The District of Maryland enjoins the executive branch from enforcing the new anti-birthright citizenship E.O.
The court explains why the new E.O. violates the 14th Amendment as interpreted in Barbara; good enough. But then see the bottom of p.26:
The Supreme Court has spoken: Children in the certified class are “citizens at birth.” Barbara, 146 S. Ct. at 2450. Barbara is the law of the land. The President must follow it. See Marbury v. Madison, 5 U.S. 137, 178 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).
I wrote some ideas here. We did not cover a different angle on the judicial supremacy/departmentalism debate: The President (and Congress) must be able to test the scope of judicial precedent by attempting to enact a new law or policy and seeing (via new litigation) whether the courts find the new policy consistent with their constitutional interpretation. The only way to trigger further judicial review is by enacting and enforcing a new policy, triggering new litigation challenging that policy.
And this is non-partisan. President Trump, the Court having declared invalid his initial broad anti-birthright-citizenship E.O., can attempt a scaled-back effort to limit birthright citizenship and see what the courts do. Similarly, President Biden, the Court having declared invalid his attempt to forgive student loans under one law, could attempt a smaller effort under a different law and see what the courts do (they declared the second effort invalid). But any President must have room to try.
