SCOTUS to CASA to A.A.R.P.: In Case Of (Perceived) Emergency, Ignore The Rules, And Make Stuff Up

None of the usual rules will apply when the ACLU says there is an emergency.

The past 24 hours have been something of a Rorschach Test for the Supreme Court. In the birthright citizenship case, the Court made clear that in emergencies, the judiciary must retain the power to enter universal injunctions, even if Article III does not otherwise permit such injunctions. And in A.A.R.P. v. Trump, the Court made clear that in emergencies, the court should certify a class without going through Rule 23, and grant an ex parte tro without considering any of the usual TRO factors.

What lesson should lower court judges take away? In cases of perceived emergencies, forget all the rules and make stuff up. When the executive branch takes such actions we call it an autocracy. When the courts do it, they call it the "rule of law."

I will have much more to say about this order in due course.

Comments

[Stephen Lathrop]

. . . even if Article III does not otherwise permit such injunctions.

Where does that come from? Maybe the cases and controversies clause? If so, I don't think Blackman has thought through what, "Judicial Power," means.

[SRG2]

He is flat out wrong.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,

A due process claim is clearly a case "arising under this Constitution", an injunction is an equitable remedy, so they have the power.

[MaddogEngineer]

Um, no, not if they do not also have jurisdiction.

I mean, I think they do have jurisdiction. But it's only a case "arising under this Constitution" if they do. This purported class stuff, outside of any procedures rules, is difficult stuff. It's probably true that, uniquely so, the Supreme Court has authority here to do that, that lower courts do not.

I assume eventually, just like national injunctions, they will get around to cleaning up this class mess expediency the so-called "emergency" has made. Doesn't give any Article III court a blank check at novelty: class declarations for (individual) habeas cases.

[Bubba Jones]

For years, racism has hidden behind conservatism and freedom of association and personal liberty.

Racism was just an unfortunate bad outcome that might sometimes occur.

The mask is off. When racism and personal liberty conflict, the answer has revealed itself.

[Josh R]

There was no discussion of issuing nationwide injunctions because of emergencies during oral arguments in CASA.

[Mark N.]

"I will have much more to say about this order in due course."

That goes without saying. Whether any of the ranting will be legally sound is another story.

[Katall]

When the executive branch makes stuff up, you expect the judicial branch just to sit there? For example, the executive branch is making up a claim that birthright citizenship is not mandated under the constitution, even in the face of a Supreme Court decision. Sure, they argue the decision is not precidential. But if the Supreme Court thinks his precidential, they have to do something.

It seems that Josh's basic concept is that the president can act quickly to affect the entire population of the United States, while the Judiciary in Congress just have to react.

The purpose of the Judiciary, in part, is to protect against the excess of the executive and Congressional branches. That is what is doing here.

Josh really doesn't wrestle with the implications of forcing every individual to bring suit rather than having a national injunction. If Josh is right, then courts will never be able to find a law unconstitutional and prevent the government from enforcing it. That is because of finding of unconstitutionality is tantamount to an injunction.

[MaddogEngineer]

It isn't just the executive that's been making stuff up.

Mitigating the "implications of forcing every individual to bring a suit rather than having a national injunction" is every bit as much the judiciary making stuff up, at least at the lower court level for habeas petitions. (There were valid legal reasons why Judge Boasberg tried to steer the first plaintiffs away from making their case a habeas petition in his district court case.)

Courts will still be able to find other laws unconstitutional, because these cases, being habeas petitions of possibly deportable aliens, are unlike pretty much every other legal rights case brought in federal courts.

(I continue to find Blackman's reasoning and logic problematic and partisan hackery.)

[Yogis_dad]

People who assert that the SC has ruled that any baby dropped in the USA is a citizen, regardless of the legal status of the parents, do not know that the rulings they rely on actually said.

[ObviouslyNotSpam]

Indeed. They should probably at least note the words, "and subject to the jurisdiction thereof".

