Nationwide Injunctions and the Rule of Law

Justice Kagan hits the nail on the head: "nationwide injunctions" are an indispensable tool by which courts rein in unlawful executive action

At oral argument Thursday in Trump v. Casa, Inc., the "nationwide injunction" case, Justice Kagan put her finger on the question that is, in my view, decisive: If district courts do not have the ability to issue "nationwide injunctions"* against executive misbehavior, i.e., if they are limited to injunctions applicable only to the specific party/ies challenging the government's actions in the cases before them, the courts cannot serve as an effective check on unlawful executive action.

*These injunctions might better be labelled "non-party injunctions" rather than "nationwide injunctions." Listening to the oral argument, it appears that what gives some Justices heartburn with respect to these injunctions is not that they operate "nationwide" (i.e., outside of the geographic district within with the court is authorized to act) but that they purport to affect the rights of non-parties.

Justice Kagan asked the Solicitor General to assume, just for argument's sake, that the Birthright Executive Order is unlawful, on the merits** - that it is an unconstitutional exercise of executive power contravening both the 14th Amendment and a number of Supreme Court precedents (as most of the courts that have looked at it have already concluded).

**This question about the merits - whether the Birthright E.O. is or is not a constitutional exercise of the President's power - was not before the Court at this point, because the government, which was the losing party in the court below, sought SCOTUS review only on the question of whether the court's injunction was valid, not on the underlying merits of the plaintiffs' claim. That turns out to be a rather interesting omission - see below.

If you are uncomfortable making this assumption, because you are convinced that that the Birthright E.O. is not an unconstitutional exercise of presidential power, feel free to craft your own hypothetical here; think of something that a President could do that would be, in your view, clearly and incontrovertibly unlawful: An order requiring, say, the State Department to fire all Jews and African-Americans in its workforce; an order placing the words "Christ is our Savior" on one-dollar bills; an order declaring that ICE can execute warrantless searches whenever it deems them to be in the public interest. Just suppose.***

***Justice Sotomayor used this hypothetical: "A new president orders that because there's so much gun violence going on in the country and he says, 'I have the right to take away the guns from everyone,' and he sends out the military to seize everyone's guns."

Now imagine that Able and Baker and Charlie have been injured by this unconstitutional policy; e.g., each of their citizenships has been revoked, even though they were all born in the United States. They bring suit in federal district court in, say, Houston, arguing that the E.O. is unconstitutional. They win. The court orders the government to reinstate their citizenships.

Nothing remotely controversial or out-of-the-ordinary in the above, and nobody is suggesting otherwise. The Solicitor General acknowledged that it is appropriate for the district court to enjoin the government from imposing its new citizenship policy on Able, Baker, and Charlie, and he conceded that the government would comply with the court's order directing it to reinstate the plaintiffs' citizenships in that case.

But under the Administration's view of things, that is as far as the district court can go:

[From the Administration's Application for a Stay submitted to SCOTUS in this case, available here]

Article III authorizes federal courts to exercise only "judicial Power," which extends only to "Cases" and "Controversies." Under that power, courts can adjudicate "claims of infringement of individual rights," whether "by [the] unlawful action of private persons or by the exertion of unauthorized administrative power." Courts that sustain such claims may grant the challenger appropriate relief—for instance, an injunction preventing the enforcement of a challenged law or policy against that individual—but cannot grant relief to strangers to the litigation. Article III does not empower federal courts to "exercise general legal oversight of the Legislative and Executive Branches." To reach beyond the litigants and to enjoin the Executive Branch's actions toward third parties "would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly [courts] do not possess."

Only the Supreme Court, the Administration asserts, can declare the policy unconstitutional as to persons who are not party to any lawsuit, and only the Supreme Court can enjoin the government from revoking the citizenship of persons similarly-situated to Able, Baker, and Charlie but located in other judicial districts.

It's not a totally unreasonable position: only the Supreme Court has truly nationwide jurisdiction, and it alone should be permitted to decide "the law of the land," not some district court in Texas or Massachusetts or Colorado.

But Justice Kagan identified the fatal flaw in the argument:

If [the government] wins this challenge and we say that there is no nationwide injunction and it all has to be through individual cases, then I can't see how an individual who is not being treated equivalently to the individual who brought the case would have any ability to bring the substantive question to us…. In a case like this, the government has no incentive to bring this case to the Supreme Court because it's not really losing anything. It's losing a lot of individual cases, which still allow it to enforce its EO against the vast majority of people to whom it applies. . . . I'm suggesting that in a case in which the government is losing constantly, there's nobody else who's going to appeal; they're all winning! It's up to you, [the government], to decide whether to take this case to us. If I were in your shoes, there is no way I'd approach the Supreme Court with this case.

Which is exactly what happened here! As I noted above, the government didn't ask the Court to review the adverse determination that the E.O. was "blatantly unconstitutional." Why not, you ask? Because it knows full well that it is almost certain to lose when that question comes to the Court, at which point the government would have to openly defy "the law of the land" if it wanted the State Department and DHS and ICE and the other executive agencies to operate under its new definition of citizenship. Instead, if it could just get rid of these pesky "non-party injunctions," it would be perfectly content to just go on losing, one case and one plaintiff at a time, forgoing its right to appeal all the adverse decisions, while work to implement the E.O. with respect to the millions of people who are not parties to the various lawsuits goes on apace.

And paradoxically enough, the more egregious the executive's conduct - the more obviously and incontrovertibly unconstitutional it is - the more likely it is that it will lose every case, which will mean that the question of its constitutionality never gets to the Supreme Court for a conclusive ruling.

Clever, no? Another seam, or fault-line, in the web of constitutional protections and the separation of powers has been exposed.

I regard this as a fatal objection to a rule prohibiting non-party injunctions in all cases because it fails what we might call the Hitler Test: if we are ever so unfortunate as to have a president who wanted to do Hitler-ian things, would this rule help to prevent that from happening or not? It's not a terribly high bar, but a rule prohibiting non-party injunctions in all cases doesn't make it over. I think that a majority of the Court will at least be a little troubled by a rule that incorporates this perverse legal incentive to act in an outrageously unconstitutional manner. Though I'm loathe to predict the direction the Court might go on this issue, it doesn't appear to me that there is majority support for a blanket prohibition on non-party injunctions, and I think it more likely that the Court will find some intermediate position that will spell out the conditions under which non-party injunctions are permissible and within the discretion of the district courts. We'll see if I'm right about that.