CNN
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On Thursday, the Supreme Court will take up a case that could decide how quickly President Donald Trump can implement his second term agenda as it hears arguments about nationwide injunctions that allow a single judge to block a policy for the entire country.
The issue arises from an appeal challenging rulings that have blocked Trump’s attempt to end birthright citizenship, the longstanding practice based in the 14th Amendment of granting citizenship to any child born on US soil, regardless of their parents’ immigration status.
“Nationwide injunctions, universal injunctions issued by district court judges have fundamentally thwarted the president’s ability to implement his agenda,” a senior Justice Department official told reporters in a briefing on Tuesday.
Trump has issued over 200 executive orders in the past four months – more than any other president – which have been blocked by judges 39 times, according to the Justice Department. While recent presidents of both parties have faced nationwide injunctions, Trump is on pace to set a record, which is why this issue has become a priority for him and his Republican allies in Congress.
“It cannot be the case that the president of the United States has to march around to 600-odd district court judges and ask each one of their individual permission to implement any policy, particularly important policies that he ran on and that the American people elected him to do,” a second administration official told reporters.
Nationwide injunctions started being implemented around 1963 and were used sparingly until the modern era when judges started using them to block presidents of both parties, DOJ says.
“I would say it’s a bipartisan issue, it’s a nonpartisan issue, and the one institution that’s been very consistent on this is the US Department of Justice, which across five administrations has said these are not a thing,” the official said.
Solicitor General John Sauer, who successfully argued before the Supreme Court in favor of presidential immunity when he was Trump’s personal attorney, will argue on behalf of the administration that the courts are thwarting the power of the legislative and executive branches by blocking policies for the whole country.
Critics of the Trump administration’s arguments, however, say that preventing judges from blocking policies while litigation plays out means that actions of questionable legality or constitutionality could be in effect for years before the Supreme Court ever considers them.
Thursday’s case originated from three separate challenges to Trump’ executive order ending birthright citizenship that he issued on his first day in office. The lawsuits were brought by Democratic-led states, immigrant advocacy groups, and pregnant individuals whose children could be denied citizenship under Trump’s new policy. They argue that the president’s policy is blatantly unconstitutional, which is why an injunction was necessary.
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And they point out that every district court that has considered the executive order has blocked Trump’s policy because of the “profound harms that it imposes on States and individuals.”
But Sauer plans to counter that claim by arguing that district court judges are not always right on the merits of a policy. He will point to Trump’s ban on transgender military service members which was subject to a nationwide injunction in March. The Supreme Court recently ruled the administration can move forward with the ban even though it has not ruled on whether it is constitutional.
“A lot of these district court judges are wrong,” the senior DOJ official said.
The administration also faced one of its biggest setbacks in court last week when a judge in San Francisco blocked its plan for mass layoffs. The ruling has an enormous impact on the administration’s ability to reshape the government and Thursday’s case could have a direct impact on those efforts.
The Trump administration maintains it is not enough for the court to merely limit injunctions.
“I would prefer a system with fewer than there are now,” the official said. “However, I think any limitation is going to be a loophole that you can drive a truck through. Because really, we have very powerful limitations now.”
The arguments are high stakes for Trump and his ability to swiftly make good on his campaign promises.
“That’s why this case is so important for us. That’s why we’re so excited that the Supreme Court agreed to the unprecedented step, certainly rare step, of hearing oral argument in a case like this … we’re very hopeful and very confident that we’re going to have a successful day of the Supreme Court.”
