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.

[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.

[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".

[Foxwhelp]

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

[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?

[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"?

[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.

[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.

[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.

[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.