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The Situation Room

Supreme Court Hearing Arguments on Birthright Citizenship. Aired 10:30-11a ET

Aired May 15, 2025 - 10:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[10:30:00]

AMY CONEY BARRETT, U.S. SUPREME COURT JUSTICE: -- shouldn't call them a plaintiff, because that's --

D. JOHN SAUER, U.S. SOLICITOR GENERAL: We would dispute that they would have the standing to do that because of it goes to the heart of --

BARRETT: Well, no, no, no. Let's see, maybe I'm not being clear. Assume the universal injunction is good. Like drop your argument right now.

SAUER: Oh, I see.

BARRETT: As they currently stand, could someone who is not named in the suit, but a beneficiary bring a contempt proceeding?

SAUER: I think that that is what the respondent would certainly contend.

BARRETT: Do you concede that the plaintiffs could bring a Rule 23, like the individual plaintiffs?

SAUER: We would dispute, I mean, we'd have to address the Rule 23 issue is kind of all the criteria as they came up.

BARRETT: OK. But you could -- you -- they could seek it. OK. And then last question --

SAUER: And they have done that in Western District Washington. It's just never been briefed because they --

BARRETT: OK. Just last question on this point. The states have a different kind of claim for financial harm, and they've pointed out that it would be very difficult to remedy that without some sort of broader relief. I know you can test their standing. I want you to assume that I think they have standing. Why wouldn't they be entitled to an injunction of the scope of the one that has currently been entered?

SAUER: I would say two reasons. First of all, it's not necessary to provide complete relief to the plaintiffs. What we offered, for example, in the District of Massachusetts, in the second -- or the First Circuit was an injunction that would enjoin the federal officials and order them to treat the people who would otherwise be covered by the executive order as eligible for the services that resulted in the pocketbook injuries to the states. And there's really no response to that. That is obviously would fully remediate their injuries and does not require the injunction to be applied in all other 50 states.

One state comes in and says, well, people are going to move across state lines. Therefore, we've got 21 states in this case who don't want this relief. Sorry. You got to impose it on everybody because it has to be offered to this one particular state. So, that's one response. The other response is this notion that the states have to be provided a complete relief because of interstate travel and patchwork. I think that's very effectively responded to by Chief Judge Sutton's opinion in the Second Circuit where he says, this is a problem, if we adopt this logic, it justifies in universal injunction to every single case, and that can't be the case. The Fifth Circuit's recent docket decision comes to the same conclusion.

NEIL GORSUCH, U.S. SUPREME COURT JUSTICE: Well, what do you say though to the suggestion general that in this particular case, those patchwork problems for frankly the government as well as for plaintiffs justify broader relief?

SAUER: As to the government, again, Chief Judge Sutton addressed that directly as well when he said that's the federal government's problem. In other words, the federal government -- for example, in the First Circuit, we offered that as a narrower scope of injunction and the decision was, well, that would cause you too many administrative problems. And I think Chief Judge Sutton directly addresses that when he says that's a problem for the executive branch.

GORSUCH: That's your problem. All right. And then with respect to class certification, your friends on the other side point out that that takes time. And there are, as you've emphasized, hurdles that have to be met to achieve class certification. And the argument, of course, is that the injury is immediate and ongoing, and as Justice Sotomayor suggested, might be seriously questioned as to its compliance with this court's precedence. Your thoughts?

SAUER: I would offer a couple of things in response to that. First of all, there are tools to -- for the courts have tools to achieve sort of class-wide universal relief. I referred earlier that we found four recent district court decisions where class-wide relief was given a kind of an emergency basis.

However, more fundamentally than that --

GORSUCH: And you agree that's appropriate in certain cases?

SAUER: It may be appropriate. I mean, we do not concede that it's appropriate in this case, but it may be appropriate in other cases. Certainly, it's an equitable tool that is consistent with, for example, the grant of equitable authority in the 1789 Judiciary Act as this court interpreted in the group of Mexicano decision and honestly, a line of decisions going all the way back to the early 19th century. So, there are tools to address emergency situations. But more fundamentally than that, it is a feature, not a bug of Article 3 that courts grant relief to the people who sue in front of them. So, the notion that relief has to be given to the whole world because others who have not taken the time to sue or not before the courts is something that results in all these problems.

GORSUCH: Last question. Do we need to reach the Article 3 question? I mean, shouldn't we -- wouldn't it be wise, even if you were to prevail for the court to reserve that question rather than decide that Congress, for example, could never endow this court with that authority?

SAUER: Although -- that's exactly correct, the court does not have to rest on Article 3 because the court could say, and as we've argued and as Justice Thomas' separate opinion in Trump against Hawaii says, the 1789 Judiciary Act, when it said suits in equity, or what the federal courts can do, we had nothing like this in mind, and that I point to the language in group of Mexicano where the court said, there what was an issue was a preliminary injunction that froze and likely in solid debtor's asset so that the plaintiff could collect at the end of the case. And the court said, that's a nuclear weapon in the law and we're not -- that had no analog in 1789 in the practices of the court of chancery.