(By the way, who are these people who assert that any baby dropped in the USA is a citizen, regardless of the status of the parents?)

[J_A_H]

And so it begins. . .

[Dr. Ed 2]

Those two decisions will be the Roberts' Court's Dred Scott decision, which was also 7-2.

It might provoke a shooting third civil war -- I hope not -- but the court system has now become political in a way that it hasn't been in a long time, and the ACLU has painted a large target on just its back and that of other left wing activist legal groups.

I never thought we'd see university endowments taxed or Federal funds cut off. There are a variety of ways that the wings of the ACLU can be clipped, including fee reforms and rewriting Chapter 501(c)(3). I can also see states opening up their bars to conservatives.

[MollyGodiva]

So the MAGAs are going to be so pissed they can't deport people without due process that they will get violent? I believe you.

Robert's "Dred Scott" rulings are the two last year that rewrote 14A, and the one that gave Trump criminal immunity. If they kill nationwide injunctions that will also be one.

[y81]

O dear, I forgot to log in, so there were no blocks in place, and I was forced to read Dr. Ed. Now I have to take a shower. Though I must say, he and Josh Blackman are peas in a pod, with their threats of civil war if they don't get their way. Let us hope that they don't get their wish.

[RedheadedPharoh]

You have to go take a shower because you read something? What are you, a 12 year old girl?

[QuantumBoxCat]

Under Josh's reasoning, the justices who joined the per curiam opinion in A.A.R.P v Trump displayed judicial courage, since they did not bend to the demands of the President and conservatives like Josh.

How does he praise judicial courage but then get salty at the justices who demonstrate it?

[y81]

No no no, courage, integrity and intellectual quality all mean agreeing with Josh. nothing more and nothing less. Which must make Ilya Somin the equivalent of Hitler in Josh's eyes, but there it is.

[not guilty]

Let's see now. In Bizarro Blackman World, the Trump administration being ordered to follow Fourteenth Amendment law which has been settled for 127 is an emergency, but nothing else is?

[not guilty]

That should be "for 127 years".

[ObviouslyNotSpam]

86 127...

[Foxwhelp]

He will say more. But will he really have more to say....

[ObviouslyNotSpam]

"Thanks for the warning"?

[cannpro]

The Trump administration illegally sent hundreds to an El Salvadorian slave labor prison in violation of the 4th amendment. This is an emergency if there ever was one. Blackman is just extra upset because even most of the conservatives on the court have the courage to do the right thing - a courage that just yesterday he said he wanted to see more of on the Court, but obviously he was lying.

Blackman is not a serious person.

[JoeFromtheBronx]

Hey, is that any way to talk about Trump's religious liberty person?

[MaddogEngineer]

Okay, I'll play along at home...

How exactly is the ** 4th ** amendment violated here?

[Magister]

Probably meant the due process part of the 5th amendment, but the 4th amendment might have been violated by seizing people without a proper warrant.

[ObviouslyNotSpam]

I'm not aware that CECOT is a "slave labor prison" in any meaningfully accurate sense. Facts matter.

[MollyGodiva]

Trump is issuing an enacting and implementing polices so quickly that by the time a plaintiff goes through eh normal channels the damage is long done. Allowing a president to issue any orders he wants without judicial review is dictatorship.

We have never had a lawless president before such as Trump. The courts need to adapt new procedures to deal with him.

Had SCOTUS not intervened that night, the detainees would have been illegally deported. Blackman wants zero judicial review of Trump's actions.

[hobie]

Unfortunately, the judicial can only react. When the executive keeps violating the Constitution, it is up to the brave congressmen to impeach and remove him

[MollyGodiva]

Where can I find such an elusive and mythical creature as a "brave congressmen"?

[ObviouslyNotSpam]

Montana?

[Please, Daivd, Seek Help]

There are very rarely emergencies that require split second decisions. But there are emergencies that require split second decisions. Every other area of the law grants a measure of flexibility and a measure of preserving the status quo when emergencies, real or perceived exist.

