreme Court has just dramatically limited the power of district courts to issue this type of injunction. That decision lifts a key constraint on Trump and whoever comes after him. From NPR, I'm Ari Shapiro.

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Go to rocketmoney.com slash consider today and reach your financial goals faster. It's Consider This from NPR. In President Trump's second term, federal judges have found many of his policies unconstitutional, and they've issued dozens of universal injunctions. The Congressional Research Service documented 25 of them in just the first 100 days of this term.

Three different federal judges blocked Trump's executive order to deny U.S. citizenship to some babies born to immigrants in the U.S. And when the case reached the Supreme Court, the administration didn't focus on the constitutional right to birthright citizenship. Instead, government lawyers put most of their energy into arguing that universal injunctions themselves are unconstitutional.

And on Friday, in a six to three decision on ideological lines, the Supreme Court agreed. This decision may have huge implications. To walk through them, I spoke with Amanda Frost. She studies immigration and citizenship law at the University of Virginia.

So the court has limited universal injunctions. How big a change is this to the role of judges in our system of government? Yeah, I think this is momentous. It expands executive branch authority and in turn limits the role of the courts and

as well as overwhelming the lower federal courts with lawsuits, because now the only way to get relief in cases challenging executive branch policies is for each and every individual to file a lawsuit, unless there's a class action available, which is not a device that's available in every case. So to take the specific example of the birthright citizenship case, three different court injunctions had blocked that executive order. The Supreme Court reduced the scope of all three injunctions

Does that mean this can now be enforced in places where no one has challenged it in court, but the executive order cannot be enforced in places where there have been successful lawsuits? Like, how does this actually work? The answer is likely yes. And I'll just point out every district court to address this question of the constitutionality and legality of the executive order purporting to end birthright citizenship held that it was blatantly unconstitutional, which is the language of one judge. But nonetheless, as a result of the Supreme Court ruling,

If the individual involved didn't file a lawsuit and lives in a state that didn't sue, it's quite possible that their child born within 30 days of this ruling or after 30 days of this ruling would not be a citizen or at least they'd have to demonstrate their own citizenship and immigration status before their child would be recognized as a citizen.

So this ruling is momentous both in this individual case and issue involving birthright citizenship, but in addition for all of the lawsuits challenging executive branch policies under this president and any future president. And so taking the wide angle view beyond birthright citizenship, does this mean that any president can issue an executive order that is blatantly unconstitutional, hypothetically speaking, on guns or climate or immigration or literally anything, anything?

And until the Supreme Court has a chance to weigh in on it, the executive order will remain in effect?

Yes, I mean, there's a good example. Maybe a future president would say everyone has to turn in their handguns. No one can have a gun, which would clearly violate the Second Amendment and the court's jurisprudence. And yet unless and until the Supreme Court weighs in, that executive order could apply to everyone who didn't file a lawsuit. I will say there's one caveat to that, which is individual states have sued to challenge the birthright citizenship policy.

And in the Supreme Court decision today, the court did send it back to the lower courts and said, you need to determine the scope of the injunction needed to provide relief to these individual states. And that's because it's difficult to craft relief for a state that doesn't acknowledge that it needs to apply beyond individuals born within that state.

And, of course, could apply to anyone who moves around this country freely, as we all have a right to do. Even though this decision was split on ideological lines, judges across the ideological spectrum have criticized nationwide injunctions. So what reason did the majority give for limiting them so dramatically? Yes, and I will just say that I think nationwide injunctions can be overused and aren't appropriate in every case. As many judges have said, as many academics have said as well who studied this issue, including myself,

But the way the court decided this case is to say that it's likely beyond the authority of the lower courts to do this. And that really takes off the table universal injunctions. However, injunctive relief can be provided still that's broad enough to provide complete relief to the plaintiffs, which could mean extending beyond individual plaintiffs in some cases. We'll have to see how this plays out. You said that this could lead to hundreds or thousands of lawsuits on any given issue. Is the court system ready for that?

No. Short answer, no. And they're already overwhelmed. The system is under enormous stress, as it is. And now they look to be flooded with lawsuits. You know, anyone who's expecting a child over the next year, you know, 30 days from now or beyond,

will have to demonstrate their status for their child to be recognized as a citizen unless they are somehow included within the relief given to individual plaintiffs or states. Justice Katonji Brown-Jackson wrote in dissent that the court's decision to permit the executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law. Why such strong language? I think Katonji Brown-Jackson is speaking from her experience as a judge on the lower courts, right?

She sees the potential for this ruling by the Supreme Court to enable the executive branch to issue lawless executive orders or policies that then are applied across the nation unless and until the Supreme Court issues a final decision. And that prevents courts from exercising their essential role in our system of government.

which is to check lawlessness and abuse by the executive branch. So do you expect that practically speaking, we will now see every new president issue as many executive orders that are as sweeping as they want, even if in their heart of hearts, they know it's unconstitutional because they'll be able to get away with it for a while? It certainly creates the possibility that that becomes a wise policy choice. I mean, here, President Trump can win by losing.

He can issue a lawless executive branch policy, as the birthright citizenship executive order has been roundly critiqued by just about everybody. He can issue that and impose it on the people for months or years until it takes the Supreme Court to resolve it. And he's losing all these cases, which means if he chooses not to appeal them, it would never get to the Supreme Court. Oh, interesting. So if he doesn't appeal the case he loses, he can still implement that policy anyway.

On a steadily shrinking map of the United States, where he just carves out each specific place he's lost but never appeals to the Supreme Court. Yes, the executive branch can manipulate the judicial system to attempt to avoid judicial review for as long as possible. And Justice Elena Kagan pointed this out at oral argument. She made this very clear. Amanda Frost is a professor at the University of Virginia Law School. Thank you. You're welcome.

And a final note, after I spoke with Amanda Frost, the ACLU and other immigrants' rights groups did file a nationwide class action lawsuit on behalf of babies and parents who would still be subject to the executive order on birthright citizenship. It would cover all families in the U.S. This episode was produced by Kai McNamee and Connor Donovan. It was edited by Patrick Jaron-Watananen. Our executive producer is Sammy Yannigan.

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