Some Reasons to be Skeptical of Nationwide Injunctions

The Supreme Court in Trump v. CASA, Inc. should rein in the district courts' use of nationwide injunctions.

I disagree, on the merits, with President Trump's executive order denying birthright citizenship to children of non-citizens who are born in the United States because their parents were here without a green card. I will explain my reasons for disagreeing with the President in more detail in a future blog post. My reading of the Constitution, the caselaw, the scholarly commentary, and of our history leaves me persuaded that United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898), was correctly decided 127 years ago. Justice Gray's opinion in that case for six justices of the Supreme Court is far more persuasive and more thorough than is Chief Justice Fuller's dissent.

I disagree, however, with the increasingly aggressive issuance of nationwide injunctions by the federal district courts, including the nationwide injunctions at issue in Trump v. CASA, a birthright citizenship case which is presently before the Supreme Court. Article III, Section 2 of the Constitution explains that "The judicial Power shall extend" to nine, and only nine, categories of specific cases or controversies. The federal courts do not have the power to decide issues nor are they the sole expositors of the meaning of the Constitution.

The Constitution never mentions the word "interpretation." It never expressly grants any actor a power of interpretation and does not expressly grant courts a power of judicial review. The only powers granted by the Constitution are legislative, executive, and judicial powers. All of those powers require those who exercise them to engage in interpretation to ascertain the scope and limits of their powers (and the powers of other actors), but those powers of interpretation are incidental to the exercise of [the legislative, the executive, and the judicial power]. [Steven Gow Calabresi & Gary Lawson, The Meese Revolution: The Making of a Constitutional Moment 192 (2024).]

As former Attorney General Ed Meese explained in his October 21, 1986 speech on "Departmentalism" at Tulane University, all three departments of the federal government must interpret and enforce the Constitution when they perform their own distinctive functions. Congress must interpret and follow the Constitution when it makes the laws, the President must interpret and follow the Constitution when he executes the laws, and the Article III federal courts must interpret and follow the Constitution when they are deciding one of the nine categories of cases or controversies that they have jurisdiction to decide. Presidents Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin D. Roosevelt all said precisely the same thing as did Attorney General Ed Meese. [Steven Gow Calabresi & Gary Lawson, The U.S. Constitution: Creation, Reconstruction, the Progressives, and the Modern Era 111-114 (2020).]

It is true, as President Madison wrote, that "Without losing sight … of the co-ordinate relations of the three department to each other, it may always be expected that the judicial bench, when happily filled, will … most engage the respect and reliance of the public as the surest expositor of the Constitution" because of "the qualities implied in its members; … the gravity and deliberation of their proceedings; and by the advantage their plurality gives them over the unity of the Executive department, and their fewness over the multitudinous composition of the Legislative department." [Id. at 111-112.]

But President Madison's explanation as to why the Judicial department "attracts most the public confidence" applies rather uniquely to the Supreme Court and not to each and every one of the 667 individual permanent federal district court judges who have not taken senior status. When an individual federal district court judge issues a nationwide, or global, injunction directed at the President of the United States, it can only extend to the party who has standing to bring a Case or Controversy before the district court. Frothingham v. Mellon, 262 U.S. 447 (1923); Massachusetts v. Mellon, 262 U.S. 447 (1923). And standing in such a case depends upon there being (1) a concrete and particularized legal injury that is not speculative and hypothetical (2) that has been caused by the President and (3) that can be redressed via judicial review. Any remedial judicial injunction can apply only to the party or parties who brought the case or controversy and that had standing to bring the case or controversy in the first place.

It is not at all clear that any of the parties in Trump v. CASA has suffered a legal injury that warranted the issuance of a nationwide injunction. Such parties will surely exist if, and when, President Trump tries to deport a named non-citizen who was born in the United States to parents who were in the country without a green card, or if, and when, President Trump tries to deny a U.S. passport to such a person. But even then, the Article III district courts only have power to issue injunctions as to the parties who are actually before the court. Article III district judges do not have the power to review in the abstract the constitutionality of President Trump's misguided birthright citizenship order, which is what the lower federal courts did in Trump v. CASA.

No sane legal system would give any one of 667 district judges, acting alone, the power to set aside the actions of the President, in the abstract, as to some legal issue that annoyed someone or even that annoyed 20 State Attorneys General. Such a system creates an incentive for forum shopping and for individual judges to abuse their power. It prevents the deliberation of issues by many judges, and ultimately by the Supreme Court, which is absolutely necessary for the public to have confidence that our unelected judiciary is deciding cases or controversies according to law rather than for partisan reasons. It also hamstrings the President of the United States, who is chosen by all the people of the nation in an election that is widely considered to be the most important election that our nation holds.

Judicial review, ultimately by the Supreme Court, is a vital part of our American system of checks and balances, but the Framers of the Constitution quite deliberately chose not to give the Article III federal courts the power to issue advisory opinions rather than the power to slowly and deliberately decide "cases" or "controversies" of "a judiciary nature." The idea that any one of 667 federal district judges should act as a king on some particular issue is itself a threat to our system of checks and balances because it concentrates too much power, in too few judges, acting far too quickly. And it bears noting that federal district judges are often in practice selected by their home state senators and do not have the same stamp of national approval as has the Supreme Court.

The American people will not have, and should not have, confidence in the impartiality and soundness of judicial decision-making that occurs in the frenzied fashion in which it occurred in Trump v. CASA. It is time for the Supreme Court to set some limits on the inferior federal courts with respect to the issuance of nationwide injunctions.

Comments

[Bubba Jones]

No sane legal system would give any one of 667 district judges, acting alone, the power to set aside the actions of the President

That's why we have Appeals courts.

