Neutral Principles for Birthright Citizenship on the Emergency Docket
On Thursday, the Acting Solicitor General filed emergency applications in three birthright citizenship cases (24A884, 24A885, and 24A886). These are appeals from the First, Fourth, and Ninth Circuits. The government has sought only a partial stay. First, the SG argues that the universal injunctions improperly granted relief to non-parties. Second, the SG contends that it was not proper to grant relief to the states. Third, the SG argues that the lower-court injunctions are overbroad insofar as they prevent the Executive Branch from even developing implementation guidance.
Even measured against other universal injunctions, those at issue here stand out. The universal injunctions here extend to all 50 States and to millions of aliens across the country—even though tailored interim relief for the plaintiffs to these suits would fully redress their alleged harms. The courts granted these universal injunctions to States who plainly lacked standing to raise Citizenship Clause claims—defying the bedrock principle that States (like other litigants) may assert only their own rights, not the rights of third parties.
The government does not seek any remedy based on a likelihood of success on the merits. Rather, the “modest” relief sought is purely procedural.
At various junctures, five members of the Court have criticized nationwide injunctions. The brief doesn’t just list the name of the authoring justice. The brief names-names:
Universal injunctions transgress constitutional limits on courts’ powers, which extend only to “render[ing] a judgment or decree upon the rights of the litigants.” United States v. Texas, 599 U.S. 670, 693 (2023) (Gorsuch, J., joined by Thomas and Barrett, J.J., concurring in the judgment) (citation omitted). Universal injunctions are also incompatible with ” ‘foundational’ limits on equitable jurisdiction.” Department of State v. AIDS Vaccine Advocacy Coalition, No. 24A831, slip op. 7 (2025) (Alito, J., joined by Thomas, Gorsuch, and Kavanaugh, J.J., dissenting) (citation omitted).
The brief favorably cites Brackeen for the proposition that states lack standing to assert the rights of third parties:
The courts granted these universal injunctions to States who plainly lacked standing to raise Citizenship Clause claims—defying the bedrock principle that States (like other litigants) may assert only their own rights, not the rights of third parties. See, e.g., Haaland v. Brackeen, 599 U.S. 255, 294-295 (2023). . . . In Haaland v. Brackeen, 599 U.S. 255 (2023), [the Court] rejected Texas’s claim that a federal statute violated the Equal Protection Clause because a State “has no
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