SCOTUS: Trump v. CASA — No Nationwide Injunctions re: Birthright Citizenship EO

The U.S. Supreme Court issued a decision in Trump v. CASA today. This is the case concerning suits brought by individuals, organizations, and states to enjoin the implementation and enforcement of President Trump’s executive order purporting to end birthright citizenship. Plaintiffs won in every district court where they sued and those district courts issued “universal injunctions” intended to stop the Trump Administration from applying the executive order to plaintiffs and anyone else. The Trump Administration appealed each of these injunctions and, in every case, the relevant Court of Appeals denied their request to stay the injunctions.

Enter SCOTUS. 

Justice Barrett writes the majority opinion and is joined by Justices Roberts, Thomas, Alito, Gorsuch, and Kavanaugh. (Seeing that cast list, you know where this opinion is going.) There are three separate concurrences penned by Justices Thomas, Alito, and Kavanaugh respectively. There are two separate dissents authored by Justices Sotomayor and Jackson.

The majority does not hide the ball. The opening paragraph states: 

Traditionally, courts issued injunctions prohibiting executive officials from enforcing a challenged law or policy only against the plaintiffs in the lawsuit. The injunctions before us today reflect a more recent development: district courts asserting the power to prohibit enforcement of a law or policy against anyone. These injunctions—known as “universal injunctions”—likely exceed the equitable authority that Congress has granted to federal courts. We therefore grant the Government’s applications to partially stay the injunctions entered below.

(It’s page 24 when the majority writes that “the birthright citizenship issue is not before us.”) 

Back to the meat — how does the majority reach their conclusion regarding injunctions? Well in III-A, the Court writes: “A universal injunction can be justified only as an exercise of equitable authority, yet Congress has granted federal courts no such power.”

The majority places great weight on the decision of Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 319 (1999) and its holding that Congress has only granted district court the authority to exercise the equitable authority “traditionally accorded by courts of equity” at our country’s inception. And so the Court moves into a history lesson where it concludes “Neither the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding.” The sentiment is repeated: “Nothing like a universal injunction was available at the founding, or for that matter, for more than a century thereafter. Thus, under the Judiciary Act, federal courts lack authority to issue them.”

JFC. Why is the Court so moored with life in 1776? Their refusal to consider the impracticality of seeking injunctive relief on–best case scenario–a district by district basis or–worst case scenario–person by person basis is infuriatingly short sighted. If you think I’m being a little dramatic about the possibility of person-by-person challenges regarding birthright citizenship, consider the Court’s conclusion: 

The Government’s applications to partially stay the preliminary injunctions are granted, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue. The lower courts shall move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport with this rule and otherwise comply with principles of equity.

Justice Alito’s concurring opinion emphasizes his interest in my worst-case-scenario approach. It’s devoted to his admonition that “Federal courts should … be vigilant” against “Lax enforcement of the requirements for third-party standing and [FRCP 23] class certification” because “potential abuses of these tools” “would create a potentially significant loophole to today’s decision.”

Stephen Miller will be downing the champagne at brunch. 

-KitJ

Postscript: the dissents.

Given my kvetching about the majority’s refusal to move past 1776, it should come as no surprise that this part of Justice Sotomayor’s dissent rang in my heart:

the majority fundamentally misunderstands the nature of equity by freezing in amber the precise remedies available at the time of the Judiciary Act. Even as it declares that “‘[e]quity is flexible,’” … the majority ignores the very flexibility that historically allowed equity to secure complete justice where the rigid forms of common law proved inadequate…. Adaptability has … always been at the equity’s core. 

I should note that these words are deep into Sotomayor’s dissent. She starts by eviscerating the government for “insisting it will suffer irreparable harm unless it can deprive at least some children born in the United States of citizenship,” noting that the EO itself is “patently unconstitutional.” She ends by critiquing the majority opinion as “nothing less than an open invitation for the Government to bypass the Constitution.” 

Justice Jackson has the last word. Her dissent is fierce. She starts by writing that “The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.” She continues:

It is important to recognize that the Executive’s bid to vanquish so-called “universal injunctions” is, at bottom, a request for this Court’s permission to engage in unlawful behavior. When the Government says “do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,” what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution— please allow this. That is some solicitation. With its ruling today, the majority largely grants the Government’s wish. But, in my view, if this country is going to persist as a Nation of laws and not men, the Judiciary has no choice but to deny it.

The majority’s response? They find Justice Jackson’s reasoning “difficult to pin down.”