It's batshit insane that when the President issues an unconstitutional order that affects millions of people, that each and every one of them must sue.

Do we really need a separate lawsuit in every district court?

[Mr. Bumble]

This isn't Burger King where you can have it your way.

[Drewski]

So you agree with the status quo, that district courts can issue national injunctions as necessary, and that no change is needed to satisfy those who want it "their way." Glad you're on board.

[Dr. Ed 2]

This would have ended in an instant if Brandon had been hamstrung by MAGA judges.

[Rossami]

Appeals courts are not sufficient to repair the damage from overbroad injunctions.

If you wish to sue on behalf of an entire class of people, we have established ways to do that. The current 'national injunction' abuse entirely bypasses that protocol.

[Bubba Jones]

OIC. The argument is that the courts didn't go through the process of certifying a class action.

It's totally not a complaint about the outcome.

Yes, "conservatives" are all about due process these days.

I haven't seen an example of a national injunction that wouldn't pass muster as a class action.

[Rossami]

I can't speak for others but I've been consistently opposed to national injunctions for the past several administrations. Even when I agree with the policy outcome, they're the wrong way to go about it.

And contrary to your claim, many (arguably most) national injunctions would fail as class actions - or at least, would be bounded down to just the class who can actually show damages

[Josh R]

In the present case, would certifying a class action succeed?

[Rossami]

Possibly. I don't see any unsuperable problems to certifying a class of people actually subject to executive order 14160.

[MollyGodiva]

That is the point, for the government to make it expensive and slow to get remedies to illegal policies and actions. Those fighting for freedom and civil rights do not have unlimited funding and the government wants to overwhelm them and drain their accounts. Then no one would be able to stop the government.

[Riva]

So, you have to violate the constitution to save the constitution? Just like you wanted to remove the democrats' main political opponent from the ballot to save democracy. And of course, the little effort to jail that same target, all to save democracy again. Or something.

Basically. you are not arguing for the constitutionality or legality of the lower court overreach. You just think it would be easier for the issues you favor if the lower courts had more power at this time. If you don't like the constitutional, amend the constitution. If you want to expand the statutory limits of the lower courts' jurisdiction, win an election.

[MollyGodiva]

There is nothing in the constitution that provides any guidance in regards to this issue. When the president is acting lawlessness, the courts need a way to counter that.

And Trump is ineligible for office under 14A3S, but no one is wiling to enforce that other that CO.

[Don Nico]

"Trump is ineligible for office under 14A3S"
Says you, Molly. When you are elevate to SCOTUS, I'll listen.

[Don Nico]

Yet that is precisely what Justice Jackson argued for trying to cast the the idea of getting rid of nationwide junctions by circuit judges as stupid.

[Don Nico]

In fact she was arguing for nationwide TROs. If her argument were cogent, there'd never be a circuit split and if the TRO were nationwide it would be appealable. Fact is that that all parties like the present forum shopping when they are successful at it.

[Mr. Bumble]

https://www.scotusblog.com/2025/05/announcement-of-opinions-and-oral-argument-live-blog-for-thursday-may-15/

[wolfefan]

Perhaps nationwide injunctions are overused, but there are certainly some cases that call for them and this seems to me to be one of them. Are people really suggesting that, for example, if you're born in the 1st Circuit you're a citizen but not if you're born in the 3rd? I also note that w/the exception of Sam Bray, a lot of people concerned about nationwide injunctions now didn't express the same concern say, oh, 3 or 4 years ago...

[Roger S]

We have lots of laws that vary from state to state. Yes, it would be bad if all the birth tourists went to a particular state, but maybe Trump will put an end to that.

[MollyGodiva]

The point of 14A is to have uniform citizenship laws.

[Rossami]

The point of the 14th A was to stop states from creating their own fractured definitions of citizenship. Nothing in the 14A (or any other federal law or constitutional clause) has ever forced uniformity across the federal districts until a case gets up to the US Supreme Court.

For an obvious example, look at how the different districts still enforce 2A issues. The 14A is no different.

[David Nieporent]

The point of the 14th A was to stop states from creating their own fractured definitions of citizenship.

…by creating a universal nationwide definition.

[Rossami]

Which, like the univeral nationwide definition of allowable gun law (governed by the 2A), free speech (governed by the 1A), what counts as a reasonable search (governed by the 4A) are all subject to varying interpretations by the different district courts (until, that is, SCOTUS finally steps in on each individual issue).

[Josh R]

In this case, don't we have over 125 years of unbroken precedent that strongly suggest we have uniformity that justifies a nationwide injunction?

As Kagan hypothesized, the government is going to lose at every step until the merits reach SCOTUS and then they might win. But, why would the government appeal to SCOTUS unless it was sure it was going to win? Instead, it could accept the results for the plaintiffs in the cases it lost and apply the EO to everyone else until the multitudes file their own cases.

[Rossami]

"125 years of unbroken precedent" for a trend that only started in significant volume 20 or 30 years ago? No. Uniformity of law is a proper goal but it must be balanced by other equally proper goals. For example (as the 7th Circuit said in City of Chicago v Barr), government (including eventually SCOTUS) benefits from multiple courts of appeal weighing in on an issue. You also get potentially bad results when the injunction sweeps up cases that are not worth fighting with cases that should be fought hard.

We have a system that lets matters percolate up through the multiple districts because it works and (eventually) leads to better decisions than a single linear process.

[David Nieporent]

Sometimes "percolation" is beneficial. Birthright citizenship is not one of those times. It doesn't present a novel issue in which the lower courts are closer to the ground and can thus provide a perspective which might not be available to SCOTUS. It presents a settled issue in which all the arguments on each side are public and well-hashed out already.

