My Prediction For The Birthright Citizenship Cases: The Court Will Rule Against Trump On The Merits And Bypass All Other Procedural Issues
There are certainly five votes on the meaning of the Fourteenth Amendment, but there are not five votes about nationwide injunctions.
On Thursday, the Supreme Court will hear oral argument in the birthright citizenship cases. The government's emergency application presents several significant issues about the scope of the nationwide injunctions and other pressing procedural issues. Will the Court settle any of these long-standing, nagging issues? I doubt it. There are certainly five votes, and probably seven votes, and maybe even eight votes, to declare the executive order unconstitutional on its face. That ruling would bring all litigation to a halt. But I doubt there are five votes to reach a consensus about nationwide injunctions. That's why the Court rushed oral arguments: to put together a merits ruling against Trump, and make this case vanish. Chief Justice Roberts has bigger fish to fry in his quest to save democracy from itself.
I think the Court will do something similar with the Alien Enemies Act cases. There are a host of complex procedural issues. Can you certify a class under Rule 23 for a TRO? What is the interaction between the APA and Habeas Corpus? What level of deference is due when the President declares an invasion? And so on. It is far simpler to find that Trump's order was invalid because reasons. The Chief will make up some rationale that does not foreclose a future president from exercising his statutory powers. I offered this prediction a few weeks ago:
I actually think the Court will bypass the 5th Circuit and all of the procedural issues by simply ruling against Trump on the merits.
Meanwhile, deep in the heart of Texas, Judge Hendrix declined to certify a class of the aliens in Abilene Division, even though the Supreme Court's granted relief to the "putative" class on a temporary basis nearly a month ago. I doubt the Supreme Court will ever let a case arrive from the Fifth Circuit. Far easier to affirm a ruling from one the sensible judges in the Beltway who orders planes to turn around.