Was Yesterday One of the Most Important Days in Modern American History? – Top 3 Takeaways – May 16th, 2025 – Driven By Braman Motorcars
Takeaway #1: Let's put out of our mind the merits of this
Two points were very clear coming out of the Supreme Court’s hearing over President Trump’s birthright citizenship executive order. 1) There’s zero chance that President’s Trump’s order will be allowed to redefine birthright citizenship as it’s been allowed to persist since the onset of the Fourteenth Amendment in 1868. 2) That there was broad interest in reining in the use of universal injunctions by lower courts...with the biggest question being how to get there? My read when listening to the especially lengthy SCOTUS hearing yesterday (over two and a half hours) was that it wasn’t an especially good day for the Solicitor General IE: Team Trump. This was quickly established with Justice Sotomayer taking over the hearing and effectively for a time being allowed to do so (Chief Justice Roberts started to stop her but didn’t). That feeling was driven home when Justice Alito, said: Let's put out of our mind the merits of this. You know your merits case is dead as a doornail when a justice you need on your side doesn’t even want to debate the merits of your merits case. That was Alito’s way of saying that even he, by way of voting record the second most conservative justice on the court, is not willing to consider overturning existing precedent on birthright citizenship with the use of an executive order. So, rest assured that type of determination from the Supreme Court in this case most certainly isn’t happening. That’s not to say that the argument lacks merit. In the SG’s closing rebuttal arguments, recognizing the reality on the ground, he spent less time readdressing the merits argument while taking more time to parse out the universal injunction argument. So, about that... What the Trump administration laid out is that essentially rather than the use of universal injunctions as a means of seeking relief – class action territory is the way to go...that is if there really is to be an end to universal injunctions. So, about that...
Takeaway #2: So, we made it to 1960 without a universal injunction
At one point in the proceedings Justice Clarence Thomas, who clearly is ready to reign in the abuse of universal injunctions, made that statement. That we made it to 1960 without universal injunctions. So, about that. Here’s how we got here in the first place. The first universal injunction issued by a federal court can be found in 1939 in the case of Lukens Steel Co. v. Perkins, where the D.C. Circuit issued a preliminary injunction prohibiting the enforcement of a federal minimum-wage – though that’s debated because the order itself didn’t attempt to establish that type of president – just that the injunction had that practical effect. The next instance was a case in 1963. Wirtz v. Baldor Electric Co. changed everything as the federal judge in that case issued a “universal injunction” against a Department of Labor regulation that was the crux of the case. That’s important here. For all but the last 62 years of our country’s history there was no such thing as a federal judge issuing universal injunctions. And then one day there was because it was done by a federal judge and essentially was left unchallenged until now as the practice has turned into an obvious mechanism for judicial abuse and overreach. The concept of the “universal injunction” isn’t something that was established by the constitution. It wasn’t something that was established by congress. It was established unilaterally by the judiciary. And that’s the reason this will likely be reined in. How on one hand could it be argued that President Trump can’t redefine birthright citizenship unilaterally but that on the other hand a federal judge can redefine judicial authority at the district court level? There is no intellectual or constitutional consistency.
Takeaway #3: So, what's the remedy?
I’m not going to try to proclaim that I know how this case is going to turn out. I’m not even sure if as of now if the justices themselves know how they intend to have this playout. But what I can do is present a couple avenues that will be considered as they come to a decision. As I see it there are three potential outcomes at this point. 1) Punt and do nothing leaving the status quo in place. 2) Rule against Trump’s EO on birthright citizenship but end universal injunctions. 3) Rule against Trump’s EO on birthright citizenship but limit the use of universal injunctions. The first is self-explanatory but it’s also the most unlikely. Why expedite three consolidated cases and conduct a hearing two weeks after the end of the session if there wasn’t a predisposition for something to be different? It’s possible but not logical. If it’s the second outcome it’s because they’ve likely accepted the idea that class action lawsuits can take the place of universal injunctions. And before attorneys in the audience scoff at that idea consider this. Universal injunctions were created by the courts. Class action lawsuits were created by congress. If we still truly believe that law is still about application of the constitution, it’s the most constitutionally consistent thing to do. An act of congress certainly carries more constitutional weight than an action taken by a single federal judge. That’s not even open to debate. And if it turns out to be number three, which may at this point be most likely based on the temperature in the room yesterday (but I don’t really know), I’m not sure what the limiting factor will be. So that’s the view of possibilities and the final answer will determine whether yesterday was one of the most important days in modern American history or just another day with argument at the Supreme Court.