Let's face it: the administration keeps losing (because it has to, because of precedent), so a call for percolation is just a hail mary attempt by Trump to find one rogue lower court to rule against birthright citizenship.

[Josh R]

As not guilty pointed out, it's more than 30 years of court precedents. Moreover, the practice has been the same for even longer than those precedents.

[Stephen Lathrop]

For an obvious example, look at how the different districts still enforce 2A issues. The 14A is no different.

Rossami — An example obvious only in context of the militia right. An originalist analysis based on norms practiced by academic historians shows an original intent to leave various gun rights to the various states, to tailor according to their own populations' preferences. It is not a close historical question. The historical record is replete with documentation to show support across the various states for the militia right. The record is bereft of any documentation—none at all prior to ratification of the Bill of Rights—to show a personal self-defense right to be applied nationally.

Consider. At the time of the founding, Virginia would never have ratified Pennsylvania's State Constitutional right of personal self-defense with a firearm, lest it turn into an argument anti-slavery agitators might use to foment servile rebellions. Subsequent history reconfirmed that unambiguously, when southern states acted to suppress even printed or handwritten advocacy for arming blacks, whether enslaved or free.

[SRG2]

Strange argument by Calabresi, serving up an absurdly narrow definition of judicial power unwarranted by any reasonable original meaning., English courts had the power to enjoin long before the Constitution was drafted and that power was assuredly part of judicial power, as was the power to interpret law. Further, at the time there being a distinction between law and equity but no distinction being made in Art III, you can't argue on that basis either.

Finally, English courts of first instance having the power to enjoin, and the Constitution not restricting delegated judicial power - noting only that Congress could establish inferior courts, not dictate their powers, there's nothing unconstitutional about universal injunctions. The division into circuits is an artefact of legislation, not inherent in the Constitution.

So the only issue is whether the case is limited to the actual plaintiffs. And here the consequences are evidently absurd if it is.

[Roger S]

Scotus could put a stay on all the injunctions.

[SRG2]

They can indeed.

[Riva]

It is an warranted and absurdly narrow definition of the judicial power to note that Art. III courts lack the power to issue advisory opinions? Yeah, crazy talk.

[David Nieporent]

An injunction is not an "advisory opinion." It's an order.

[Riva]

"Article III district courts only have power to issue injunctions as to the parties who are actually before the court. Article III district judges do not have the power to review in the abstract the constitutionality of President Trump's misguided birthright citizenship order, which is what the lower federal courts did in Trump v. CASA."

[David Nieporent]

Congrats on being able to copy-and-paste. But the observation makes no sense in this context; the courts are not reviewing the issue "in the abstract." The case presents a purely legal question. It is possible that there are different categories of people to which different rules apply — I mean, we know of some, like children of diplomats — but within those categories, it's a question of law applicable to all of them. To say, "Garcia and Rodriguez argue that this executive order is unconstitutional, because the 14th amendment says that all children of illegal aliens are citizens. They are correct, but the government can nonetheless continue to unconstitutionally treat every such child except Garcia and Rodriguez as noncitizens" would be nonsensical. It's a facial challenge, not an as applied challenge. And once that decision is reached, the question becomes what the appropriate remedy is. And the answer is that the remedy is to order the government — which is a party before it — not to enforce the EO.

[Riva]

No, what this means is that 667 district judges, acting alone, lack the power to dictate nationally binding rules to the President. Art. III powers are not unlimited. If you think the system should work differently, amend the constitution, or change the laws (to the extent such change would comport with constitutional limitations). Sorry if this is inconvenient to some legal activists. Them's the breaks in our system of checks and balances.

[SRG2]

change the laws (to the extent such change would comport with constitutional limitations)

The irony!

[David Nieporent]

MAGA fanatics make such weight about the unitary executive based on the fact that Article II says that the executive power is vested in the president, and therefore other members of the executive branch do not have any independent authority.

But Article III says that the judicial power is vested in the Supreme Court and in the inferior courts. So all of this dismissive MAGA talk about "667 [sic - it's 677, though it's actually higher than that because of senior judges] district judges" is disingenuous. While district court judges are subordinate to the Supreme Court, they wield the full judicial power. They have exactly as much power to bind the executive branch with their decisions as SCOTUS does.

[Riva]

These silly fanatics. What makes them think all executive power is vested in the president just because the Constitution says all executive power is vested in the president?

And just so you know, that’s not quite what the constitution says about the lower courts. The lower courts were created by Congress. Congress establishes their jurisdiction, consistent with constitutional limits. Do you really think a ruling by a district judge in Ohio can control a district judge in California? Or, as noted in this article, they have the power to decide abstract matters for parties not before them?

[SRG2]

It doesn't say "all". And the Constitution assumes that some inferior officers are carrying out their affairs autonomously, though under presidential oversight.

Further, it seems that those in favour of the unitary executive idea - yourself not excluded - seem to think that any power not explicitly delegated to the legislature of judiciary goes to the president, 9A and 10A and constitutional jurisprudence notwithstanding.
"

[Riva]

Where else is the executive power vested under the Constitution? Is it written in more invisible text on the back?

[David Nieporent]

Just so you know, that is what the constitution says about inferior courts.

I don't think they have the power to decide abstract matters for parties who are before them. But they have the power to decide concrete matters for parties who are before them — and the U.S. government is before them.

[Riva]

Cases take at least two opposing parties. Maybe they do things differently in whatever reality you live in?

[not guilty]

Riva, it's bad form to quote from materials without identifying the source being quoted.