The government can't assert that this is an emergency that requires they be permitted to act in extraordinary ways, without following procedure, but then turn around and get surprised when defendants agree that it is an emergency and that procedure might need to bend to that. Like this is obvious right?

Is it or is it not an emergency that we need to deal with TdA members who are threatening the security of the US?

[Zarniwoop]

The government can't assert that this is an emergency that requires they be permitted to act in extraordinary ways, without following procedure, but then turn around and get surprised when defendants agree that it is an emergency and that procedure might need to bend to that. Like this is obvious right?

Agreed. Josh getting the vapors about this is high-larious.

Is it or is it not an emergency that we need to deal with TdA members who are threatening the security of the US?

Even if "deal with TdA" is an emergency ... when the [alleged] TdA member is already in prison, what's the emergency that necessitates notice that is manifestly deficient?

Stephen Miller's performative cruelty masturbatory deportation fantasies don't qualify.

[Gregory]

Josh you don’t need to post like this anymore. You’re one of twenty people on a Trump admin committee that’s going to be ignored. That’s as far as you can expect to take your whole thing, time to focus on either raising a family or getting into wood carving.

[dwb68]

deporting people is not the same as incarcerating people in a foreign prison. As the case of Abrego Garcia shows, once they are gone, they ain't never coming back.

ACLU wom this by screaming very loudly on a phone mail; its a trick that only will work once.

[Roger S]

Scotus wants to maintain its own power. That seems to be the top concern.

[not guilty]

"Scotus wants to maintain its own power. That seems to be the top concern."

It is accordingly unwise for Trump to go out of his way to alienate most of the Court.

[dwb68]

Why, what are they going to do?

The only thing that restrains Trump is public opinion and the markets.

If Trump decides to ignore them ala Andrew Jackson, nothing Roberts can do about it except cry into the D.C. swamp.

[Stephen Lathrop]

dwb68 — Assume a Court majority under Roberts which did want to rein Trump in. I think that looks unlikely, but assume for the sake of argument that happens. What judicial powers could the Court bring to bear?

Some federal jobs get filled with appointed administrative officers on the basis of oaths sworn to support the Constitution. Cabinet offices, for instance. I get that the modern fashion is to scoff at any notion that to take an oath creates any meaningful obligation with regard to conduct in office.

That has not always been so. There is legislative history to the contrary, especially from the Civil War era. One law purported to bar from office anyone who would not swear a required oath. It would be a very short judicial step to conclude that a person in office, properly judged and convicted of breaking an oath, could also be barred from continuing in office, and possibly from holding future office.

A SCOTUS which announced a legal principle that at least in cases of appointed office, there is an inherent grand jury power to indict for oath breaking, and upon conviction a judicial power to equitably deprive appointed oath breakers of power to continue in office, would wield considerable power to constrain a run-wild administration.

It would be a power to strip a Constitutional scofflaw president of subordinates to complete the work of Constitutional destruction. It would reverse the scenario you describe, and properly leave a Constitutionally unfaithful oath-breaking president to bemoan his own futility.

Of course, that would be far from an ideal solution. It is easy to imagine tit-for-tat retaliatory initiatives, undertaken to abuse such a power without limit, and thus to discredit it.

A better, but presently politically unimaginable, alternative would be a Constitutional amendment that would both authorize that power explicitly, and define limits on situations in which it could be invoked. It might be wise, for instance, to stipulate that no grand jury would be so empowered, unless it were specially constituted by the Supreme Court for that purpose. If something like that were decreed by amendment, there ought not be any theoretical objection that grand jury independence had been compromised.

Given an existential Constitutional crisis, and a situation where a responsive amendment is impossible, is it thus permissible for the judicial branch to stretch by not-much an existing historical precedent, to prevent the collapse of American constitutionalism? Anyone paying attention now would rightly suppose that answers to that question would follow partisan lines.

The Court, of course, consists of members sworn to ignore partisan political pressures, and instead honor its own oaths to defend the Constitution. No better time to remember that than when continuation of Constitutional rule becomes actually doubtful.

