On Inauguration Day, January 20, 2025, President Donald Trump signed an executive order outlawing birthright citizenship.

In a previous My Turn in the Monitor, I wrote that the birthright citizenship clause of the Fourteenth Amendment “states a rule, not a principle.” It can be changed by constitutional amendment, but not by an executive order.

Federal judges from Maryland, Washington State and Massachusetts entered “universal preliminary injunctions” preventing Trump’s order from going into effect. The government appealed to the Supreme Court in what has been called “the birthright citizenship” case.

Except it isn’t about birthright citizenship. In fact, the government has not challenged the judges’ rulings that Trump’s order violates the Constitution.

Instead, the Trump administration’s appeal in Trump v. Casa, Inc. is limited to a single question: whether a preliminary injunction issued by a federal district judge is binding in every state and territory, making it “universal,” or whether it applies only to the parties to the case.

On June 27, 2025, the Supreme Court decided in favor of the government. The vote was six to three, with the conservative justices on one side, the liberals on the other.

This is not a constitutional decision. The rationale for the ruling is that under the law Congress enacted in 1789, a federal judge’s power today is the same as it was “at our country’s inception.” According to Justice Barrett’s opinion for the majority, the exercise of that power, both then and now, is limited to the parties before the court. Her opinion expressly declines to consider whether Trump’s order violates the Constitution because the government’s appeal does not raise the question.

As far as the majority is concerned, birthright citizenship is simply a pink elephant in the room.

Not so for Justice Sotomayor, who devotes the first ten pages of her 44-page dissent to looking the pink elephant straight in the eye. “Few constitutional questions can be answered by resort to the text of the Constitution alone, but this is one,” she writes. Its “patent unlawfulness” is reason enough, she maintains, to deny the government’s application. In other words, it’s a constitutional “rule,” which is what the Court decided in 1898 when it held that a man named the Wong Kim Ark, born in the United States, was a citizen.

In the balance of her opinion, Justice Sotomayor takes direct aim at the majority’s analysis of legal history, not to mention the fact that countless Supreme Court decisions have upheld universal injunctions. The Court’s ruling, she writes, “kneecaps the Judiciary’s authority to stop the Executive from enforcing even the most unconstitutional policies.”

The upshot of the Court’s decision is that birthright citizenship now exists in some states but not in others. It’s a form of constitutional hopscotch.

Here’s a puzzler to consider: The Twenty-second Amendment to the Constitution, ratified in 1951, limits a president to two elected terms. Suppose a president issues an executive order to the effect that a twice-elected president can run for a third term. Some states challenge the order, and a federal judge enters an injunction that the order is unconstitutional. Meanwhile, other states sit back and do nothing. What then?

Unless I’m missing something, Trump v. Casa says that the wannabe third-term president can run in the states that took a pass, at least until the Supreme Court says otherwise.

I come back to the distinction between rules and principles. If a constitutional question is reasonably susceptible to different answers, then a case can be made to support Justice Barrett’s opinion.

Not that long ago a federal judge in Amarillo, Texas, issued a universal injunction undoing the FDA’s approval of mifepristone, an abortion-inducing drug that had been approved by the FDA 20 years earlier. His faulty reasoning raised eyebrows, and his ruling didn’t stand.

The Supreme Court’s decision that lower court injunctions apply to the parties in the case, but no one else takes a one-size-fits-all approach. It fails to recognize the inherent truth that the dissent identifies—that some constitutional provisions do not lend themselves to alternative meanings. The rule limiting a president to two elected terms is one example. Birthright citizenship is another.

By limiting its appeal, the Trump administration managed to circumvent what the Fourteenth Amendment says—that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The Supreme Court complicitly let the government decide what the Court would decide.

According to the June 28 New York Times headline, the Court’s decision is a “win for Trump.” Maybe so, but it is a loss for common sense, democracy and the rule of law.

Attorney Joseph D. Steinfield lives in Keene and Jaffrey. He can be reached at joe@joesteinfield.com.