Begin by looking at the stakes in Trump v. Casa, the “nationwide injunction” case decided Friday, as laid out in oral argument by Donald Trump’s administration. In his argument before the justices last May, Solicitor General D. John Sauer made clear that the administration doesn’t want to follow the orders of District Courts and doesn’t think it should have to; that it may be willing to follow the decisions of the Courts of Appeals depending on whether it likes them; and that it will probably usually follow the decisions of the Supreme Court, but only as to the specific parties that bring the cases.
Everybody else can line up at the courthouse, take a number, and wait for their chance to prove that federal courts still have the power to enforce the law.
One at a time, please.
In practical terms, this atomized view of justice means that a vast swath of what we used to call “the rule of law” lies before us in the look of the doomed often assumed by Wile E. Coyote in the Road Runner cartoons after his own boulder crushes him.
The issue in CASA (a national immigrants-rights group, which was joined by individuals and states) was whether District Courts had the authority to block Trump’s Executive Order that purports to sweep aside the Constitution’s rule that “all persons, born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Trump’s bizarre order set aside the 14th Amendment’s text, a century of Supreme Court precedent, and the provisions of the federal Immigration and Nationality Act and substituted an ungainly new text that revoked the promise of citizenship to American-born children of immigrants, not only undocumented ones, but of many fully legal immigrants as well.
No one has given a satisfactory answer to where this rule, not only arbitrary but weirdly specific rule came from. The order does not even bother to claim that it is the “original public meaning” of the Amendment—since, of course, the very establishment of the “originalist” movement has long concluded that the 14th Amendment means what it says—that it covers every American-born child except the children of foreign diplomats exempted from “the jurisdiction” of the United States by diplomatic immunity.
The order essentially insists that Trump thought this would be a better deal and that, starting in 30 days, the executive branch would strip newborns of their constitutionally guaranteed status. As for the rest of us, it might be a good idea to find your birth certificate and those of your parents.
Three federal district courts concluded that the birthright citizenship order is almost certainly unconstitutional and barred the executive branch from enforcing it pending a final decision. The issue seemed headed to the Supreme Court, where it would be decided in the normal course of American law.
The administration, however, did an end run around that process. It filed an application with the Supreme Court that denied any interest in the issue of the order’s constitutionality. Instead, it said, it wanted the Court to look at whether district courts can tell the president he can’t do something he wants to do—to issue “universal injunctions” barring the government from, for example, stripping citizenship from any baby until the constitutionality of the order can be settled. The two things, the government suggested, have nothing to do with each other.
“If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to,” the famed legal scholar Thomas Reed Powell once wrote, “then you have a legal mind.” And of course, the six conservative justices of the Court’s supermajority have the finest, most of minds, so certified by their clerkships, law review publications, and the high esteem in which the Federalist Society holds them.And so the Court, in an opinion by Justice Amy Coney Barrett, recently lauded and pilloried as moving to the left, weighs limiting federal courts’ power to block unconstitutional executive policies without involving the messy business of the Constitution.
To answer this question, the majority pursues what Justice Ketanji Brown Jackson calls, in a solo dissent, “a mind-numbingly technical query: Are universal injunctions ‘sufficiently analogous’ to the relief issued ‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the of the original Judiciary Act’ to fall within the equitable authority Congress granted federal courts in the Judiciary Act of 1789?” She rephrases the question as is in fact, “a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?”
To which the majority answers, not so much. They argue that because of the themes it claims to find in the history of the British Court of Chancery, a federal court only has the authority to bind the parties before it. Everybody else has to get a lawyer and enforce the Constitution in a separate action. The executive will follow the law only as to those parties. As we say in the street, the rest of us are SOL (Shit Out of Luck).
Justice Sonia Sotomayor responded to Barrett’s opinion in a dissent joined by Justices Jackson and Elena Kagan. The order is, without a doubt, probably the most unconstitutional thing the executive branch has tried since the internment of Japanese Americans. As noted above, every source of law in the American system—constitutional text and history, judicial interpretation, statutory enactment, and executive interpretation—flatly contradicts the idea that the bizarre categories in the order are anything but a gross violation of one of the centerpieces of the constitutional order, of its promises of equality and due process of law. By permitting the government to argue against the lower court orders without considering the legality of the order itself, the majority establishes a presumption that presidents can do anything they want, legality be damned, unless specific parties can get orders that protect themselves. “No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship,” writes Sotomayor. “Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship.”
As a legal scholar, my usual role is to say on the one hand, on the other hand, and reasonable minds may differ, and so forth. It has been a long day (opinions come down at 7 a.m. in the Pacific Time Zone where I live), and I may play my part with ill grace. Of course, there are questions about the growing number of “universal injunctions” out of the lower federal courts in the past 25 years—orders that, for example, held up Trump’s “travel bans” in his first term, and blocked Joe Biden’s student-loan-forgiveness program during his term in office. The practice leads to “forum shopping,” where groups select a favorable judge. It can seem like the assumption by lower court judges of a policy-making role is incompatible with the judicial function.
But by allowing an attack on these particular injunctions—on orders that block the executive from changing the Constitution itself—the Court picked the worst possible case to consider that question dispassionately. Not only is the executive order itself grotesquely lawless, but the application of the Trump rule threatens administrative chaos, as low-level officials puzzle over Trump’s cryptic wording and try to apply it to babies with valid birth certificates but whose parents may be here on student visas. States, too, will face upheaval in their administration of federal programs—many of which provide funding only to American citizen children in hospitals and schools.
And there’s no argument that the Trump birthright citizenship rule is a good-faith interpretation of the law. It’s a power grab—the kind that distinguishes dictatorship from democracy. One prerogative of the state in Soviet Russia, fascist Italy, and Nazi Germany was to strip disfavored people and groups of citizenship and single them out for disfavored treatment and even liquidation. It is the last measure that should be afforded, a “presumption of regularity.”
But wait! You can still avoid unconstitutional orders by hiring your own lawyer! As Jackson says in her dissent, the decision creates “two different zones moving forward: one in which it is required to follow the law (because a particular plaintiff has secured a personal injunction prohibiting its unlawful conduct), and another in which it can choose to violate the law with respect to certain people (those who have yet to sue).”
That will surely comfort babies born after the 30-day grace period, whose parents may lack private counsel, or may fear claiming their children’s birthright because they may face deportation.
The majority sent the orders back to the lower courts with instructions to reconsider them in light of the new doctrine. Despite being subject to a kind of nice-court-you-have-shame-if-anything-happens-to-it caution by the majority and by Justice Samuel Alito in his separate opinion, one hopes these judges will not join this despicable executive coup. Some damage can be undone by using Federal Rule of Civil Procedure 23, which permits certification of a large class of plaintiffs if their cases fit together.
In the meantime, the Court has given the administration 30 days to prepare to enforce the order, for which the Solicitor General confessed the government is completely unready.
There’s no mistaking, though, that by deferring to this worst of all orders, the Court has signaled to the judiciary that it should get out of Trump’s way.
Again, I forsake my tut-tut don’t-worry role and say that my concerns echo Jackson’s: “I have no doubt that, if judges must allow the Executive to act unlawfully in some circumstances, as the Court concludes today, executive lawlessness will flourish, and from there, it is not difficult to predict how this all ends. Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.”