Thus, the right time to consider such an amendment might come after a Supreme Court had proved that actions the amendment would both authorize and constrain had proved sufficient to resolve Constitutional crisis. Who could expect any such liberty after a feckless SCOTUS permitted constitutional collapse to happen before acting?

So my question for you dwb68, is what you intended when you wrote:

If Trump decides to ignore them ala Andrew Jackson, nothing Roberts can do about it except cry into the D.C. swamp.

Should readers take that as an approving remark, or an objection? If it is the latter, and you do not credit my own proposal, what action do you propose?

[cannpro]

Reminder, Roger S is a white supremicist who thinks “negroes” aren’t entitled to birthright citizenship. Under his interpretation of the AEA he could deport anyone not white.

[decline to state]

The idea that each branch of government will very jealously guard their powers is kind of the bedrock of the constitutional order.

To the degree that we're in trouble now it can mostly be traced back to that not happening.

[cannpro]

Particularly with Congressional inaction.

[John F. Carr]

Trump may have won a battle by refusing to return Garcia and lost the war. The court cited the administration's failure to return him. Removal from the United States may be irreversible.

[Zarniwoop]

Yep. If Trump is limp and powerless to get a favor from a third-world dictator that he's paying, the S.Ct. is entitled to believe that he's weak and impotent.

[bernard11]

Yes, and I remember being told he is a brilliant strategist. Guess he blew this one.

[Longtobefree]

"What lesson should lower court judges take away?"

That in addition to the three branches of government, there is "the people".

[Zarniwoop]

Gonna highly recommend Prof Vladek's take on this:
https://www.stevevladeck.com/p/151-the-supreme-courts-alien-enemies

[JoeFromtheBronx]

Steve Vladeck and Chris Geidner are two good reads on these issues.

[Zarniwoop]

Wasn't familiar with LawDork before, thanks for the pointer. But feel free to provide a link, mi amigo!

This take is a good one:

Despite his apparent disagreement with the court, Alito seemed to ignore a key aspect of the per curiam opinion and Hendrix’s underlying ruling. As the Supreme Court noted, “By its own terms, the District Court’s order is ‘automatically vacated’ by our order granting a writ of certiorari.“*1

*1 Literally. Hendrix’s class certification decision stated, “In the event that the Supreme Court grants the pending petition for a writ of certiorari, this Order is automatically vacated.” The Supreme Court did so. The order is “automatically vacated.”

Alito whines harder. News at 11.

[Absaroka]

"In cases of perceived emergencies"

That's your problem right there. I cases of *actual* emergencies the population and courts are going to be pretty compliant. When Bush ordered planes grounded for a couple days after 9/11, or blackouts were ordered in WWII, people went along. You're not going to get the same compliance for non-emergency 'emergencies'.

The population at large may not be geniuses, but they aren't as dumb as some - many - politicians seem to think.

[Stephen Lathrop]

Absaroka — Among the population at large, notable disagreements about an emergency during Covid, though. While Covid killed 1 million plus. I thought that was dumb. How about you?

The worst of it seems to be that the dumb side won the political controversy long-term. With a result that federal government public health powers are intentionally being crippled.

The weakness of Covid as precedent to justify that is that Covid was peculiar demographically—catastrophic for a minority demographic, and barely threatening among a large majority. Someday a pandemic comparably deadly will arrive, but lacking Covid's demographic exemptions. Very dumb not to notice that.

[Brett Bellmore]

"While Covid killed 1 million plus. I thought that was dumb."

Covid killed 1.1m over the course of 3 years. How many people died of non-Covid causes in that timeframe? About 8 million.

For a short while Covid managed to be the THIRD most common cause of death in the US, under reporting rules that encouraged everybody who died with a positive Covid test being recorded as a Covid victim.

If that's an emergency, then we spend 100% of our time in a state of emergency.

[Sarcastr0]

What the heck?

