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Supreme Court Gives Donald Trump a Late Birthday Gift

Yesterday, in its ruling in Trump v. CASA, Inc., the Supreme Court held that district courts generally do not have the authority to issue an injunction that applies to anyone other than the parties to the litigation. The Court holds that nationwide injunctions "likely exceed the equitable authority that Congress has granted to federal courts."

This case came to the Court on the shadow docket—three different district courts, in suits brought by pregnant women, several states and immigrants' rights groups, enjoined Donald Trump's executive order declaring that U.S. born citizens were no longer citizens if the father is not a U.S. citizen and the mother entered the U.S. unlawfully or temporarily. Trump decided that such people are not "subject to the jurisdiction" of the United States, putting them outside the Fourteenth Amendment's citizenship clause. In issuing the preliminary injunctions barring the administration from implementing this XO, the lower-court judges found that it likely violated the Fourteenth Amendment and was unconstitutional. Therefore, all three judges barred the administration from applying the XO to anyone, and not just the plaintiffs in the case. SCOTUS calls these injunctions "universal injunctions" and the majority uses that term pejoratively. (To be fair, we saw a fair number of these issued by Trump-appointed judges where the plaintiffs had clearly brought the case in a district where they were guaranteed a friendly judge who was willing to give them their requested relief. Judge Matthew Kacsmaryk, who issued a nationwide injunction barring the use of mifepristone, leaps to mind.)

But in the past, whether these types of injunctions were found to be appropriate depended on the facts of the case and an evaluation of the case's merits and the relative harm to the parties and other people who would be affected by the decision. But once again this Court has found a way to sidestep inconvenient facts (by ignoring them altogether) that might make it less palatable to deliver for Trump (see the U.S. v. Trump "don't talk to me about the facts" immunity case.)

Because the Court agreed to hear this case on an emergency basis (i.e., the shadow docket), it was fast-tracked and certain steps were skipped, such as thorough briefing on all the issues. What the actual emergency is, the Court didn't say. They certainly weren't concerned about Trump's... shall we say, novel reading of the Fourteenth Amendment's citizenship clause.

The Court was very savvy in circumscribing the issue: whether district courts have the authority to issue preliminary injunctions that apply nationwide. Narrowing the question in this way means the facts are irrelevant—they could be talking about an XO to rework a major pillar of the Constitution or Joe Biden's effort to cancel some student loans—what's the difference, really?

At oral argument, there was at least some nod to the unworkability of a nationwide federal executive order that is enjoined as to some parties but is implemented for everyone else. The justices also seemed to recognize that keeping things status quo while the litigation progresses*—in other words, leaving the injunctions in place—does no harm to the government.

But Justice Amy Coney Barrett, in her majority opinion, sweeps all that aside. She implies that the "recent" phenomenon of nationwide injunctions (which is not true—what's new is the judge-shopping for a wildly overreaching order) requires the justices to intervene. But this is a misdirection. Instead of addressing the actual problem (and the misuse of such injunctions is a problem), the Court seems to be exploiting a few bad actors to strike down an injunction that was appropriately applied nationwide, given the facts of the case. This approach suits this Court, as it can kill two birds with one stone: addressing nationwide injunctions in the abstract, while giving Trump another win on his signature issue of ridding the country of as many undesirables as possible. Barrett cites only the Judiciary Act of 1789 and the "lack of [a] historical pedigree" to argue that Congress did not authorize this type of equitable relief by the federal courts. But this ignores how this same law has been interpreted in modern times to allow judicial acts that also have no exact historical analogue, but follow general principles of equitable relief. The Court takes the easy way out by prohibiting generally nationwide injunctions instead of taking the time to craft a test as to when this type of relief is appropriate. The fact is that the shadow docket doesn't allow for such thoughtful and deliberative analysis.

The Court held that the injunctions apply to the pregnant plaintiffs only, for now, but ordered the lower courts to determine the scope of the injunctions as to the states. (There was no mention of advocacy groups like CASA.) The majority held that a universal injunction MAY be appropriate in order to ensure certain parties can obtain "complete relief." So, the lower courts could find that a blanket ban on enforcement of the XO is appropriate to give the states complete relief. The practical impact of this may be nothing if a nationwide injunction is granted in the cases brought by states. Or it could be that only those people who live in one of the states that brought a lawsuit are protected by the injunction. In that case, anyone with parents born outside of this country who did not enter lawfully could be stripped of citizenship while this case plays out, while newborns to whom this executive order applies won't be given social security numbers. It will be chaos.

In the absence of a nationwide injunction, class action lawsuits are a possibility (as the majority decision yesterday noted), but that takes time. And as these cases play out, if Trump gets an adverse ruling in the district court, why would he appeal and risk losing, given the limited reach of the district court's order? Meanwhile, the clock is ticking. The Court's ruling takes effect in 30 days; and the Court has already stayed an order (in another case on the shadow docket) prohibiting Trump from deporting people to third countries without due process. If the abuses we've already seen from ICE are any indication, we ain't seen nothin' yet. As Justice Sonia Sotomayor notes in her dissent, "By stripping all federal courts, including itself, of [the power to grant universal relief], the Court kneecaps the Judiciary's authority to stop the Executive from enforcing even the most unconstitutional policies."

Finally, one note about Associate Justice Brett Kavanaugh's concurrence. In it, he effectively advises the Trump faithful to bring more emergency applications to the Supreme Court for a stay of lower court orders. He advocates for a pretty stunning expansion of the Court's involvement in cases at earlier stages of litigation and in a way that lacks the transparency of the Court's normal docket, which is why it's called the "shadow" docket. As Trump pushes the boundaries of the law and the Constitution, and the federal courts (including judges appointed by presidents of both parties) are doing their best to keep him in check, Kavanaugh seems to be telling him and his administration that the Supremes stand ready to bail him out via the shadow docket. That's what we call "saying the quiet part out loud." (L)



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