On Thursday, May 15, the US Supreme Court heard oral arguments in what is widely referred to as “the birthright citizenship case.” As some commentators point out, this is somewhat of a misnomer: at stake in this case is not the constitutionality of Trump’s executive order (EO) banning birthright citizenship for certain classes of individuals. Instead, the Court is asked to decide a procedural question: whether lower courts exceeded their authority in placing a nation-wide injunction on the government’s order. Such nation-wide injunctions – of which several have been issued, with the first only three days after the EO was promulgated – have prevented the order from going into effect until a decision on the merits is made.
Make no mistake, the fact that the case turns on a question of procedure, rather than substance, will not make the Court’s decision any less significant. Nation-wide injunctions have proliferated in the last five years, with over half of the injunctions issued since 1963 being issued against Trump administration policies. They have become an increasingly divisive legal tool in what is an increasingly, perhaps even irrevocably, divided constitutional system. I say irrevocably because in the United States the executive and the courts are finding themselves at loggerheads not just about questions of governmental policy, but rather about the fundamentals of the constitutional system – its structure, distribution of power, and underlying ideals– itself. Indeed, it is the latter type of question that is at stake in the “birthright citizenship” case, and it is why labeling it as such may not be a misnomer after all.