The Chief's Blue Plate Special On Birthright Citizenship: A Second Helping Of DACA Reliance Interests
Yesterday, I predicted that the Supreme Court will avoid resolving the various nationwide injunction issues in the birthright citizenship cases. Instead, the Court would issue a merits ruling based on the Fourteenth Amendment to make the case go away.
A few colleagues said I was wrong, and that the merits issue was not adequately briefed. I’m not so concerned. The Court can always restore the case to the docket for the fall and order supplemental briefing. Injunctions are in place now, so time is not of the essence.
Another colleague suggested that the Court will find the national injunctions are improper, but suggest that the lower courts could certify nationwide classes under Rule 23. I suppose that option is preferable, since we would avoid the murky equitable power to issue nationwide injunctions. Rule 23 at least has the imprimatur of Congress (assuming the Rules Enabling Act is constitutional). But as a practical matter, courts are already certifying national classes in ex parte TRO hearings. I am skeptical there would be much of a practical difference if the Court goes down that road. The emergency docket will still remain active.
What will the Court do? I was pondering this question today, and I think I figured out the Chief’s play. We will get a second helping of his blue plate special from the DACA case. The Court will simply find that the executive branch failed to adequately consider the reliance issues with suspending birthright citizenship. Specifically, the order did not explain how the policy would affect parents and their unborn children. Roberts can even cite Dobbs!
I know that the President’s executive order is not subject to the APA, and Department of Regents is not directly on point. Details. The Chief can fashion some equitable principle based on reliance interests and hardships, and BAM! The Court then will never need to decide the meaning of the Citizenship Clause. Indeed, this punt would likely eliminate the issue for the foreseeable future.
My predictions are not very accurate, so please take this post with a heaping of salt.
The post The Chief’s Blue Plate Special On Birthright Citizenship: A Second Helping Of DACA Reliance Interests appeared first on Reason.com.
Source: https://reason.com/volokh/2025/05/13/the-chiefs-blue-plate-special-on-birthright-citizenship-a-second-helping-of-daca-reliance-interests/
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