Expanding The Boundaries Of The Executive Order: The Executive Order After Trump v. CASA, Inc. (2025)
Introduction
The executive branch has been experiencing a revival in recent administrations. With each passing presidency, the pen has become mightier than the process as presidents christen their terms by signing record numbers of executive orders into law. An executive order is a directive issued by the President that allows the executive to institute policy. It does not require formal approval from Congress but must be based on the president’s existing constitutional or statutory authority. This presidential policymaking power was once used sparingly to address urgent national issues, but today it is wielded to reshape the national agenda with the stroke of a signature. In the first hundred days of President Trump’s second term, one hundred thirty-five executive orders were signed into law. Yet, his majority Republican-controlled Congress could only pass six bills into law through the regular legislative process. One of his most controversial was Executive Order 14160, entitled “Protecting the Meaning and Value of Citizenship”, in which he constrained birthright citizenship to apply only to those born to parents with legal citizenship within the United States. The executive order refuted the long-held interpretation of the Fourteenth Amendment, which states that “All persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the US and of the State wherein they reside” by remarking that the amendment has “never been interpreted to extend citizenship universally to everyone born within the US”. The order provoked an incredibly volatile political response that prompted twenty-two states and a private entity, CASA de Maryland and Asylum Seeker Advocacy Project, to sue the Trump Administration to block enforcement of the executive order “banning birthright citizenship”. The lawsuit was predicated on the parties' belief that Executive Order 14160 was a constitutional violation of the Citizenship Clause within the Fourteenth Amendment as previously quoted. The states and CASA sought injunctive relief in the District Court to halt enforcement. Three separate universal injunctions were granted, blocking the enforcement of the executive order nationwide. The Trump Administration appealed the cases, and the Supreme Court consolidated all parties into one case, Trump v. CASA, Inc. (2025).
The Supreme Court’s Shift in Trump v. CASA, Inc.
This course shifted suddenly after the Supreme Court, in Trump v. CASA, Inc. (2025), granted part of the federal government's emergency request to resume enforcement of the executive order. In a sharply divided 6-3 opinion written by Justice Amy Comey Barrett, the Court held that no historical basis substantiated that the universal injunction is a permissible federal judiciary power under the Judiciary Act of 1789. The Judiciary Act of 1789 was a landmark law passed by the first U.S. Congress that established the structure and jurisdiction of the federal court system. The ruling further held that it was impermissible for the court to use universal injunctions to halt an executive order, even if it views the presidential action as unconstitutional. Justice Barrett emphasized the need for judicial restraint in these circumstances, saying, “No one disputes that the Executive has a duty to follow the law. However, the judiciary does not have the unbridled authority to enforce this obligation, and sometimes the law prohibits the judiciary from doing so. This opinion marks a shift in the previous process of checking presidential power in which states, organizations, or individual litigants would sue in hopes of restraining the president from exercising unconstitutional authority by eliminating the option. In a political climate where executive order has become a primary source of legislation, this decision expands the power boundaries by removing a previously functioning check. This precedent can create a dangerously unitary executive to break down the separation of powers.
The Current Use Of Universal Injunction
In the first hundred days of the second Trump Administration, roughly twenty-five universal injunctions were issued from district courts. The reliance on this remedy and the number of orders issued has increased such that, “By the end of the Biden administration, we had reached ‘a state of affairs where almost every major presidential act [was] immediately frozen by a federal district court.’” Universal injunctions are a relatively modern tool; the first was used in 1963, and roughly one hundred thirty-seven universal or nationwide injunctions have been issued throughout the nation’s history. Universal or “nationwide injunctions” allow a district court to prohibit the enforcement of a law or policy against anyone throughout the country, instead of banning an executive official from enforcing a law or policy against just the plaintiffs involved in the case. The controversy surrounding them is primarily rooted in their ability to affect the entire nation, as referenced in the footnotes of the majority opinion of Trump v. CASA, Inc. (2025), “The difference between a traditional injunction and a universal injunction is not so much where it applies, but whom it protects. A universal injunction prohibits the government from enforcing the law against anyone, anywhere.” This has become vexing to the Trump Administration as it has halted the pursuit of many of his policy goals; however, many recent administrations have been affected by the district court universal injunctions. Most of these injunctions have happened within the most recent administrations as the majority opinion highlights, “ninety-six of them—over three quarters—were issued during the administrations of President George W. Bush, President Obama, President Trump, and President Biden.” Roughly thirty percent of the executive orders issued in Trump’s first 100 days were challenged in court. This trend becomes incredibly problematic if the only method of passing legislation consistently ends up being stunted by the court system, causing an inefficient system to become slower. Before Trump v. CASA, Inc. (2025), the universal injunction served a policy function. As presidents continued to push the boundaries of their powers through executive order, the universal injunction existed as a mechanism to check that power when it was perceived to pass constitutional boundaries.