[David Nieporent]

I agree, but in this case he was quoting the post itself, so I think it's okay.

[Darwinnie]

Bro would overrule Marbury v Madison and let both the Executive and Legislative branches decide what rules they want to follow.

[SRG2]

Bro would also disagree with this article on Separation of Powers...

https://liberalarts.tamu.edu/pols/wp-content/uploads/sites/20/2020/09/Calabresi-Rise-Fall-of-the-Separation-of-Powers.pdf

[Darwinnie]

“ The federal courts do not have the power to decide issues nor are they the sole expositors of the meaning of the Constitution.”

There’s really no other conclusion than to say the courts can’t dictate constitutional meaning to the executive or legislative branches. The article you cite was from 2012, before Calabresi went MAGA and Trump 2.0 came to power. That’s what they’re going for now—total capitulation to Trump—make no mistake.

[Riva]

Bro argued no such thing.

[windycityattorney]

Already noted above; but you shouldn't need an individual law suit in every single district when the action complained of is nationwide in scope. The executive order denying birthright citizenship applies to the whole of the country because it directs federal agencies to act (or refrain from acting and issuing necessary documents) of any person born in the US who doesn't meet the executive order's conditions.

Unconstitutional orders are ultra vires...void ab initio. If the 9th, 3rd and 6th districts enjoin the act but the other districts don't because someone hasn't filed in that district yet... and if ultimately the executive order is struck down as unconstitutional... the fed govt agencies in question would be issuing citizenship documents for some and denying to others based solely on geographic happenstance. Then later would have to fix the mess. It's idiotic and a total waste of judicial economy and federal resources.

The govt didn't appeal the legality/constitutionality of the executive order...just the scope of the various injunctions (trying to narrow the scope). That tells me all I need to know about what they think about their chances on the merits. So if they win...some people get documents other do not then in ~2yrs...govt loses on the merits and everybody denied documents while this plays out is then entitled to them.

How much damage is done in the meantime??

[TheAmazingEmu]

I've become increasingly convinced that the issue of forum shopping and nationwide injunctions is real, but needs to be dealt with by Congress. I've suggested before that a District Court Judge can certify an issue to a specific Appellate Court who has the power to issue national injunctions.

That being said, the government has an obligation not just to obey a writ issued by a court (same as any other party), but to ensure the law is applied as consistently as possible. This means if an injunction is applicable to the government to enjoin their action against one person, that injunction would be applicable to the government against other people in identical circumstances. The government shouldn't be causing irreparable harm inconsistent with that court's reasoning. If the current standard is abuse of discretion, I think the Supreme Court, through oversight rules, could recognize that nationwide injunctions from district court judges should be narrowly tailored for a compelling need and used as a last resort, but I don't think there's anything in the power of the judiciary that would prohibit them from tailoring their remedy to best suit the situation.

[Zarniwoop]

I've become increasingly convinced that the issue of forum shopping and nationwide injunctions is real, but needs to be dealt with by Congress.

Or any request for a nationwide injunction is automatically assigned to a completely random 3-judge panel picked from the pool of all 667 district court judges.

Poof goes forum selection, individual judge shopping, and “single self important judge” problems.

[Dan Schiavetta]

Once one judge rules against the Government on an issue of law, the Government is collaterally estopped from arguing its position elsewhere.

[MollyGodiva]

That is not true. We see examples to the contrary every week.

[Dan Schiavetta]

See the discussions in City of Chicago v. Barr, 961 F.,3d 882, 915 (7th Cir. 2020), and Mahoney v. United States Capitol Police Board, 2024 WL 4235429 at *9-10 (D. D.C.).

[Rossami]

I looked up your Chicago v Barr case and found on page 62-63 a discussion that exactly contradicts your claim. That discussion cites to Standefer v US which held that while private parties might be estopped under such circumstances, the government is explicitly allowed a different standard and lays out all the reasons why.

[Dan Schiavetta]

The court there was talking about the Government's right to argue a different position in future suits. I'm talking about being bound by a decision on a certain point.

[Bob from Ohio]

"Government is collaterally estopped from arguing its position elsewhere."

I'd like to se some SCOTUS authority on this assertion. Have any?

[David Nieporent]

So I listened to the oral argument here, and while it's always perilous to read too much into that process, I think the government is going to have a tough row to hoe on this issue.

I really don't understand why they picked this case. (And by "they" I mean both SCOTUS and the administration.) It's such a terrible vehicle for challenging universal injunctions.

[JoeFromtheBronx]

Administration picked it, perhaps, since someone felt they needed to bring a birthright citizenship suit after all the losing & this was the strongest argument they had.

[Zarniwoop]

I’m still thinking that the majority won’t rule UIs are never allowable, will allow this one, and issue guidance to limit them. Some of the limiting guidance proposed by Plaintiff and amicus counsel might have legs, either the “facial constitutional challenge” or “robust showing on public interest” strike me as meritorious. Put some teeth into the less-used Winter factors.

Thomas will issue a “never allowed” dissent.

[David Nieporent]

I thought that Trump's lawyer (Sauer) did the best he could with what he had to work with; because Trump fires anyone who undermines him in any way, the guy could not make any concessions of any sort that might have assuaged any of the justices' concerns.

I thought the states' lawyer — NJ's solicitor general — did a great job, and I thought the other lawyer for the respondents did a good job.

[jb]

Yeah, I thought Feigenbaum was really good as well.

And also totally agreed that this case was close to the worst possible vehicle for the government's argument against universal/nationwide injunctions. I imagine Thomas and/or Alito will still manage to side with the government, but in the discussion it didn't seem like anyone was skeptical of the claim that class actions couldn't substitute for universal injunctions for states, or that the states likely needed one here.

