Washington AG Brown's 3 takeaways from birthright citizenship SCOTUS hearing

Washington Attorney General Nick Brown attended oral arguments at the U.S. Supreme Court on whether nationwide injunctions blocking President Trump’s birthright citizenship ban should be allowed to stand while cases challenging the ban move forward.

Brown, who obtained one of the injunctions against the executive order, was in court Thursday alongside attorneys general from several other states. He spoke with KUOW after the hearing.

Brown said he was encouraged to hear many of the justices express “pretty explicitly that they thought the president’s order was unlawful and unconstitutional."

"It was great to be there," Brown said. "It was obviously a packed courthouse.”

He said the three hours of oral argument were unusual for the court.

“You could see the justices really struggle with the issue about the scope and propriety of nationwide injunctions in general, and then specifically in this case,” Brown said.

He said concern over the increasing use of nationwide injunctions by individual judges “is not a partisan issue.”

But Brown said they are necessary in this situation. “In this particular case I think the absurdity of the argument was really laid bare,” he said, given that babies born to people who are undocumented immigrants or visiting the U.S. on temporary visas could lose their right to citizenship depending on the state where they’re born.

According to the Washington Post, the Trump administration "asked the justices to limit the nationwide orders to the individuals or states involved in the litigation while those cases make their way through the court system, or to at least allow the relevant federal agencies to begin developing plans and issuing public guidance for banning birthright citizenship if Trump’s effort eventually passes legal muster."

Brown said he makes no prediction on how the U.S. Supreme Court will rule on the use of these nationwide injunctions. But he did offer three takeaways from oral arguments:

1. “Justice Alito, viewed as probably the most conservative justice on the court — or he and Justice Thomas certainly – he was also clearly struggling with the Department of Justice’s arguments because I think he recognized that no matter what, they’re going to end up back here in front of the Supreme Court. At one point he said, 'What is the point of what you’re doing here? Why are we having this debate on this case rather than on the merits at the heart of the issue.' To hear Justice Alito voice a lot of skepticism about that surprised me.”
2. “Justice Sotomayor made an analogy to the Second Amendment and protections for gun owners in America and said, ‘What if President Biden or any other president had come in and said all firearms are illegal and Americans can’t possess them.' Are you arguing that the only way we would get relief on that is if individual gun owners brought their cases to district courts or in some sort of class action, rather than a nationwide injunction to protect the Second Amendment? And the Department of Justice tried to defend such an argument; they argued that it could be done quickly, and gun owners would get relief quickly. But I think that really gets to the heart of what is kind of a silly argument, you just change the subject area.”
3. “Then there were a couple moments when the Department of Justice would not say unequivocally that they would abide by circuit court rulings on this issue or others. Because their argument was essentially that this needed to work its way through the courts and the circuits and Justices Kagan and Sotomayor and Barrett all sort of asked, ‘Will you follow if the Second Circuit weighed in on this issue against you?’ And [Solicitor General John Sauer] said, ‘Well, generally we would,’ but not unequivocally. So that to me was pretty surprising to hear the Department of Justice hedge their argument on whether they’d follow a circuit court, but that is sort of the logical extension of what they’re saying.”

Brown said the challenge to Trump's executive order filed by Washington state and joined by three other states is scheduled to go before the Ninth Circuit Court of Appeals in June. U.S. District Judge John Coughenour in Seattle was the first federal judge to block an executive order by the second Trump administration.

Meanwhile the U.S. Supreme Court, according to Scotusblog, “will almost certainly act on the government’s request in this case before its summer recess, which usually begins at the end of June or the beginning of July.”