Trump is currently touring the Middle East, focusing on Saudi Arabia and Qatar. The story that came out earlier this week about the potential Qatari donation of a luxury jumbo jet to the U.S. government for Trump’s use remains in the headlines; Trump is, of course, adamant that everyone should see this as a good idea. Also attracting controversy is Trump’s meeting with Syria’s new interim president, who six months ago was still on the U.S. Specially Designated Global Terrorist list and as such had a $10 million bounty on his head.

Tomorrow there will be an oral argument at SCOTUS, which is extremely unusual for mid-May. The procedural posture of this oral argument is also extremely unusual. The argument is coming from three different federal court cases that were filed earlier this year in the wake of Trump’s executive order on birthright citizenship; for simplicity I’ll refer to the consolidated SCOTUS cases as Trump v. CASA.

The crux of Trump’s order is to prospectively deny citizenship to babies born in the U.S. after February 19, 2025 where the father was not a United States citizen or lawful permanent resident at the time of birth, and the mother’s presence in the U.S. at the time of birth was either unlawful, or lawful but temporary (e.g., a tourist or student visa). However, this conflicts with how the 14th Amendment’s phrase “subject to the jurisdiction thereof” has historically been interpreted, including in SCOTUS precedent from an 1898 case called U.S. v. Wong Kim Ark.

In light of this, three different federal court judges – located in Maryland, Massachusetts, and Washington – have each issued rulings preventing the administration from implementing the executive order, with one of the judges calling it “blatantly unconstitutional.” Each of those judges issued what legal scholars have recently taken to calling a universal injunction, the intent of which is to bar the federal government from implementing the executive order with respect to anyone, not just with respect to the plaintiffs in the case.

This gets into an area of law that has been increasingly controversial in the last several years, namely the question of whether and, if so, under what conditions a federal judge should have the ability to issue a universal injunction. The theoretical concern here is that, given how the Constitution’s “cases or controversies” language has historically been interpreted, a universal injunction arguably feels like an “advisory opinion” lying outside of the power of the judiciary. SCOTUS has tiptoed around this issue several times in recent years, but to date has avoided taking it head on.

In the CASA v. Trump case down below (and the two other consolidated cases that the government also lost), the federal government filed an application to SCOTUS asking that the injunctions issued by those judges be limited in scope to the plaintiffs broadly construed (i.e., including residents of the plaintiff states). Rather than granting or rejecting that request, a month ago SCOTUS scheduled an oral argument.

But to discuss what, and to what end? This is an oral argument for which there is no “question presented”, as there normally would be in a SCOTUS case. As such it is unusually hard to know, prior to oral argument, what exactly SCOTUS is seeking to accomplish. Many observers seem to believe that SCOTUS is looking to finally take the question of universal injunctions head on. However at least one prominent observer instead thinks that SCOTUS is seeking to avoid the universal injunctions question and instead move directly to the merits of Trump’s position on birthright citizenship, notwithstanding that there hasn’t really been briefing on the merits. We’ll find out tomorrow.

In other legal news, yesterday the little-known U.S. Court for International Trade heard oral arguments in the first of several legal challenges brought against Trump’s use of the International Emergency Economic Powers Act of 1977 as justification for his imposition of tariffs sans Congressional approval. While appeals to contemporaneous expressions of Congressional intent have gone out of fashion as a means of statutory interpretation this century, I do find it compelling that while IEEPA was being debated a House report said that “emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems,” which would appear to preclude a view that the existence of persistent bilateral trade deficits can be fit into the “emergency” hole. More to come on this front.