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The birthright citizen case before the US Supreme Court today, could well be one of the most precedential cases the Supremes consider this year, among many that will prove to be significant for years to come.  “Precedential”, as in setting precedence for years to come; not “presidential”, as in relating to the president – though it certainly is that also.

While many people may thank that the issue in this case is birthright citizenship, it is actually isn’t. At. least, not yet. Birthright citizenship is the underlying and ultimate issue to be decided, but the issue before the Supreme Court at the moment is a procedural and jurisdictional one, and the determination of this issue will either allow President Trump free reign (for the time being) to barrel down the aggressive course he has set for deportations (and other things), or it will reign him in and block his ability to move at the pace and in the way he has planned.

The case comes up to the high court on procedural grounds. The substance of the case is not yet at issue. That will await the complete litigation process before a decision is made. The only issue before the Court, now, is whether a federal trial court has jurisdiction to issue a nationwide injunction.

The ultimate issue in the case, birthright citizenship, of course, is a poignant constitutional matter that will have far reaching effect. A decision in favor of the Trump interpretation of the law will dramatically change law as it has been interpreted and applied Since 1898. The substantive issue involves the meaning of the language in the 14th Amendment that establishes birthright citizenship. (See The Birthright Citizenship Case Exposes a Constitutional Crisis Unfolding for detail on the right to birthright citizenship embedded into the 14th Amendment.) The Trump Administration has directly challenged the well established precedent over the last 125+ years, but a determination of that seminal issue must wait.

The procedural posture of this case is the entry of a nationwide preliminary injunction by a federal trial court. This isn’t the first case of its kind. Many trial courts, both federal and state, have issued similar far-reaching orders imposing injunctions at the front end of a case, halting the action challenged, while the litigation plods forward to a long-awaited conclusion.

The 300 lb. gorilla in this case is the jurisdiction of the trial court. Trial courts have limited jurisdiction in our American system if jurisprudence, but the court purported to issue an injunction applicable throughout the entire nation. The high stakes that ride on this decision are evident, but we need to review the design and structure of the nation’s court system to understand why this is an issue.

The judicial system in the United States is based on local trial courts having jurisdiction in a limited geographical area in a limited geographical region over which an appellate court has jurisdiction. Appellate courts, in turn, under the jurisdiction of the Supreme Court, which has jurisdiction over all courts. Trial courts (and the entire judicial system) are also limited to hearing only matters between real people who petition the courts for a resolution of actual controversies. Courts cannot raise issues on their own or resolve theoretical or speculative matters.

Each state court has such a legal system, and the federal courts operate under the same schema. State courts deal with state and local law, and federal courts deal only with federal law.

The American court system is ingenuous for providing robust vetting of legal issues in multiple jurisdictions that sometimes result in conflicting appellate determinations that must, ultimately, be resolved by the appropriate supreme court (state or federal). Cases are only heard by a supreme court when appellate courts have reached conflicting conclusions or when matters are of such urgency or moment that the need for the high court to weigh in is great.

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The precedent established little by little through trial court decisions appealed to appellate courts establishes the caselaw in each appellate jurisdiction on the specific issues decided in the specific cases that are appealed to them. Over time, the body of caselaw expands, becomes more nuanced, and fills in the gaps as each novel and unique fact situation issue is addressed on appeal. In this way, the caselaw builds on itself over time to become a body of law.

When lines of caselaw develop in different directions in different appellate jurisdictions, the resolution of those conflicting lines of caselaw will eventually be addressed at the supreme court level, but only when a matter involving those issues is appealed up to the Supreme Court – not until then. When a supreme court weighs in, the determination of the supreme court becomes the law of the land for all courts in all jurisdictions.

This ingenuous, rigorous system of jurisprudence has survived and worked as the framers of our constitution intended for well over two hundred years. The system of layered courts of limited jurisdiction is something a first year lawsuit student learns in the first week of civil procedure.

This is the design and pattern of the American judicial system. Thus, when a local trial court issues an injunction purportedly applying to all courts in all jurisdictions, that decision might be considered ultra vires – beyond the authority of the court.

This is the basic issue and the basic argument of the Trump administration that the US Supreme Court must decide in the birthright citizenship case. The ultimate issue the Trump administration has challenged (whether children born in the US are citizens as the Constitution seems to provide and the 1898 case determined) is a long way from resolution, but the trial judge issued an order enjoining (preventing) the federal government from taking that position nationwide until an ultimate determination on the legal issues can be made in the normal litigation process, which could take many months or years.

