Some Reasons to be Skeptical of Nationwide Injunctions
I disagree, on the merits, with President Trump’s executive order denying birthright citizenship to children of non-citizens who are born in the United States because their parents were here without a green card. I will explain my reasons for disagreeing with the President in more detail in a future blog post. My reading of the Constitution, the caselaw, the scholarly commentary, and of our history leaves me persuaded that United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898), was correctly decided 127 years ago. Justice Gray’s opinion in that case for six justices of the Supreme Court is far more persuasive and more thorough than is Chief Justice Fuller’s dissent.
I disagree, however, with the increasingly aggressive issuance of nationwide injunctions by the federal district courts, including the nationwide injunctions at issue in Trump v. CASA, a birthright citizenship case which is presently before the Supreme Court. Article III, Section 2 of the Constitution explains that “The judicial Power shall extend” to nine, and only nine, categories of specific cases or controversies. The federal courts do not have the power to decide issues nor are they the sole expositors of the meaning of the Constitution.
The Constitution never mentions the word “interpretation.” It never expressly grants any actor a power of interpretation and does not expressly grant courts a power of judicial review. The only powers granted by the Constitution are legislative, executive, and judicial powers. All of those powers require those who exercise them to engage in interpretation to ascertain the scope and limits of their powers (and the powers of other actors), but those powers of interpretation are incidental to the exercise of [the legislative, the executive, and the judicial power]. [Steven Gow Calabresi & Gary Lawson, The Meese Revolution: The Making of a Constitutional Moment 192 (2024).]
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