This parallels how every administration has gone on to break the prior administration’s record for the number of executive orders signed. President Trump signed one hundred sixty-three executive orders to date, taking the record from the Biden Administration, while his Congress set a record low. This is notable because the president, with extensive policy-making powers, cannot order the expenditure of money. The power of the purse is congressional discretion, meaning the funds used to carry out these orders must have been previously appropriated to an executive function by Congress. Outside of this, there are no formal limitations on executive orders other than the requirement to be grounded in the Constitution or pre-existing legislation. Due to Congress's inefficiency in an environment of high partisanship, executive orders have been a fallback upon which administrations have begun to rely. Traditionally, executive orders have been an effective presidential response to congressional gridlock. However, this consistent reliance on executive orders has allowed Congress, especially on the Republican side of the aisle, to remain complacent. The majority party is not required to toil on the congressional floor to pass legislation; instead, it can rely on the executive to legislate for them. This allows Republicans to remain in power without being concerned about making controversial decisions, which might anger their constituencies. Lawmakers can instead point to animosity from voters towards the President when policy is unpopular.
The Need For a Universal Injunction to Prevent a Unitary Executive
Universal injunctions for the most recent administrations have been the barrier halting unfettered executive power of the pen through executive order. However, the Supreme Court has ruled that using them as a form of relief breaches the power given to them by the Judiciary Act of 1789. Barrett’s argument in the opinion rests on the fact that the universal injunction has no historical predecessor, which would make it reasonable to assume that the federal judiciary was never granted that power by Congress, and using it as a policy function overreaches beyond what the judiciary was intended to regulate. However, courts’ overuse of this remedy suggests that the issue stems from before the matter reaches the purview of the federal courts, which is indicative of a systemic issue if a drastic remedy is used so readily. Without the judicial branch, there are only two main avenues by which an executive order can be defeated: By a two-thirds vote in Congress, or by the following administration. These processes require time, with a congressional veto cumbersome and unlikely in a polarized environment. In controversial national issues that cannot be addressed state by state, like birthright citizenship, eliminating universal injunction will make it incredibly difficult to challenge an executive order.
This is the crux of the issue for the states: their lack of ability to fight an executive order with such far-reaching implications as EO 14160. The district courts cannot remedy birthright citizenship piecemeal through a traditional injunction, as one state cannot have a different definition of citizenship from another. In the past, the courts have overruled the concept that an individual could hold citizenship in a state but be a citizen of the United States, as seen in the infamous Dred Scott decision, which denied federal citizenship to enslaved people. Despite the fact that the Supreme Court has long overruled this definition of citizenship, the Trump Administration is seemingly dragging the country back to this convoluted definition of citizenship with EO 14160. The current administration is aware of this dilemma, subtly alluding to this within the first paragraph of the executive order: “That provision rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)”. The only way to address this is a blanket order; however, as Barrett acknowledged, “Children often move across state lines or are born outside their parents’ state of residence. Given the cross-border flow, the States say, a ‘patchwork injunction’ would prove unworkable, because it would require them to track and verify the immigration status of the parents of every child." Barrett clearly acknowledges this factor within the opinion. Yet, instead of providing a remedy, the court simply pushes the issue down to the lower courts for further proceedings. Addressing birthright citizenship via the courts seems nearly impossible, leaving the question to Congress or the following administration to remedy the damage.
To the conservative court wing, any unified national legal effort to block an executive order is considered judicial overreach. As Justice Barrett noted in her opinion, “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.” However, the question remains whether Congress will step in if the judiciary does not have the authority to enforce the executive’s constitutional obligations. So far, it has not. Even in the face of the serious constitutional concerns, Congress has not acted to halt the President's advances. Suppose the President does not answer to the judiciary on constitutionality and faces no opposition from Congress. In that case, they may be free to implement unconstitutional policies such as denying birthright citizenship simply because there is nothing in place to stop them.
References
[1] “The Constitution of the United States: A Transcription.” National Archives and Records Administration. Accessed August 17, 2025.
[2] “Protecting the Meaning and Value of American Citizenship.” The White House, January 21, 2025. https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/.
[3] Trump v CASA, Inc. (Supreme Court of United States June 27, 2025).
[4] Susan A. Hughes June 04, 2025. “Explainer: Executive Orders as a Governing Tool.” Harvard Kennedy School, June 4, 2025. https://www.hks.harvard.edu/faculty-research/policy-topics/democracy-governance/explainer-executive-orders-governing-tool.
Participants:
Written by Katie Castles
Edited by Alejandra Afanador