You may be right that Sauer was doing the best he could under the cirumstances, but it felt like he had a ludicrously weak hand. At some point Kavanaugh was asking about the feasibility of turning on the policy in 30 days and seemed to really beat him up over his inability to provide a substantive answer. In general, he seemed to face much more hostile questioning than the respondents' counsel.

It wouldn't surprise me if the Court just acknowledges his first category of universal injunction (necessary to provide equitable relief to the plaintiffs) and punt on whether or not there should be other kinds. Best case scenario for the government would actually be if they DIGed this so they could avoid the L and choose a better case.

[David Nieporent]

You may be right that Sauer was doing the best he could under the cirumstances, but it felt like he had a ludicrously weak hand. At some point Kavanaugh was asking about the feasibility of turning on the policy in 30 days and seemed to really beat him up over his inability to provide a substantive answer.

To be fair, what could Sauer say? "Well, we honestly never really bothered to think about that because we knew the EO would never go into effect."

In general, he seemed to face much more hostile questioning than the respondents' counsel.

I'd characterize it more as skeptical than hostile. Several of the GOP-nominated justices seemed to hope he could give them something to work with, but he really couldn't.

But really, as I said, his problem was that he couldn't make any concessions at all. "Class cert? I can't say it's warranted here because I'd get fired, but I can't say it's not because that would undermine my case. So I'm not prepared to discuss that." And "Would we obey a Circuit Court ruling? Eh, who knows? Generally we do, but I can't commit to that, because I'd be fired."

[not guilty]

I am surprised that there was very little discussion of what does or does not constitute an "emergency" so as to justify interim relief from SCOTUS. How is it emergent for the federal government to be required to follow law that has been settled for at least 127 years?

[Glaucomatose]

It's ego. Listen to how Sauer so belligerently kept insisting that no, actually our merits arguments are really good here, I swear, and in the process kept failing to even engage with hypotheticals posed by Gorsuch, ACB and Kagan, and in my mind weakened an already weak position by doing so. Trump and his appointees seem to take the view that nobody would dare tell them they're wrong, and so much of their litigation posture is almost a dare to the judiciary to do so.

[jb]

I think David Nieporent is probably correct in that it's not so much that Sauer himself necessarily believes his position (although he can't reasonably concede the merits without the whole thing falling down) so much as he can't concede anything because Trump has signaled that he'll fire attorneys for doing so.

But man, if that's how he's going to have to argue all of his cases, his term as SG is going to be really rough. It would be interesting to go back and look at his work as Missouri SG to see if he was a more effective advocate in that context.

[Darwinnie]

You give the guy too much credit. Don’t do that. He’s as much a hack as Bove and Biondi.

[maxparrish]

That was my thought as well. Why fight to remove injunctions over a background issue that is both highly divisive and very likely doomed on its own merits?

Moreover, until Trump's bad faith and aggressive assault I was very sympathetic to removing that kind of injunction power from district courts. Suddenly we now see its utility against bad faith abuse of the law by rogue Presidents...another unforced error by the administration.

[wvattorney13]

I tend to agree but I come from the other side of the political spectrum. I think that there are some good and powerful arguments in support of the EO, but the lawyers handling the cases have to know that argument might get the support of Thomas and Alito at most. A 7-2 loss.

And even the middle three of Roberts, Barrett, and Kavanaugh will see the issue as one of rather compelling need and importance to get a ruling in the Plaintiff's favor very quickly. Whatever motivation a majority had to provide relief from nationwide injunctions is presented with a rather sympathetic case of Plaintiffs (young and unborn children) who did nothing wrong except be born in a place where their parents were unlawfully present.

Perhaps, as you said, the middle three Justices may have actually been shown a case where nationwide injunctions are a good thing and the administration will have squandered a victory by arguing it in the most unappealing vehicle imaginable.

[Stephen Lathrop]

I really don't understand why they picked this case. (And by "they" I mean both SCOTUS and the administration.) It's such a terrible vehicle for challenging universal injunctions.

Nieporent — Reminds me in a very general way of the consensus legal views on this blog prior to the extra-long delay in getting to the decision in Trump v. United States.

My question is whether the apparently misjudged choice of vehicle is more indicative of misjudgment among this legal community, or misjudgment by the Trump administration about what it can expect from this Court. Didn't SCOTUS have power to say, "What nonsense, the case stands as decided below. We are not going to hear it?"

What does the fact that the argument is taking place at all tell us about what to expect? I would welcome the reassurance of being told I don't understand the legal posture, or any other expert explanation for why I am wrong to feel what I am seeing is not good.

[David Nieporent]

Didn't SCOTUS have power to say, "What nonsense, the case stands as decided below. We are not going to hear it?"

Yes. Indeed, there are virtually no categories of cases left in which the Supreme Court is required to hear an appeal. However, the appeal hear yesterday isn't even about the merits of the birthright citizenship issue; it's solely about the issue of universal injunctions.

[JonFrum]

Trump - or any other president - should draw a line in the sand and tell district court judge to go pound it. Once and for all. Simply ignore the court.

[David Nieporent]

A president who did that would invite Second Amendment solutions.

[Mr. Bumble]

From whom?

[Glaucomatose]

From people who realized that the law was on their side but that the government wasn't constrained by that law anyway. The dispossessed tend to be the ones most likely to lash out historically.

[David Nieporent]

All patriotic Americans.

