If you are not alarmed by the Supreme Court’s decision on Friday in Trump v. CASA, Inc., you should be. The ruling disarms the judiciary from arresting flagrantly unconstitutional executive orders before they race out of the starting gate and begin to inflict irreparable harm on non-parties to litigation.
Consider the following hypothetical. President Donald Trump issues an executive order stripping every MAGA detractor of United States citizenship and ordering their summary deportation to El Salvador. A detractor races to a United States district court seeking an injunction against the patently unconstitutional order. According to Trump v. CASA, Inc., the district court would be powerless to enjoin President Trump from enforcing the executive order against anyone but the single plaintiff.
Everyone else would be fair game to strip of citizenship and deport without a hearing. Tens of millions of lawsuits would be needed by MAGA critics to end President Trump’s wrecking ball against due process and Section 1 of the Fourteenth Amendment. If you had neither the time nor resources to retain an attorney to file immediate suit, you might be rotting in an El Salvador dungeon before judicial relief might be forthcoming. And we know Mr. Trump’s stance regarding the return of illegally deported citizens or aliens: He is helpless against Central America’s superpower El Salvador!
Trump v. CASA, Inc. is too close to the hypothetical for comfort. On Jan. 20, President Trump issued a preposterous executive order reinterpreting the plain language of Section 1 of the Fourteenth Amendment, ratified in 1868, to deny birthright citizenship to individuals born in the United States and bound to obey its laws, provided their mothers were not lawfully present or were here temporarily and their fathers were neither citizens nor permanent resident aliens. The text is plain even to kindergarteners: “All persons born … in the United States and subject to the jurisdiction thereof, are citizens of the United States.”
In the 157 years that elapsed since ratification of the amendment and 2025, virtually everyone in the United States understood Section 1 to mean what it says: If you are born in the United States and subject to its laws, you are a citizen. The United States Supreme Court, for example, declared in United States v. Wong Kim Ark (1898), “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory.” It added that the “subject to the jurisdiction” qualifier excludes only “children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state.”
Mr. Trump’s executive order absurdly maintained that individuals born of disqualifying parents “are not subject to the jurisdiction” of the United States, effectively meaning they could commit murder, rape, arson, theft, assault or other violent felonies with impunity. That terrifying consequence alone is sufficient to discredit the executive order. It also wars with itself. It applies only to persons born within the United States after 30 days of its issuance. People born of disqualifying parents before that day remain citizens. But Section 1 applies to both categories of individuals. It can’t mean one thing on Jan. 20, 2025, and another thing 30 days later without an amendment — except in the fantasy world of Humpty Dumpty in “Through The Looking-Glass”: “When I use a word, it means just what I choose it to mean — neither more nor less.”
Federal district courts in Maryland, Massachusetts and Washington issued preliminary, nationwide injunctions against enforcement of the flagrantly unconstitutional executive order on behalf of pregnant women whose children would be disqualified as citizens of the United States, two immigrant-rights organizations sporting thousands of members likely to give birth to children who would be similarly disqualified, and 22 states, the District of Columbia and San Francisco. The injunctions prohibited the Trump administration from applying the executive order to any individual or entity. They pivoted on a pure question of law interpreting Section 1 as applied to any person born in the United States to disqualifying parents.
Limiting the injunctions to the named parties before the district courts would have invited thousands or tens of thousands of copycat lawsuits raising the same constitutional issue that had already been decided. And before these lawsuits could be filed, the Trump administration could have attempted to deport the non-parties to El Salvador, South Sudan, Zimbabwe or anywhere else on the planet with little or no chance of returning to the United States for years if ever.
If the Trump administration thought the district court orders had errantly interpreted birthright citizenship, it could have leapfrogged over courts of appeals to the Supreme Court for a speedy, definitive constitutional interpretation under Rule 11 of the Supreme Court. That process was used to address President Harry S. Truman’s seizure of steel mills during the Korean War (Youngstown Sheet & Tube Co. v. Sawyer) and President Richard Nixon’s obligation to surrender White House tapes for use in Watergate cover-up trials (United States v. Nixon).
But President Trump did not take that route, knowing he would lose on the merits before the court. Instead, Trump nitpicked the scope of the district court’s injunctions to non-parties to keep his executive order on life support to terrify immigrants and placate his MAGA base for additional months of protracted litigation. Indeed, President Trump will probably never appeal his executive order losses in lower courts to avoid the embarrassment of losing in the Supreme Court populated with three Trump appointees.
The court should have sustained nationwide injunctions against flagrantly unconstitutional executive orders like Mr. Trump’s regarding birthright citizenship to arrest extraconstitutional, irreparable injuries inflicted on non-parties to litigation. Instead, the majority permitted Mr. Trump to play them like a fiddle.
Bruce Fein was associate deputy attorney general under President Ronald Reagan and is author of “American Empire Before the Fall.” His website is www.lawofficesofbrucefein.com and X feed is @brucefeinesq.