And if that's a nuclear weapon, I don't know what this is, where, repeatedly, 40 times in this administration were being enjoined against the entire world.

[10:35:00]

ELENA KAGAN, U.S. SUPREME COURT JUSTICE: General, I'm just going to ask to -- you to put yourself in a different frame of mind. Hard to do, assume something you won't want to assume, but the assumption that I want you to make is that on the merits, which of course you did not take to this court. On the merits, you are wrong that the E.O. is unlawful.

And I want to ask you if we assume that, how do we get to that result on your view of the rules?

SAUER: It is very difficult for me to adapt the hypothetical, but I will.

KAGAN: Yes. You know, I think that that's the important question in this case. Let's just assume you are dead wrong. How do we get to that result? Does every single person that is affected by this E.O. have to bring their own suit? Are there alternatives? How long does it take? How do we get to the result that that there is a single rule of citizenship that is not -- that is the rule that we've historically applied rather than the rule that the E.O. would have us do?

SAUER: Rule 23 would be one natural path, assuming that a class could be certified, which we might dispute in this particular case.

KAGAN: Well, you might dispute it and, you know, I mean, I think the question is, is there a class that's just all children of people who have entered illegally? You know, is that an appropriate class? Can the same thing be done under Rule 23 or are you going to tell me that, no, Rule 23 has lots of requirements and you'll never be able to certify a class like that?

SAUER: Rule 23 provides the equitable tools subject to rigorous criteria, appropriately rigorous criteria to obtain that kind of class-wide and --

KAGAN: That suggests to me you're going to be standing up here in the next case saying that Rule 23 is inapt for this circumstance with this number of people, maybe with some questions that are individual, who knows. So, let's put Rule 23 aside, because I got to tell you, that does not fill me with great confidence. How else are we going to get to the right result here, which is on my assumption that the E.O. is illegal?

SAUER: That would be a profoundly wrong result. But I think what I would offer is that very similar to Labrador against Poe, what the court should be engaging here is a balancing of the equitable factors as to the scope of remedial relief, not as to the underlying merits. And our contention that this exceeds the traditional scope of equity that's reflected in the 1789 Judiciary Act, we're overwhelmingly likely to succeed on those merits for all the reasons that have stated in our people.

KAGAN: Yes. I mean, that's a lot of words and I don't have an answer for if one thinks. And, you know, look, there are all kinds of abuses of nationwide injunctions. But I think that the question that this case presents is that if one thinks that it's quite clear that the E.O. is illegal, how does one get to that result in what timeframe on your set of rules without the possibility of a nationwide injunction?

SAUER: On this case and on many similar cases, the appropriate way to do it is for there to be multiple lower courts considering it, the appropriate percolation that close to the lower courts, and then ultimately, this court decides the merits in a nationwide binding precedent. You have a complete inversion of that through the nationwide injunctions with the district.

BARRETT: So, General, sir, are you really going to answer Justice Kagan by saying there's no way to do this expeditiously?

SAUER: Well, I'll refer to my former answers, Rule 23 provides the tools to do so multiple injunctions.

BARRETT: But you resisted Justice Kagan when she said, could the individual plaintiffs form a class?

SAUER: We -- that has never been briefed in the court below. I do not concede that we wouldn't oppose class certification in this particular case. There may be arguments that this case is or is not appropriate for class certification, and it just --

BARRETT: If there were a class appropriate for class certification, you concede that that could resolve the question quickly? SAUER: Yes, absolutely.

BARRETT: You concede it could resolve the question quickly through precedent?

SAUER: Yes, absolutely. It could do so. I mean, we obviously dispute the --

KAGAN: So, just on that point --

GORSUCH: And if the court -- sorry, sorry to interrupt. Go ahead, please. All right, I got a quick one. I got a quick one.

KAGAN: Well, I'm going to say just -- I'm just going to say, just on that point, so, you know, let's say that we're an individual person even, let's say it wasn't a class and goes up and gets a ruling from the Second Circuit, that the E.O. is illegal. Does the government commit to not applying its E.O. in the entire Second Circuit, or does it say no, we can continue to apply the rule as to everybody else in the Second Circuit?

SAUER: I can't say as this individual case. Generally, our practice is to respect circuit precedent within the circuit, but there are exceptions to that.

KAGAN: Yes. It's generally your practice and I'm asking whether it would be your practice in this case?

SAUER: I can't answer because it would depend on what the lower court decision said. So, there are circumstances, as I was suggesting, where we think that we want to continue to litigate that in other district courts in the same circuit as well.

