Brian Lehrer: Brian Lehrer on WNYC. We're so happy to have Nina Totenberg with us, the NPR legal affairs correspondent, as she does nationally for NPR. Nina will help us make sense of a few of the critical issues currently before the Supreme Court. Beyond that, there's the bigger picture question of democracy right now, as we've been discussing on so many occasions on the show. One of Nina's recent pieces was about the clash between President Trump and the courts generally, and at what point it's a constitutional crisis. Nina, always nice of you to give us some WNYC time in addition to your NPR time. Welcome back to the show.

Nina Totenberg: My pleasure.

Brian Lehrer: Let's start with the birthright citizenship case argued on Thursday, which I think the public hasn't fully digested yet. I think our listeners might have been expecting arguments about the meaning of the 14th Amendment as it pertains to birthright citizenship, which is in there. Instead, they got arguments about whether one federal district court ruling in one part of the country can apply to the president nationwide. Why did it focus on that?

Nina Totenberg: Well, it could have done other things. For whatever reason, and only they know internally, they decided to grant the Trump administration's request to hear this case. The only thing that the Trump administration asked the court to do was to push back to lower courts and say, "You can't issue a nationwide injunction," meaning you in Washington state, and you in Massachusetts, and you in New Jersey. "You are not permitted to issue decisions that apply to the whole country until the case is further litigated and decided, ultimately."

My assumption is that the administration did that because Trump, after all, had issued this executive order that said children born in this country do not automatically have birthright citizenship, and I think the solicitor general understood that he would lose that case on the merits. They have been railing against judges all over the country on various kinds of things, stopping them temporarily, on a nationwide basis, from doing what they want to do, what President Trump wants to do. It comes to the Supreme Court, and the Supreme Court takes it on the terms that the administration wanted.

It could have said, "We're going to decide birthright citizenship also," but it didn't say that. The argument, which lasted more than two hours, was focused almost exclusively, but not entirely, about birthright citizenship. Whether you could have a nationwide injunction barring the enforcement of the president's executive order, which would have meant that, immediately and for the time being, until the issue was resolved, presumably by the Supreme Court, children born in the United States would not automatically be American citizens.

The lawyers arguing the case, rather, represented people who have been in this country seeking asylum, et cetera, and various other groups, and the states that have an interest in this. It was a very complicated-- Really, I thought, interesting, more interesting than usual argument because with the possible exception of Justice Thomas and Justice Alito, all of the justices seemed concerned about what it would mean to simply say you cannot have a nationwide injunction while an issue proceeds through the appellate courts and possibly to the Supreme Court.

Brian Lehrer: Right. If you couldn't do that, then you could be born to an immigrant in California and be a citizen, but if you travel to Texas, you lose your citizenship because the district court there sees the 14th Amendment differently. I don't know if I have the right jurisdictions, but that's an example of what could happen, right?

Nina Totenberg: It is, conceivably. I mean, if you're born in California, you would presumably be a citizen. It's not clear. That's the whole point. It's not clear what would happen if you traveled with this child to Texas or Louisiana jurisdictions where the judges are far more conservative from the Fifth Circuit Court of Appeals and might deem your child not to be a citizen. That's a different question, of course, than whether there is citizenship recognized in the Constitution to all children. The outcome would be, conceivably, a very patchwork series of state laws by virtue of the Supreme Court's actions.

Brian Lehrer: Yes, but, you know, my understanding is, and of course, you would know this so much better than me, that presidents of both parties have objected to this national application of a district court ruling. Conservatives may go judge shopping in Texas, for example, to get a judge who'll set a national precedent. Liberals might go judge shopping in California. Give us some background on that. When does a lower federal court ruling apply nationally, and when does it only apply to the one case or to the one region?

Nina Totenberg: Well, the judge issuing the nationwide injunction believes that it would prevent either a liberal court or a conservative court from doing something different from what he or she has just said because the status quo would be dramatically changed otherwise, while the case proceeds through the courts. Now, it didn't used to be that there was such overt judge shopping as there is today. There are liberal district court judges you can go to, but I would say that there is no appellate court that's as liberal as the Fifth Circuit is conservative.

What's more, the Fifth Circuit Court of Appeals allows people to bring cases to district court judges without having them assigned arbitrarily by the wheel, which most courts do. Most courts say the judge who's going to judge your case in Texas or in Northeast Texas, or Southwest Texas, is going to be set by the wheel, which will have a number of judges on it. They may all be conservatives, they may not all be conservatives. The way Texas does it and the Fifth Circuit does it is you can go pick your judge. That makes for far more hardline rulings from the Fifth Circuit Court of Appeals, which is, without doubt, the most conservative court in the country.

Brian Lehrer: Nina Totenberg, legal affairs correspondent for NPR with us. Even if you're just joining us, you probably recognize the voice. You said that the Trump administration probably leaned on this court jurisdictional, regional or national question because they knew they were going to lose on the actual birthright citizenship issue. Let's talk about that. I'm just going to read these first words in the 14th Amendment for listeners who don't know them. On its face, it seems clear what the outcome of this case would be.

"All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside." All persons born in the United States. Not ambiguous. I gather Trump is arguing that the clause subject to the jurisdiction thereof, gives them an opening. Can you describe what they're after and tell me if a theory has ever been tested in court, as far as you know?