[Bruce Hayden]

Yep. Probably more patriotic than those who live in a lefty bubble, and understand the reason that we have a 2nd Amdt and why Thomas Jefferson essentially suggested frequent revolutions. He said “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”

Do you seriously believe that it is patriotic to facilitate the entry into, and obstruct the removal from this country of rapists, human (including child) traffickers, drug suppliers, violent gang embers, etc, without scrutiny? They are illegal aliens for a good reason - if they were properly vetted and scrutinized, they would be jailed, instead of being allowed into this country as legal aliens. And for the otherwise law abiding illegal aliens is it really patriotic to require the rest of us, many having ancestry here for upwards of 400 years now, to pay for their school, health care, feed, lodging, etc, just because they came here illegally? Why do you consider that patriotic?

[David Nieporent]

1) This case has nothing to do with the entry of illegal aliens into the U.S. This case is about birthright citizenship.

2) But the issue we were discussing in this subthread has nothing to do with the specific merits of birthright citizenship. The issue we were discussing in this subthread was a president yelling, a la Judge Dredd, "I am the law!" and ignoring the courts. A president who declares himself above the law is ipso facto a dictator, and it is patriotic to remove him.

[SRG2]

Do you seriously believe that it is patriotic to facilitate the entry into, and obstruct the removal from this country of rapists, human (including child) traffickers, drug suppliers, violent gang embers, etc, without scrutiny? They are illegal aliens for a good reason

Who makes the determination that someone falls into any of the categories you mention? And why are authoritarians so cripplingly stupid that they invariably miss this point?

And presumably judging by your reference to 2A, if ICE or other government body wrongly determined that someone did fall into one of those categories, and attempted to seize them in order to jail and then deport them. you would think it legitimate for them to use weapons to resist such seizure, correct?

[Stephen Lathrop]

And for the otherwise law abiding illegal aliens is it really patriotic to require the rest of us, many having ancestry here for upwards of 400 years now,

Yuck to that, Hayden.

[Bruce Hayden]

Dave’s the one who brought up patriotism.

[Bruce Hayden]

And David is the one impugning patriotism of his opponents.
My point is that there is nothing the least bit patriotic in welcoming in ten million immigrants, often with no vetting, and bypassing the normal immigration route. The ancestors of most here worked long and hard at building this country, and spent their blood defending it. And, at the stroke of an Autopen, those 10 million or so were welcomed in, to feast on the labors of us and our ancestors. Free rent, food stamps, healthcare, education, police, fire, all out of the pockets of those who built the country. If they had gone through the Constitutionally required legislative route, then I couldn’t complain. But they didn’t. Instead, this invasion by ten million or so aliens was created, as I said before,by the stroke of Biden’s Autopen.

[Bruce Hayden]

If you think that your lefties would ever successfully impose a 2nd Amdt solution to overreach by Trump, you are crazier than I thought. Keep in mind who has the guns in this country (and why lefties like you are so avid for gun control, DESPITE the 2nd Amdt.

Nothing in the Constitution says that the President has to defer to what 900 or so unelected District judges think the law is. It’s all cynically judge made law, based on Marshall’s judicial power grab some 230 years ago.

[SRG2]

You support dictators, it appears. Ignoring the courts is ignoring the law.

[ChristopherJLinas]

To me this is a question of what the words "cases" and "controversies" in Article III actually mean. Does an order that binds the government's actions towards parties not before the court go beyond the scope of deciding a case or controversy? I don't know enough to answer that question, but I do know enough to think that it is the only relevant question. Concerns about the practical consequences of one system versus another are totally beside the point.

I also think commenters that are suggesting that District Courts should not have the power to issue universal injunctions but higher courts should have that power are misguided on the role of appellate courts.

[JamesMarkels]

Seems to me that the proliferation of universal injunctions are a direct result of the proliferation of nationwide executive orders (EO). When Congress passes a law, the process is slow enough that those who are aggrieved can plan and prepare a case to challenge it. But Trump can spring an EO on the country at a moment's notice, and those EOs can have drastic effects.

A blatantly unconstitutional EO requires a streamlined process to be addressed on the merits before it harms the rights of thousands (or millions). While I think the justices on average do not like universal injunctions, the EO in this case is so egregiously wrong and with such damaging consequences that I think the Court is backed into the corner of having to say that universal injunctions can be required in certain narrow circumstances like this one, and that the Court will have the final say on a case-by-case basis. The alternatives the government has offered, which all boil down to "force everything into piecemeal litigation or class actions where we can slow or stop it," aren't going to satisfy a majority of the justices.

Crucially, I think the elephant in the room on this case is the issue of trust. In the past, there was a level of trust between the branches that one branch will not go too far, or at least stay within the arguable bounds of the Constitution, and so it was not necessary to lay out hard rules on what could and could not be done. Courts could take their time, let issues "percolate," and work things out properly. But with A.A.R.P. and the fact that the Trump administration was busily sending people by bus to the airport to be sent to Venezuela while it was telling the Court there were no immediate plans to do so, I think the Court has decided that it really cannot trust this administration at all to act within the confines of the law. Therefore, the Court is going to make sure there is a mechanism in place to protect the rule of law. Universal injunctions may not be perfect, but they are the best way to quickly get such EOs before the Court on the merits and protect the rule of law from a capacious executive.

[jb]

Seems to me that the proliferation of universal injunctions are a direct result of the proliferation of nationwide executive orders (EO). When Congress passes a law, the process is slow enough that those who are aggrieved can plan and prepare a case to challenge it. But Trump can spring an EO on the country at a moment's notice, and those EOs can have drastic effects.

Kavanaugh was basically making this point at oral argument, FWIW. Not just with regards to Trump, but with Presidents generally tending to take more aggressive positions since Congress isn't actually legislating anymore.