[10:40:00]

KAGAN: Yes. So, that means it's not even the normal time it takes for everything to get up, you know, through the circuit courts and to the Supreme Court, because even in those circuits that say that the E.O. is illegal, you're going to be saying, no, you know, we only commit to saying it's illegal to this one guy who brought the suit.

SAUER: Article 3 and the court's traditional equitable practices provide a range of tools to address that, including potentially nationwide class action, not a nationwide --

KAGAN: A nationwide class action which you say you're going to oppose when that gets challenged.

SAUER: We are likely to oppose and all the merits.

KAGAN: When that gets put up -- you know, proposed.

SAUER: Yes. We -- yes. And if it does not meet the rigorous criteria of class certification, the court should not enter that injunctive relief. That's a -- KAGAN: Do you think -- how about you're not willing to commit to

abiding by the Second Circuit's precedent in my -- suppose that there's a single person who brings the suit and it gets all the way up to us after three or four or five years. And we say, you know, we really do agree with those four precedents that Justice Sotomayor started with, and your E.O. is illegal. Is that only going to bind the one guy who brought this suit?

SAUER: No. That would be a nationwide precedent that the government would respect.

KAGAN: So, finally, once it gets to us, after four years, you're going to respect that?

SAUER: Yes. And in addition, we may well respect circuit wide precedent. And the Second Circuit, it just is --

KAGAN: And for four years, there are going to be like an untold number of people who, according to all the law that this court has ever made, ought to be citizens who are not being treated as such?

SAUER: And in the meantime, any of those plaintiffs could have come forward and sought, you know, preliminary injunctive relief and they could do so on a class-wide basis. There are tools to address this, but the universal injunction, which is issued here three days after the executive order was issued is not one of those tools.

UNIDENTIFIED MALE: Thank you, Counsel. Three years, four years --

WOLF BLITZER, CNN ANCHOR: We're watching our special Situation Room coverage of the U.S. Supreme Court arguments over birthright citizenship. We're staying on top of this story. We're not going away from it. This is historic and very significant in the aftermath of Trump. On January 20th, the day he was sworn in for a second term signing an E.O., an executive order banning birthright citizenship. Lower courts have rejected that. Now, they're arguing about those lower court decisions. We're going to continue our special coverage right after a short break.

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[10:45:00]

PAMELA BROWN, CNN ANCHOR: Right now, the Trump administration's solicitor general, John Sauer, is arguing to the Supreme Court about birthright citizenship and judicial power. Let's listen.

SONIA SOTOMAYOR, U.S. SUPREME COURT JUSTICE: Those countless others to be subject to what we think is an unlawful executive action as unlawful, as an executive taking the guns away from every citizen.

SAUER: Cert before judgment would be another tool, but through which this court could ask expeditiously.

SOTOMAYOR: This is the kind of case where the equities would call for that, and why wouldn't it? It's a pure legal question. What does a Constitution mean with respect to citizenship? There are no individual facts that would alter our conclusion. If we can't do it by a universal injunction, because you say Article 3 doesn't permit that. Article 3 wouldn't permit us to give a universal injunction, even if we rule. Why don't we grant cert before judgment so that all of these parents would have a firm Supreme Court decision that they can take where? Because you're saying nobody can grant a universal injunction.

SAUER: No party has asked for that in this case. And I think one reason is that would deny the court of the benefit of percolation and multiple lower courts of a novel sensitive and important --

SOTOMAYOR: Right now, we multiple novel courts who've percolated this issue and said, you're violating precedent. Not only precedent, but the plain meaning of the 14th -- of the Constitution.

SAUER: Respectfully, I think what we have are lower courts making snap judgments on the merits that ignore the fundamental principle of the 14th Amendment, that it was about giving citizenship to the children of slaves, not to the children of illegal immigrants who really were not even a very discreet class at that time. And that's sort of argument that deserves --

SOTOMAYOR: And there were some people in Congress who argued against the 13th Amendment just because of that. Some people who argued against passing the amendment just because of that, because it would give citizenship to gypsies.

SAUER: I think the relevant history of the 14th Amendment is the statements of Senator Trumbull who emphasized that domicile was the key criteria, and he said that in a letter to Andrew Jackson. And there -- we've signed our Ninth Circuit briefing a post --

[10:50:00]

SOTOMAYOR: And we checked it repeatedly. We can go into the history of citizenship, but I still go back to my question. You claim that there is absolutely no constitutional way to stop, put this aside, to stop a president from an unconstitutional act, a clearly indisputably, unconstitutional act, taking every gun from every citizen. We couldn't stop that.

SAUER: I disagree with that for the reasons I've said, including the equitable tools that --

SOTOMAYOR: No, because you said to us we'd have to wait until there was a final judgment. You're not sure you would respect the judgment of every circuit. You're not sure that you would respect even a final judgment of the Supreme Court because it only binds the parties before it. And if there's no class action, that only binds the parties before the court.

