The Supreme Court on Thursday signaled deep uncertainty over how, or whether, to rein in the growing use of nationwide injunctions, a legal tool that has repeatedly stymied President Donald Trump’s agenda.
During nearly three hours of oral arguments, justices across the ideological spectrum appeared divided on the best path forward. Some expressed skepticism over the sweeping injunctions issued by judges in lower courts, while others raised alarms about what might happen if federal judges lose the power to halt policies that appear unconstitutional fully.
At the center of the debate is an emergency appeal brought by the Trump administration to lift three injunctions blocking his controversial executive order to limit birthright citizenship. However, rather than focusing on the merits of the order, the justices spent most of the session grappling with the broader legal mechanics that could determine how far presidential authority can be checked in court.
Nationwide injunctions: A legal remedy growing in popularity and scrutiny
Justice Department lawyers have labeled the current volume of universal injunctions an “epidemic.” Since January, judges have imposed approximately 40 injunctions against Trump’s second-term actions — part of a trend that has escalated in recent administrations.
Legal scholars noted that nationwide injunctions were rare before the 1960s, but they’ve become a favored tactic: six were issued during former President George W. Bush’s years, 12 against former President Barack Obama, 64 during Trump’s first term, and 14 against former President Joe Biden.
Still, it was unclear Thursday whether the six Republican-appointed members on the high court, even with clear concerns among several justices, would side with the administration’s sweeping request to limit the scope of federal court rulings.
Sharp questions from the bench
“This case is very different from a lot of our nationwide injunction cases,” said Justice Elena Kagan, an Obama appointee. She noted the gravity of Trump’s order and the practical consequences of limiting court relief.
“What happens to people in the meantime?” she asked. “How does one get to [a ruling] and with what time frame?”
Solicitor General D. John Sauer responded that a class action might be possible, but Kagan dismissed his answer as inadequate. Justice Amy Coney Barrett echoed that concern.
“Are you really going to answer Justice Kagan by saying there’s no way to answer this expeditiously?” she asked.
Chief Justice John Roberts eventually interjected, suggesting the courts could act quickly if needed.
Meanwhile, justices appointed by Democratic presidents warned that eliminating broad injunctions would enable unconstitutional executive orders to remain in place for years.
“As far as I see it, this order violates four Supreme Court precedents,” Justice Sonia Sotomayor said, referencing the long-standing interpretation of the 14th Amendment’s citizenship clause.
Trump’s order, issued on his first day back in office, would deny birthright citizenship to U.S.-born children unless at least one parent is a citizen or a lawful permanent resident. The change directly challenges the 1898 United States v. Wong Kim Ark ruling that affirmed U.S. citizenship for children born on U.S. soil, regardless of their parents’ immigration status.
Limited remedies and class action alternatives
However, not all the justices appeared ready to curb judicial power wholesale. Justice Clarence Thomas, a longtime critic of nationwide injunctions, noted, “We survived until the 1960s without universal injunctions.”
Justice Brett Kavanaugh suggested that class action lawsuits could offer a more tailored solution.
“I’m sure they’re being prepared now,” Kavanaugh joked.
Sauer emphasized that the administration isn’t asking the justices to eliminate the tool, only to limit its application in this case to the plaintiffs who sued, a narrower outcome that could still let Trump enforce his birthright order in parts of the country.
The constitutional context
Opposing attorneys representing 23 Democratic-led states insisted that Trump’s executive order is plainly unconstitutional and that federal judges acted properly by blocking its implementation nationwide.
“They’re saying Wong Kim Ark settled this exact issue 127 years ago,” New Jersey Solicitor General Jeremy Feigenbaum told the court.
Feigenbaum called the question of birthright citizenship the “elephant in the room,” noting that several district court judges had already concluded the order was unconstitutional.
“This is not a normal case,” he said, adding that the administration’s harm claims were “particularly unusual” given the legal clarity.
Outside the high court, several hundred protesters, including high-profile lawmakers such as Reps. Nancy Pelosi (D-CA), Jamie Raskin (D-MD), and Delia Ramirez (D-IL), stood in opposition to Trump’s policy.
Meanwhile, several Democratic attorneys general from states suing the administration addressed the press outside the high court steps. New Jersey Attorney General Matthew Platkin told the Washington Examiner that universal injunctions should be rare, but this case qualifies.
“The Sharpie rewrites the 14th Amendment, and says overnight, on his first day in office, that the plain text … is somehow different,” he said, referring to the president and his executive order.
Expert views on universal injunction reform
Legal experts remain divided on the future of universal injunctions and whether the court is prepared to craft a durable solution.
“Nationwide injunctions can be abused, but they also serve a critical role in protecting people from government overreach,” said Anastasia Boden, senior attorney at the Pacific Legal Foundation. “If courts can’t halt unlawful actions beyond a handful of plaintiffs, then justice becomes meaningless, especially when the government moves fast and the courts move slow. Reform? Sure. Eliminate? Absolutely not.”
Carrie Severino, president of the conservative judicial advocacy group JCN, said in an email that she believes the justices acknowledged inherent problems with universal injunctions. She noted that some court members seemed open to “limiting them and using class actions instead of the novel (and often-abused) mechanism of these types of injunctions.”
“That result would allow the Trump administration to fully brief and litigate the important question of the reach of the Fourteenth Amendment in a way that would comply with normal procedural rules and bind all parties rather than giving challengers a strategic advantage,” Severino added.
Other experts speculated that the justices may stall rather than strike a major ruling in the coming weeks, and punt the dispute to review the birthright citizenship policy’s merits later this fall.
SUPREME COURT ASKS TENSE QUESTIONS OF TRUMP LAWYER OVER BIRTHRIGHT CITIZENSHIP
“If there was any consensus on what to do with [nationwide injunctions], they would’ve done it a long time ago,” said Josh Blackman, a constitutional law professor.
“They may just decide to rule on the merits in the fall,” he added, suggesting the court could issue a brief order postponing any major decision until it reviews the case more fully.