[Glaucomatose]

I'd be curious to see an analysis of what all those universal injunctions actually enjoined. During the Biden administration, the nationwide injunctions I recall being particularly egregious mostly seemed to apply to agency action: e.g. approval of mifepristone, or the SEC's private fund adviser rule, neither of which were really a direct outcome of presidential action. Maybe this is symmetric between the two "sides" but I wouldn't take that for granted.

[Zarniwoop]

During the Biden administration, the nationwide injunctions I recall being particularly egregious mostly seemed to apply to agency action: e.g. approval of mifepristone,

I agree that Kacsmaryk trying to nationally reverse the 20+ year old agency approval of mifepristone was particularly egregious.

But ... that was an APA ruling, and it seemed to me that both parties agreed that was a different issue. It has its own problems! Bigly! All that said, APA remedies are not what is currently on the table today.

[J.M. Cox]

From the OP: "When an individual federal district court judge issues a nationwide, or global, injunction directed at the President of the United States, it can only extend to the party who has standing to bring a Case or Controversy before the district court." Also from the OP: "Article III district courts only have power to issue injunctions as to the parties who are actually before the court."

But the Supreme Court is also a creature of Article III. So why does this depend on district court vs. any other level of the federal court system? If this is rooted in Article III standing then not even the Supreme Court can issue an injunction covering anyone but the named parties.

Yes, the Supreme Court has nationwide jurisdiction, but again, if this is rooted in Article III, that only matters to the extent the named plaintiffs are geographically scattered. The named plaintiffs can now go anywhere in the country without fear of being deported based on the EO, but everyone else still has to challenge the EO or join a class or whatever.

In short, the Supreme Court's nationwide jurisdiction doesn't help if the problem with universal injunctions is a problem of the court's remedy exceeding the scope of the court's Article III jurisdiction. In that case, no one, not even the Supreme Court, could enjoin the government from enforcing the law generally (against non-named parties).

[David Nieporent]

And an Article III ruling would also call into question vacatur under the APA.

[Chris Williams]

Two things worth considering that often seem to be left out of such discussions:

1) These injunctions are not a legal decision, they're a delay and one which could be struck down hours later by an appeals court. "The federal courts do not have the power to decide issues nor are they the sole expositors of the meaning of the Constitution." And statements of this nature suppose an alternate world where judges are themselves kings and what they say becomes law. That's not what an injunction is and acting like it is doesn't add to the conversation in any meaningful way.

2) The Constitution doesn't offer a single mechanism to penalize those in government for violating the Constitution, save one very bad one that's worth avoiding at almost any cost. With that being true, some ivory tower view of how a utopic judicial arrangement would look should really take a back seat compared to basic practicality. Delaying enactment of plausibly unconstitutional measures for a few hours or days, on the signal of an appointed, by profession reasonable actor, is far from the end of the world. If the horses really can't be held up, then the appeals court will act with sufficient emergency. Otherwise, what is really lost by holding those horses?

And if we are concerned about the quality of our judges then.... Well, to that feels like the larger issue to me, so why not focus on that one?

[ducksalad]

Layman question for the lawyers here who listened to the case.

Am I misunderstanding it, or were essentially all the justices asking for opinions on the proper way to shut down this EO, and not even contemplating the possibility that it could be upheld?

They're considering different options with respect to individual vs district vs national injunctions, class actions vs injunctions, lower courts vs SC, but it's all about how and where the government will eventually lose on any denial of birthright citizenship, at least if it is challenged.

Is that approximately correct?

[David Nieporent]

Officially, no. Unofficially, yes.

[ducksalad]

Thanks.

[TwelveInchPianist]

Presumably, there is a class of children of illegal aliens who agree with Trump that they are not citizens, such as those who would owe taxes and don’t wish to enjoy other benefits of citizenship.

Given the lack of a controversy between the Trump administration and people like that, where would courts get the power to enjoin the EO with respect to them?

[ducksalad]

Presumably you could also find some (very small) class of gun owners who really want the government to take away their guns. Or a (perhaps larger?) class of arrestees who wouldn't be totally against having sex with jail personnel.

Anyway, that's a defect of class actions in general. I actually liked the McD nuggets better when they were mechanically separated and had some feathers in the recipe. And I have no objection to coffee served anywhere up to 212F.

[wvattorney13]

Perhaps the State plaintiffs would like to tax them and confer upon them the benefits of citizenship--whether they like it or not.

I think it is a tough issue. The libs made some good points. If Trump loses every case, it would be beneficial not to appeal and create binding precedent. Then you make millions of people file suit, concede error, rinse and repeat, all without creating a binding rule.

I can't say that this is better or worse than what we have now where the government must win every case because a single loss means a nationwide injunction.

I believe that there is something unseemly about a government denying me a benefit and then I sue them in court. Then I find out that others have done this and the government is 0 for 7,285 in these cases and instead of giving me my benefit, they decided to make me file suit only to immediately confess error. That is bad faith manipulation of the court system and caused me to waste my time and resources.

[David Nieporent]

Since they owe taxes whether they're citizens or not, that would be an odd stance for them to take.

[wvattorney13]

On the merits, Wong Kim Ark dealt with parents who were legally present in the United States and gave birth to a child. This issue is whether parents who have no legal claim to being present in the United States can bestow upon their child the full benefits of United States citizenship.

I personally think that distinction is one of considerable merit and the bland assertion that Wong Kim Ark has conclusively decided the present case is legally incorrect. Maybe it will carry the day, but the government certainly deserves its day in court instead of Sotomayor, without the benefit of briefing, just declaring that the government is wrong.