SAUER: I don't think there's a, so to speak, really, really unconstitutional exception to the strictures of Article 3 or the scope of equitable authority. And the courts should not recognize one because what we see, not just in this case, but in the 39 others, is that the district courts who issued these injunctions all passionately disagree with the thing that's being challenged in that. So, that principle that, well, this we think is really unconstitutional, therefore, we should ignore the general principles of Article 3 is not a principle, the court ought to adopt.

UNIDENTIFIED MALE: Justice Kagan.

KAGAN: So, General, in this question of expedition, I mean, it sort of depends on the government's own actions in a case like this one where one can expect that there is not going to be a great deal of disagreement among the lower courts. I mean, let's assume that you lose in the lower courts pretty uniformly as you have been losing on this issue. And that you never take this question to us.

I mean, I noticed that you didn't take the substantive question to us. You only took the nationwide injunction question to us. I mean, why would you take the substantive question to us? You're losing a bunch of cases. This guy over here, this woman over here, you know, they'll have to be treated as citizens, but nobody else will. Why would you ever take this case to us?

SAUER: Well, in this particular case, we have deliberately not presented the merits to this court on the question of the scope of remedies, because, of course, that makes it a clean vehicle where the court doesn't have to look at the --

KAGAN: You're ignoring the import of my question. I'm suggesting that in a case in which the government is losing constantly, there's nobody else who's going to appeal. They're winning. It's up to you to decide whether to take this case to us. If I were in your shoes, there is no way I'd approach the Supreme Court with this case. So, you just keep on losing in the lower courts and what's supposed to happen to prevent that?

SAUER: Again, I respectfully disagree with that forecast of the merits, but in response to the question, what I would say is, we have an adversarial system, and if the government is not, for example, not respecting circuit president on the court's hypothetical in the Second Circuit, someone (INAUDIBLE) in the Second Circuit could take the case up and they could say, look, the government is violating circuit president on the hypothetical multiple circuits --

KAGAN: That's the case we're going to take? Somebody who says who says, you know, after we've said that this all has to be done one by one, then we're going to take a case from somebody who objects to proceeding one by one by one?

SAUER: I'm not sure I understand the question. I understood the hypothetical --

KAGAN: If you win this challenge and say there is no nationwide injunction and it all has to be through individual cases, then I can't see how an individual who was not, you know, being treated equivalently to the individual who brought the case would have any ability to bring the substantive question to us.

SAUER: They would bring a lawsuit in the federal district courts against the government for an injunction protecting them, and if the government wasn't respecting, you know, on the --

KAGAN: Yes. And then they win. And again, I mean, you need somebody to lose, but nobody's going to lose in this case. It's just you're -- you are going to have like individual by individual by individual, and all of those individuals are going to win. And the ones who can't afford to go to court, they're the ones who are going to lose.

SAUER: The tools that are provided to address hypotheticals like this, again, I --

KAGAN: This is not a hypothetical. This is happening out there, right? Every court has ruled against you.

SAUER: We've only had snap judgments on the merits. You know, obviously, we're fully briefing the merits in the courts of appeals and our arguments are compelling more fundamentally in response to question --

KAGAN: I'm suggesting to you, like the real brunt of my question is in a case like this, the government has no incentive to bring this case to the Supreme Court because it's not really losing anything. It's losing a lot of individual cases, which still allow it to enforce its E.O. against the vast majority of people to whom it applies.

SAUER: And again, Rule 23 provides an avenue to present -- to address those very concerns.

KAGAN: Thank you.

UNIDENTIFIED MALE: Justice Gorsuch.

GORSUCH: Well, justice Kagan asked my questions better than I could have. How do you suggest we reach this case on the merits expeditiously?

[10:55:00]

SAUER: Well, there is a number of tools the court could do that. We think this case is one that cries out for percolation, that the court should allow the lower courts to address the merit's issue multiple times. It's currently on briefing in three different cases in the First, Fourth, and Ninth Circuits, and we think that's the appropriate way to do it. If the court disagreed, obviously certain court --

GORSUCH: When you lose one of those, do you intend to seek cert?

SAUER: If we lose, yes, absolutely.

BLITZER: We've been watching our special coverage of the U.S. Supreme Court arguments over birthright citizenship. You've been listening to John Sauer, the U.S. solicitor general at -- from the Trump Justice Department, make the case, the arguments on behalf of the Trump administration. We're going to be hearing the counter arguments. That's coming up very soon as well. And we're getting some other news coming in as well, Pamela. BROWN: That's right. We have some other coverage coming up in the next hour. We're going to get reaction from Michigan Governor Gretchen Whitmer. She'll be joining us here in the Situation Room. Stay with us.

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