On Thursday this week, May 15, the U.S. Supreme Court will hear arguments in a case involving Trump’s executive order that aims to wipe out birthright citizenship. A decision is expected in June or July. As we wrote last week, if the Court rules for Trump in this case, “this will represent a further leap to all-out fascism. Yes, it is just that serious.”

Birthright citizenship means that anyone born in the U.S.—whatever the citizenship status of their parents—is legally a U.S. citizen. This is not a government policy or a law passed by Congress. It is a principle that appears directly in the U.S. Constitution, as part of the 14th Amendment that was passed shortly after the Civil War. That amendment guaranteed citizenship for former slaves, who were not considered citizens before then. And in language that is clear and unmistakable (and affirmed by multiple Supreme Court decisions since then), the amendment gave that same guarantee to everyone born in the U.S.

So when Trump, on his first day in office, issued the executive order denying citizenship for children born of parents who were not citizens or green card holders, he was directly defying and trampling on the Constitution. As revolutionary leader Bob Avakian (BA) points out, “If Trump wanted to legally and Constitutionally change this—which itself would be a very bad, reactionary move—he could try to do so by following the procedures for amending the Constitution as set forth in the Constitution itself. But that is just the point: Trump does not recognize any limits to his fascist dictatorship—not the Constitution, and not the laws or the rule of law and due process of law.”¹ (from social media message @BobAvakianOfficial REVOLUTION #115)

Last week’s revcom.us article and BA’s message REVOLUTION #115 say more on the heavy stakes involved in this Supreme Court case. Here, we want to get a little more into the way the fascist regime is carrying out this blatant attack on rule of law and immigrants through focusing on the question of nationwide injunctions by federal courts.

“Ending nationwide injunctions would be a major change in the law”

Shortly after Trump issued the executive order banning birthright citizenship, multiple lawsuits were filed challenging it. Four federal district court judges ruled that Trump’s order was unconstitutional and issued nationwide injunctions—meaning that the order could not be put into effect anywhere in the country, not just in the districts where the lawsuits were heard. These district court rulings and nationwide injunctions were upheld in three federal courts of appeal. The case before the Supreme Court on May 15 combines three of the lawsuits—brought by the states of Washington and New Jersey and the immigrant rights group CASA. 

Instead of asking the Court to rule directly on the constitutionality of the executive order, the Trump regime is demanding that the nationwide injunctions issued by the district courts be ruled unconstitutional—and that the injunctions by the district court judges should apply only “to the individual plaintiffs [those who brought the suits] and the identified members of the organizational plaintiffs.” The Trump regime lawyers called this a “modest” request.

But as Erwin Chemerinsky, dean of University of California at Berkeley Law School, notes in a recent article,² what Trump is aiming to do here is anything but “modest”: 

Ending nationwide injunctions would be a major change in the law. Indeed, the Trump administration’s petition to the Supreme Court argues that a federal court cannot provide relief to other than the parties in a lawsuit. Holding that federal courts cannot provide “relief beyond the parties to the case” would mean that there would have to be separate lawsuits by every other party that wants the same relief. If an organization sues, all of its members could benefit. And if there is a class action, all members of the class would benefit. But a suit by individuals to challenge a policy, such as the end of birthright citizenship, would mean that anyone else who is affected would have to bring a separate lawsuit.

The primary focus of [Trump’s] solicitor general’s brief was arguing that a decision in one federal district court can have no effect beyond that district. This would mean that a challenge to an unconstitutional government policy would have to be brought separately in each of the 94 federal districts and, ultimately, in every federal circuit [appeals court].

Chemerinsky notes that the Trump regime makes two main arguments for their case against nationwide injunctions. One claim is that under the Constitution, a court cannot provide remedy beyond those plaintiffs directly involved in a lawsuit. Chemerinsky strongly refutes this:

…[N]othing in Article 3 [of the Constitution] prevents a court from issuing a remedy against a defendant that benefits more than the plaintiff in a lawsuit. Otherwise, when there is an unconstitutional law, the court would be limited to declaring it invalid as to the plaintiffs in that case but leaving the law on the books except as to others who come forward to challenge it. A nationwide injunction is directed at a party: the United States government. 

The other main claim by the Trump regime in their case is that nationwide injunctions harm the executive branch in carrying out its duties. Again, Chemerinsky takes this on:

But the response is, that’s the whole point: If the executive branch is violating the Constitution, it should be stopped. Ending nationwide injunctions would mean that an unconstitutional law or presidential action would remain in effect every place except in the federal district where the injunction was issued. It is precisely for this reason that the Trump administration wants to end nationwide injunctions: Without them it will be far more difficult to halt unconstitutional presidential actions.

As Chemerinsky notes, “[D]efenders of nationwide injunctions say that is only temporary until the federal court of appeals and, ultimately, the Supreme Court rules. They argue that the alternative of limiting federal court relief to the particular plaintiff or the specific federal district court would be far worse.”

That “far worse” may mean that, if the Supreme Court decides in Trump’s favor in this birthright citizenship case, depending on the exact wording of the decision, most states would deny citizenship for anyone born after February 19 this year (when Trump’s executive order was supposed to go into effect before the nationwide injunctions) of parents who were not citizens or legal residents. And furthermore, as we said in last week's revcom.us article:

Such a decision could also imply that Trump could issue an executive order against any and every right now guaranteed by the Constitution and so long as a district didn’t contest it, it would be law in that district. This would set an extremely dangerous precedent. Think of it—what if a similar executive order were applied to the First Amendment right to freedom of speech, and everybody except for those people living in Northern California, New York, and Detroit were suddenly denied the protection of the First Amendment? 

In short, Trump’s move to ban birthright citizenship is a fascist attack both on the courts and rule of law itself and on immigrants.

High Stakes and Dangers… and the Urgent Need for Mass Protest

All this once again highlights the high stakes and high dangers involved in the Supreme Court birthright citizenship case. And it emphasizes the urgent need for people to join with and support Refuse Fascism’s call for May 15 protests at the Supreme Court, and elsewhere around the country—and on May 17: “In big cities and small towns across this country, a day of determined, non-violent protests, rallies and marches. to project the demand that Trump Must Go Now to a much higher level throughout society.”