[Josh R]

That's fine. But, the reasoning in Wong so strongly suggests otherwise, that we now have over 125 years of treating Wong as if it did resolve this case (for both people unlawfully present and temporary visitors). As such, that should justify a nationwide injunction until such time that SCOTUS reverses the 125+-year de facto understanding of Wong.

[not guilty]

"On the merits, Wong Kim Ark dealt with parents who were legally present in the United States and gave birth to a child. This issue is whether parents who have no legal claim to being present in the United States can bestow upon their child the full benefits of United States citizenship."

Wong Kim Ark 169 U.S. 649 (1898), included a comprehensive discussion of the exceptions to birthright citizenship conferred by the Fourteenth Amendment, § 1. Those exceptions included only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of the country's territory, or Indian tribes "not taxed", each of which weas not considered subject to U.S. jurisdiction. No decision has since recognized other exceptions to Fourteenth Amendment birthright citizenship.

Numerous SCOTUS decisions have since acknowledged the American citizenship of infants born to alien parents who were unlawfully present in the United States at the time of the child's birth. For example:

United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 73 (1957) (recognizing that a child born to Greek national parents who overstayed temporary lawful stays was “of course, an American citizen by birth.”); see also id. at 79 (Douglas, J., joined by Black, J., dissenting) (“The citizen is a five-year-old boy who was born here and who, therefore, is entitled to all the rights, privileges, and immunities which the Fourteenth Amendment bestows on every citizen.”);

INS v. Errico, 385 U.S. 214, 215 (1966) (explaining that children born in United States to parents who procured entry to country by fraudulent means “acquired United States citizenship at birth”);

INS v. Rios-Pineda, 471 U.S. 444, 446 (1985) (noting that the undocumented respondent -- who had entered the country without permission -- “had given birth to a child, who, born in the United States, was a citizen of this country”).

The Supreme Court has expressly rejected the contention that undocumented aliens, because of their immigration status, are not "persons within the jurisdiction" of the State of Texas:

We reject this argument. Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, 345 U. S. 206, 345 U. S. 212 (1953); Wong Wing v. United States, 163 U. S. 228, 163 U. S. 238 (1896); Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government.

Plyler v. Doe, 457 U.S. 202, 210 (1982). It would be monstrous for the federal government to exclude children born in the United States to unlawful alien parents -- which parents are themselves entitled to due process and equal protection of law -- from the rights and obligations of American citizenship.

[Bored Lawyer]

As I pointed out before, the solution is to create three-member courts, made up of at least one, and possible two, Circuit judges (appointed ad hoc), to hear cases of national scope challenging the legality or Constitutionality of an executive action. With an appeal of right to SCOTUS.

There already is a statute that provides for it, but only in a limited number of cases. 28 U.S. Code § 2284. https://www.law.cornell.edu/uscode/text/28/2284
It might need some tinkering, but its a template.

Of course, my suggestion requires a functional Congress, which we don't have.

[wvattorney13]

Kavanaugh pointed out the lack of a functioning Congress in a way I have said in other threads. The problem is the filibuster rule. Except in extreme circumstances and in non-controversial matters, the 60 vote hurdle in the Senate prevents any policy from taking effect that has the slightest amount of political opposition.

What used to be a rare device reserved for unusual circumstances on an issue where the minority felt passionate, is now standard in all votes. Perhaps it could be preserved in some fashion such as delaying a vote for a period of time, but at some point a majority has to be able to govern. If not, we will keep getting this rule by executive order countered by district court judges. We will keep trying to stretch ancient laws to apply to modern circumstances--if only because we must to continue to have a functioning government.

The filibuster rule, as currently practiced, has got to go.

[David Nieporent]

I don't see what that's supposed to be a solution to. This issue has nothing to do with whether one judge decides it or a three judge panel does.

[Bored Lawyer]

Once again, you are focused on narrow legal issues. The advantages are:

(1) A three-judge panel has more authority. If three judges say something is illegal or unconstitutional, it's harder to attack. Especially if they are taken from different Circuits, as I think you would need to do. If judges from Texas, New York and California are all on the panel, it's harder to say that one DC judge is stopping the president.
(2) Three-judge panels tend to be more deliberative and do less outlier things. And more focused on larger policy issues.
(3) An appeal as of right to SCOTUS speeds up the process, and give the decision even more legitimacy.

Of course, an adverse decision can still be attacked, either crudely or thoughtfully. But the process has more gravitas and works faster to resolve major issues of policy. One of the complaints about the recent judicial process is that it stretches things out and obstructs the policy of an elected president. To some extent, that's the nature of the beast, but to some extent it's a legitimate complaint. (TROs by definition are supposed to be temporary. If a TRO is still in place 30 days later, then something is seriously wrong.)

It's not a cure-all. But it would grant more legitimacy to judicial actions that act against the other branches of Government.

[David Nieporent]

I'm focused on narrow legal issues because that's what's before the court. Your political arguments thus don't resolve anything. If judges lack the Article III authority to order universal injunctions, you can't evade that by putting an extra couple of judges on the bench.

And you overestimate the good faith of MAGA. There will be more no legitimacy afforded to three judge panels that thwart the will of the orange god than to single judges. (We never heard griping from them about single judges issuing injunctions against Biden. (To be clear, I'm not saying "They're wrong on the merits because they're hypocrites." I'm just saying, "You won't be able to stop them from complaining, because they're hypocrites."))

In any case, I'd need to hear a more detailed proposal (which I am not expecting to be provided in a blog comment discussion) before I could really evaluate it on the merits on an operational level.