Supreme Court Limits Nation-wide Injunctions

Nina Totenberg, NPR (“Supreme Court limits nationwide injunctions in birthright citizenship order“):

The Supreme Court in a 6-3 decision along ideological lines on Friday sided with the Trump administration’s request to limit universal injunctions issued by federal courts. The opinion in the birthright citizenship case was highly anticipated.

At issue was how the lower courts should handle President Trump’s executive order, which declared that the children of parents who enter the U.S. illegally or on a temporary visa are not entitled to automatic citizenship.

The majority opinion, written by Justice Amy Coney Barrett, didn’t rule on whether Trump’s executive order violates the 14th Amendment or the Nationality Act. Instead, it focused on whether federal courts have the power to issue nationwide blocks.

“Universal injunctions likely exceed the equitable authority that Congress has given to federal courts,” the conservative majority said. “The Court grants the Government’s applications for a partial stay of the injunctions entered below, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.”

Friday’s opinion asked the lower courts to reconsider their broad rulings in light of the Supreme Court’s opinion and otherwise “with principles of equity.” However, the opinion also said Trump’s birthright citizenship order can’t take effect for 30 days from Friday’s opinion, giving more time for legal challenges.

In and of itself, the ruling is not only what I expected but seems reasonable. Nationwide injunctions are a relatively recent phenomenon, and they’ve grown in scale tremendously in very recent years. It’s incredibly easy to forum shop, targeting jurisdictions where a ruling is almost guaranteed to go in one’s desired direction—in some cases, down to knowing which individual district court judge will hear the case because there’s only one.

At the same time, there needs to be a way to halt egregiously unlawful presidential orders like this one without each individual impacted being forced to file a lawsuit. I’ve offered several solutions to this, ranging from having appellate courts automatically hear such cases regardless of whether the administration appeals to requiring such cases to be filed in the DC Circuit to (my personal favorite) creating a special Constitutional Court for such matters. Eliminating the power of lower court judges to issue nationwide injunctions—which I agree with—without some alternative mechanism, though, is madness.

The NYT’s Charlie Savage warns, “With Supreme Court Ruling, Another Check on Trump’s Power Fades.”

[T]he diminishing of judicial authority as a potential counterweight to exercises of presidential power carries implications far beyond the issue of citizenship. The Supreme Court is effectively tying the hands of lower-court judges at a time when they are trying to respond to a steady geyser of aggressive executive branch orders and policies.

The ability of district courts to swiftly block Trump administration actions from being enforced in the first place has acted as a rare effective check on his second-term presidency. But generally, the pace of the judicial process is slow and has struggled to keep up. Actions that already took place by the time a court rules them illegal, like shutting down an agency or sending migrants to a foreign prison without due process, can be difficult to unwind.

[…]

Mr. Trump, rejecting norms of self-restraint, has pushed to eliminate checks on his authority and stamp out pockets of independence within the government while only rarely encountering resistance from a Supreme Court he reshaped and a Congress controlled by a party in his thrall.

The decision by the Supreme Court’s conservative majority comes as other constraints on Mr. Trump’s power have also eroded. The administration has steamrolled internal executive branch checks, including firing inspectors general and sidelining the Justice Department’s Office of Legal Counsel, which traditionally set guardrails for proposed policies and executive orders.

Mr. Trump, rejecting norms of self-restraint, has pushed to eliminate checks on his authority and stamp out pockets of independence within the government while only rarely encountering resistance from a Supreme Court he reshaped and a Congress controlled by a party in his thrall.

The decision by the Supreme Court’s conservative majority comes as other constraints on Mr. Trump’s power have also eroded. The administration has steamrolled internal executive branch checks, including firing inspectors general and sidelining the Justice Department’s Office of Legal Counsel, which traditionally set guardrails for proposed policies and executive orders.

[…]

But while the immediate beneficiary of the Supreme Court’s ruling is Mr. Trump, the decision also promises to free his successors from what has been a growing trend of district court intervention into presidential policymaking.

In the citizenship case, the justices stripped district court judges of the authority to issue so-called universal injunctions, a tool that lower courts have used to block government actions they deem most likely illegal from taking effect nationwide as legal challenges to them play out.

The frequency of such orders has sharply increased in recent years, bedeviling presidents of both parties. Going forward, the justices said, lower courts may only grant injunctive relief to the specific plaintiffs who have filed lawsuits.

That means the Trump administration may start enforcing Mr. Trump’s birthright citizenship order in the 28 states that have not challenged it, unless individual parents have the wherewithal and gumption to bring their own lawsuits.

[…]

In a rare move that signaled unusually intense opposition, Justice Sonia Sotomayor read aloud a summary of her dissenting opinion from the bench on Friday. Calling the ruling a grave attack on the American system of law, she said it endangered constitutional rights for everyone who is not a party to lawsuits defending them.

“Today, the threat is to birthright citizenship,” she wrote. “Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship. The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief.”

Justice Sotomayor also said the administration did not ask to entirely halt the multiple injunctions against its order because it knew they were patently illegal, and accused the majority of playing along with that open gamesmanship. She, like the other two justices who joined her dissent, is a Democratic appointee.

All six of the justices who voted to end universal injunctions were Republican appointees, including three Mr. Trump installed on the bench in his first term. The same supermajority has ruled in ways that have enhanced his power in other avenues.

[…]

In a separate concurrence, Justice Ketanji Brown Jackson offered a realpolitik take. The majority’s exegesis of what powers Congress understood itself to be granting lower courts when it created them in 1789 was a smoke screen of mind-numbing “legalese,” she wrote, obscuring the question of whether a court can order the executive branch to follow the law.

“In a constitutional republic such as ours, a federal court has the power to order the executive to follow the law — and it must,” she wrote before striking a cautionary note.

“Everyone, from the president on down, is bound by law,” she added. “By duty and nature, federal courts say what the law is (if there is a genuine dispute), and require those who are subject to the law to conform their behavior to what the law requires. This is the essence of the rule of law.”

But Justice Barrett accused her of forgetting that courts, too, must obey legal limits.

“Justice Jackson decries an imperial executive while embracing an imperial judiciary,” Justice Barrett wrote. “No one disputes that the executive has a duty to follow the law. But the judiciary does not have unbridled authority to enforce this obligation — in fact, sometimes the law prohibits the judiciary from doing so.”

In the particular matter of nationwide injunctions, I’m with Barrett. We’ve seen judicial overreach again and again and again. It’s simply absurd that a district court judge should be able to stop presidential action for months at a time as cases wind their way through the appellate process.

But, as Savage notes, this ruling is part of a larger pattern that has greatly expanded Trump’s power while he is brazenly flouting not only norms, as he did in his first administration, but the law and even the Constitution itself. Combined with a flaccid Congress, this stands our entire system of government on its head.

Sotomayor’s warning that, “Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship” seems absurd. Even though one can imagine Democrats who would wish to do these things—especially the first—it’s hard to conceive of one who could get the nomination and win the presidency who actually would. But I guarantee you that this court would not sit idly by and let that happen.

Yet, they nonetheless let a blatantly unconstitutional order ending birthright citizenship stand on the absurdly thin pretext that only the issue of nationwide injunctions, not the matter on which the injunctions were issued, was at stake. Would these six justices have gone along with that charade if gun seizures were at stake? Of course not.