U.S. Solicitor General D. John Sauer argued that Trump’s executive order restricting birthright citizenship prevents “the percolation of novel and difficult legal questions,” while the courts are operating “asymmetrically” by “forcing the government to win everywhere.” Sauer also posited that the courts can only grant relief to individual plaintiffs.
Kagan continued to chide Sauer.
Justice Ketanji Brown Jackson also provided input.
“Your arguments seem to turn our justice system—in my view, at least—into a ‘catch me if you can’ regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights,” she said. “Let’s assume for the purpose of this that you are wrong about the merits, that the government is not allowed to do this under the Constitution. Yet, it seems to me that your argument is, ‘We get to keep on doing it until everyone who is potentially harmed by it figures out how to file a lawsuit and hire a lawyer.’ I don’t understand how that is remotely consistent with the rule of law.”
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