An emergent new cause of death that rakes in over a million in 3 years can be an emergency even if there are other, longstanding causes of death that are not.

A nonzero baseline existing isn't relevant, unless you want to argue the death number was a mere perturbation from the mean.

[bernard11]

So a pandemic that increases annual mortality by about 14% is not an emergency?

[grb]

Brett Bellmore : "If that's an emergency, then we spend 100% of our time in a state of emergency."

Two Points :

1. If there was an increase in death one-thousandth that size caused (somehow) by brown-skinned immigrants you can bet Brett would shriek "emergency" at the top of his lungs.

2. It would be fascinating to see a piece of reasoning by Brett that wasn't preceded by a set conclusion even before facts were ignored or selected (and then massaged).

[JDMD]

So JB’s takeaway is that in some circumstance, SCOTUS tends to “ignore the rules and make stuff up.” Sounds exactly like JB’s scholarship and commentary

[RadLegalTakes]

You’re a whiny little cunt, and a shitty legal scholar to boot. Just thought you should know.

[Sarcastr0]

Rad.

[Krayt]

The court imagines an emergency, and so does unusual and possibly extra-constitutional things.

Repeat that in the mirror ten times.

[arpiniant1]

Well, when the traitor in chief throws out the rules and makes stuff up, I suppose that is the correct response.
the executive is not acting in good faith
is their any question traitortrump would move deportees, US citizens, Bruce Springsteen, to concnetration camps in the one district that allows it?
None
trump doesn't believe in laws
he must be dealt with as such

[Stuart]

"when the ACLU says there is an emergency" Anyone else every call something an emergency to get what they wanted?

[thesafesurfer]

The greatest threat to democracy in the United States in 2025 is the non-elected, tyrannical judicial branch of government. This is a pathetic state of affairs that results from over half a century of malfeasance in law schools across the United States.

[Botaglove]

You're not very bright, are you?

[ReaderY]

Surely you can come with a better argument for fascism - letting a strongman spirit whomever he wants to to concentration camps outside the country just on the strongman’s say-so that these are bad people - than that.

[ObviouslyNotSpam]

Don't leave us hanging! Is that a call for elected Supreme Court justices? Term limits? Court packing?

[Hugh]

How can a professor of LAW advocate for a position that essentially allows a president and executive branch to be lawless?

We are really into Ernst Janning territory for Professor Blackman now.

[MaddogEngineer]

Well, probably because some people, including Blackman, disagree that this is lawlessness by the executive branch.

I'm not agreeing with all of that. I'm just objecting to the framing. Because the Supreme Court has not (yet) ruled it as lawless. These claims are advocate posturing. Disagreeing with their legal arguments does not make it lawless.

What is, or would be lawless, is saying the president could unilaterally suspend the writ of habeas corpus, like he or some of his minions have mused. There is absolutely no defense for that, unlike their AEA argument. Which may be wrong, but has a slim basis in law.

[Stephen Lathrop]

MaddogEngineer — Distill, "slim basis in law," to its essence, and you end up with extremely high likelihood that habeas corpus is already suspended.

The Supreme Court apparently gets that. You seem smart enough to get that. Why ignore it? Is this a case of taking refuge in, "Not suspended yet for me?"

[ReaderY]

Mr. Blackman:

You have pretty much described what equity is.

Law is about rules. Equity is about making stuff up.

Federal courts arw not limited to cases at law. They also get cases in equity.

It has always been my position that while courts shouldn’t make new rights up willy-nilly, when clear, core, unambiguous constitutional rights are concerned, courts have power to enforce them. And they get to use equity to do so. That means they have the power to make stuff up. If clever lawyers devise a clever trap, they can use equity to spring people out of it. It’s absolutely within their power.

Arresting people and spiriting them out of the country in the middle of the night to indefinite detention without hearings is as core as it gets. Courts get to make up whatever they need to make up to prevent it. They are absolutely entitled to do it.

Deal with it. Enough of the “Coises, foiled again” imitations of Dick Dastardly whining.