Nina Totenberg: Well, the Supreme Court, 127 years ago, upheld birthright citizenship as enunciated in the 14th Amendment. It was a case involving a Chinese individual in San Francisco who had been born in the United States to parents of China. The court said it's very clear what the 14th Amendment says. It says it applies to everyone, and that in fact, if you read the next sentence, the only exceptions, which are enumerated in the 14th Amendment, are diplomats who are obviously citizens of a different country and have immunity, indeed, because they're citizens of another country and diplomats. An occupying army where there are children born to the occupying army.

Thirdly, a few Indian tribes for various particular reasons. Those are the only exceptions, and they're enumerated in the Constitution. The meaning that it applies to every child born in the United States was affirmed, as I said, 127 years ago by the Supreme Court and has been presumed and essentially reaffirmed since then. I know that Donald Trump has long believed that there is no such thing as birthright citizenship, but really, there is.

Furthermore, this has been a belief of his, which he reiterated at the signing of his executive order limiting birthright citizenship dramatically, not granting it to every child born in the United States. He said at the time, "This is ridiculous. No other country does it this way." That is not true. I'd say more than half the countries in the world do it that way.

Brian Lehrer: I think the Trump argument about birthright citizenship is, in part, the context of the 14th Amendment. At that time, after the Civil War, they were thinking about African Americans who had been enslaved. Undocumented immigrants having children here or people on some kind of temporary visas was the furthest thing from their mind. Birthright citizenship was never written to apply to the cases that we're talking about today. What would the argument against that be?

Nina Totenberg: The argument against that would be that the debate in the Congress seemed to suggest otherwise, and that the language, the text, is very clear. It does have exceptions, but they aren't exceptions for people who are not the children of slaves. That's not the way it's written. It was, I think, only two or three decades later that the Supreme Court ruled in a case involving a Chinese immigrant who was born here that the birthright citizenship is clearly what the writers of the 14th Amendment meant. I understand that the president has a different view, but it does not seem to have been the court's views ever since the amendment was enacted.

Brian Lehrer: You're saying the Congress's views at the time, which is [crosstalk]

Nina Totenberg: For Congress. They passed a statute in 1940 and again in the early '50s.

Brian Lehrer: Nina Totenberg with us for another few minutes. Nina, pulling back to Trump and the court overall, and the question of a fundamental crisis of democracy or constitutional crisis. You've reported that the court has sought not to precipitate a direct constitutional clash with Trump, but that at some point in the not-too-distant future, they may have to confront the president head-on. Where do you see that happening, if you have any idea?

Nina Totenberg: On late Friday afternoon, it came pretty close to saying to the Trump administration, "You--" It was in the case not involving Abrego Garcia, the guy who's been locked up in El Salvador, and the administration won't do anything to get him back, not involving his case directly. You remember a couple of weeks ago, the court said in that case, "Look, you have to do everything you can to facilitate his return to this country." There was some other language in it which was a little, I grant you, fudgy. Ever since then, President Trump and the President of El Salvador, sitting with Trump in the White House, have said they have no intention of returning this guy.

Well, the court was obviously ticked off. The judge who's supposed to be dealing with the Abrego Garcia case is still saying she's not getting any information of the kind she needs to make a decision in this case. Meanwhile, the ACLU went to the Supreme Court and said they are trying to deport these people, a whole range of people that they claim are MS-13, and another major gang.

That hasn't been proved. All they did was hand these guys a one-page thing in English, and they had no idea what they had to do. They had no lawyers. We couldn't even find out who they were or how to get to them. The Supreme Court on Friday afternoon, late Friday afternoon, said, "Enough of this. You are barred from moving any of these people for now until this is all straightened out." It was very specific about what the administration had to do to comply.

Brian Lehrer: Basically, at very least, you can't deport somebody with only 24 hours' notice when that doesn't give them enough time to challenge the grounds of the deportation, right?

Nina Totenberg: You have to make them available to their lawyers, et cetera, et cetera. All of this. They said it in the most lawyer-like way. For the Supreme Court, that was a real kick in the head. There's just no doubt about it. When you read that opinion, and I don't have it in front of me, it was a real kick in the head. It was the only time that in these cases, Trump went to his social media platform, and said, "This is an outrageous thing that the courts are interfering with this."

You could tell that he had been informed there was really nothing more they could do, his Justice Department, even if they wanted to, because the Supreme Court had said you can't do certain things. That, I think, is the most likely place where the president could come to blows with the Supreme Court.

Brian Lehrer: All three of his appointees, Kavanaugh, Gorsuch, and Coney Barrett, voted against him on that case. How important is that to you, covering the Supreme Court as you do, in signaling where there's going to be a line in terms of setting a one-man presidential rule in the United States, if that's not overstating it?

Nina Totenberg: I think it's pretty important. Justice Kavanaugh wrote a concurring opinion, but still, they were all on board for this much. At some point, having the president continue to defy lower court orders about this stuff and having had the administration clearly, in the court's view, misrepresent the timeline in this case, I think they're all pretty on board for the fact that they're going to hold the line here.

They're not just going to let people, I think, be just deported randomly without having a hearing. Remember that it was this court that said you have to do this by habeas corpus. You have to go individually, one at a time, and prove or attempt to prove that whatever they're saying about you is untrue and that you should be able to stay in this country and seek asylum or at least make your immigration claim. I think the court thought, when they did that, that the administration would comply with that. It clearly tried to run rings around what the court order was. The justices, a majority of them, seven to two, are clearly not happy.

Brian Lehrer: NPR legal affairs correspondent, Nina Totenberg, thank you, as always, for everything you do to keep so many Americans informed about what's happening at the Supreme Court and in other legal affairs. Thank you for joining us today.

Nina Totenberg: Thank you for having me.

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