In 2005, Donald Trump famously stated, “… [w]hen you’re a star, they let you do it. You can do anything .…” The U.S. Supreme Court has applied that belief to the actions of U.S. presidents while courts take months or years to decide legal challenges to their constitutionality.
Last week’s United States Supreme Court decision on the birthright citizenship case will have a dramatic effect on the rights and risks of San Francisco residents, schools, and city government, well beyond the issue that prompted the lawsuit.
Through the litigation strategy advanced by City Attorney David Chiu, San Francisco has been at the forefront to effectively block much of the Trump administration’s agenda on issues ranging from education to immigration.
Friday’s decision in Trump v. CASA will intensify the Trump administration’s impact and opposition to it. And it will mean the city’s lawyers will have to bring or join more lawsuits against the Trump Administration to protect the constitutional rights of residents and the legal and financial interests of city programs and policies.
By a 6–3 vote, the U.S. Supreme Court ruled that a federal judge in one of the 94 district courts around the country may issue an order affecting the parties in a proceeding but not extend the application of that order to everyone nationally. These rulings, commonly called “universal” or “nationwide injunctions,” have become more common in the last 30 years, especially as presidents sidestep the legislative process and issue more executive orders.
Under the decision, a judge can still keep a governmental action from going into effect that may violate the law or Constitution during the time the judge is hearing all the arguments and reading the briefs. But now, only the parties actually before the court can gain the benefit of this protection. Justice Ketanji Brown Jackson wrote in dissent that this ruling allows governmental lawlessness, at least temporarily during the years-long process for the courts to decide the underlying case — against those who are unable to file a federal lawsuit and convince their local judge about the merits of their own case. The likely results: Multiple lawsuits over the same matter and conflicting rulings across the country.
San Francisco has been at the forefront to effectively block much of the Trump administration’s agenda on issues ranging from education to immigration.
The birthright citizenship executive order prohibits federal agencies from issuing a passport or other document signifying U.S. citizenship to a child born to parents who are here on temporary visas or are here without immigration authorization. The temporary resident category includes scientists, engineers, and tech workers here on H-1B visas. Immigration laws allow temporary workers to adjust to permanent status but, in the case of Indian citizens seeking permanent employment visas, the wait is more than a dozen years. A child born during that time will no longer be automatically granted U.S. citizenship — a reversal of more than 125 years of constitutional precedent. The child might be deemed to be a citizen of another country or be stateless. State and local governments will not be reimbursed by the federal government for costs associated with these children.
The original injunction put the executive order on hold while the courts decide its legality and whether a president can amend or ignore the Constitution by executive order. Now, the injunction goes back to lower courts to assess how it should be limited. A court might decide that San Francisco is asserting only financial interests and require the parents themselves to come to court to protect their child’s citizenship rights. This will mean more lawsuits. Within hours of the Supreme Court ruling, the ACLU filed a new nationwide class action lawsuit to block the Trump executive order. The Trump Administration and some Supreme Court justices have criticized nationwide class action lawsuits as well so any injunction in this new case will likely be challenged.
San Francisco and other plaintiffs in the birthright citizenship case have 30 days to argue to the district court that a nationwide injunction is still needed because children born in other states can travel to San Francisco in need of medical or other assistance that would otherwise be reimbursed by the federal government if they were citizens.
Beyond the birthright citizenship case, there are at least two dozen additional nationwide injunctions against Trump administration executive orders. San Francisco is not a party to all of the lawsuits and will need to consider joining them to avoid their mandates. For example, Executive Order 14248 prohibits accepting or counting ballots after Election Day. It also requires documentary proof of U.S. citizenship to register to vote. For example, older adult longtime voters who move to assisted living will need a U.S. passport to reregister at a new address. And it requires a federal check on voter registration for individuals on public assistance. Even though a federal judge has ruled this executive order is likely to be unconstitutional and already blocked it from going into effect, under the Supreme Court decision, our city Elections Department might have to comply with it until a final ruling is made unless the court decides that the State of California’s presence in the case is legally sufficient to represent San Francisco.
The birthright citizenship fight began in the 1890s when San Francisco native Wong Kim Ark successfully challenged the government’s attempt to bar him from returning to San Francisco after a trip to China. City Attorney David Chiu’s legal battle to defend birthright citizenship and city programs, people, and values from the onslaught of attacks by the Trump administration will continue, but is more challenging as a result of last week’s court ruling.
