Two Issues Not Discussed in Birthright Injunction Arguments

WASHINGTON - May 15, 2025 - PRLog -- The Supreme Court heard arguments about how to balance the ability of federal judges to issue nationwide preliminary injunctions against governmental actions which they believe are unconstitutional against the concern about presidents not being able to carry out policies because they are held up in courts for extended periods of time.

While virtually all of the argument focused on what the Court should do, there was virtually no discussion of the most appropriate solution, the enactment of new laws, says public interest law professor John Banzhaf.

For example, Congress already requires that in many situations, certain cases cannot even be heard by a single federal judge, but rather must be considered by a special three-judge panel.

Many decisions of three-judge district courts are immediately appealable to the Supreme Court, thereby speeding up the process and avoiding delay.

This, of course, might be one process which could be mandated when plaintiffs seek a national injunction against a presidential order.

By statute Congress could also provide for highly expedited consideration of all national injunction cases, or limit how long such a preliminary injunction could remain in effect.

But weighing and balancing such approaches is typically the work of Congress, rather than the Supreme Court.

Indeed, many would argue that it would be better to resolve this problem by a broad consensus necessary to pass legislation, rather than by a 5-4 and/or split decision by justices who are supposed to decide individual cases according to the law, not legislate.

So regardless of how the high court may rule on these specific birthright injunctions which cannot wait, it might be best if Congress itself addressed the bigger issue.

Also, there was much discussion about how leaving the current injunctions intact would create confusion with children born in the U.S. to illegal aliens regarded as citizens by some states, but as deportable in others; and how confusing that would be if the family travels to or through different states, much less moving from one jurisdiction to another.

Most involved in the discussions this morning seemed to believe that such confusion and uncertainty would be unthinkable.

But within the lifetimes of many, including justices, just such confusion and uncertainty prevailed with regard to same-sex marriages before a Supreme Court decision ended that situation.

At that time, same-sex couples might be regarded as validly married in some states but not in others, and subject to various legal problems if they traveled to or through different states, or even changed their residence.

While this legal uncertainty is obviously not desirable, it is hardly unthinkable with regard to babies born in the U.S. to illegal aliens

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