The purpose of an injunction is to prevent harm from occurring while the litigation is ongoing. An injunction cannot be issued unless the court finds that the petitioner’s likelihood of success is high, that the harm that might be done before a resolution is reached is great, and that the harm would be irreparable if an injunction is not issued.

The case before the court fits the requirements for an injunction. The Trump administration’s position runs counter to the plain language of the US Constitution, which was affirmed in a US Supreme Court case determined 127 years ago! The outcome seems crystal clear (though the administration argues for a nuanced interpretation that was arguably not addressed, or not addressed in the same way, in that 1898 case).

In the meantime, thousands, tens of thousands, or even hundreds of thousands of children born in the US could be deported during the time it will take for the matter to be fully briefed and argued before the trial court (given the orderly, but plodding, way litigation goes). It seems (to me) that the ultimate legal issue is likely to be decided against the Trump administration once the case is fully briefed and argued. Thus, irreparable harm is likely, and an injunction seems appropriate in this case.

The problem/issue before the Supreme Court now is whether a federal trial court has authority/jurisdiction to issue an injunction that applies nationwide. Should a trial court located in a particular trial court jurisdiction have the authority to issue an injunction that applies beyond that jurisdiction to the whole nation?

The three trial courts that issued the injunctions in his case are not the first trial courts that have ever issued such an extra-jurisdictional injunction. Indeed, such rulings have happened in state and federal courts for years, but no one has dared raise the issue to an appellate court (that I know of), let alone the highest court of the land, until now.

The expediency for the nationwide injunction is clear: potentially hundreds of thousands of children born in the US could be deported by the time this case is finally decided by the trial court (and appealed, and appealed again back to the Supreme Court). The position of the Trump Administration is highly questionable, and it defies law that has been established for over a century. BUT, the trial court seems to be out over its skis to issue a nationwide injunction, because it runs counter to the design and intention of American system of jurisprudence.

The stakes are high, and that is what makes this case so difficult. Justice seems to demand that the questionable action of the administration be stopped in its tracks, not only because the harm will be devastating and irreversible; but because the authority to treat children born in the US as noncitizens is counter to the plain language of the Constitution and well-established caselaw is so thin.

“Bad facts make for bad law”, as the saying goes. The temptation to uphold the nationwide injunction in this case is compelling, but the decision will become precedent for trial judges all over the country. This case will, undoubtedly, establish precedent that will be used by many cases in many ways we could not possibly foresee and in circumstances in which the justification may seem far less certain.

The danger is that the cure that seems so necessary in this case may spread a disease that could undermine the system of jurisprudence for years to come and result in injustices in other circumstances.

With that said, a party has a right to appeal an order granting, denying, modifying, refusing, or dissolving an injunction immediately under the federal court rules (28 U.S.C. § 1292(a)(1)). A party doesn’t have to wait for the final order in a case to appeal an injunction. This ameliorates the potential damage of injunctions that are not appropriate – where the outcome is not as clear as it seems to be in this case and where the damage is not as high stakes.

Still, the tension between the limited jurisdiction of trial courts and the expediency to “do something” to avoid irreparable harm from actions that seem on their face to run counter to the Constitution and well-established caselaw is great.

The Supreme Court must decide the issue that the Trump Administration has appealed for a determination following. The Supreme Court’s decision will have significant impact. This decision will not decide the ultimate issue on birthright citizenship. Rather, it will affirm or deny a trial court’s authority to enter nationwide injunctions.

The Supreme Court decision will determine whether the executive order purportedly doing away with the constitutional right of birthright citizenship can be acted on by the Trump Administration to deport US born children of non-citizen parents while the issue is briefed, argued and determined, or whether the Trump Administration must await the ultimate determination to carry out its immigration enforcement goals. The fate of potentially hundreds of thousands of individuals and the policy goals of the Trump Administration are at stake.

Donald Trump questioned recently the expediency of due process when he reflected on the fact that due process would require millions of hearings. Yes, that is what it would require. That is what it always requires, and it has been the law (more or less) for a couple hundred years.

Donald Trump finds it expedient to ignore due process and to push arguments for why it should not apply. He finds it expedient to issue executive orders for such things as eliminating rights established in the US Constitution – which is what the executive order doing away with birthright citizenship essentially does.

Three trial courts found it expedient to ignore the limitations on their jurisdiction and issue injunctions purportedly applying in every jurisdiction in the land. The expediency of the executive order pushed the expediency of the trial courts to attempt to pause the enforcement of that order while the cases are decided.

The expediency of ignoring the limitations built into the means because of the justification of the ends threatens to undo a system of law that has stood the test of almost 250 years. What the Supreme Court does with this case may well determine whether our system comes apart at the seems or holds together for another 250 years.