Further Thoughts on Non-Party Injunctions and the Constitution

Will judicial ambition counteract executive ambition?

As I listened to the oral argument and read through the Administration's filings in Trump v. Casa (the "nationwide" or "non-party" or "universal" injunction case), I was puzzled by the Solicitor General's repeated reference to the Supreme Court's power to issue "binding nationwide precedent," rather than its power to issue "binding nationwide injunctions" - the latter being what I thought the case was about.

A few examples:

JUSTICE SOTOMAYOR: So can I ask you a question? Your theory here is that Article III and principles of equity both prohibit federal courts from issuing universal injunctions. Do I have your argument correct?

GENERAL SAUER: We argue both of those and there are independent reasons.

JUSTICE SOTOMAYOR: You argue both of those?

GENERAL SAUER: Yeah.

JUSTICE SOTOMAYOR: If that's true, that means even the Supreme Court doesn't have that power.

GENERAL SAUER: The Supreme Court would have the authority to issue binding precedent nationwide, but as this Court --

JUSTICE SOTOMAYOR: But we couldn't enforce it universally - is that your argument?

GENERAL SAUER: If there was a decision that violated the precedent of the Court, then the affected plaintiffs could get a separate judgment.

And again:

JUSTICE KAGAN:  I think that the question that this case presents is that if one thinks that it's quite clear that the EO is illegal, how does one get to that result, and in what time frame, on your set of rules without the possibility of a nationwide injunction?

GENERAL SAUER: On this case and on many similar cases, the appropriate way to do it is for there to be multiple lower courts considering it, the appropriate percolation that goes through the lower courts, and then, ultimately, this Court decides the merits in a nationwide binding precedent.

And again:

JUSTICE KAGAN: Suppose that there's a single person who brings a suit and it gets all the way up to us after three or four or five years, and we say, you know, we really do agree with those four precedents that Justice Sotomayor started with and your Executive Order is illegal. Is that only going to bind the one guy who brought the suit?

GENERAL SAUER: No. That would be a nationwide precedent that the government would respect.

JUSTICE KAGAN: So, finally, once it gets to us after four years, you're going to respect that?

GENERAL SAUER: Yes. And in addition, we may well respect circuit-wide precedent.

But now I see what's going on [h/t to reader/commenter J.M. Cox, one of whose comments on my earlier posting illuminated this point].

The Administration's position is that Article III's case and controversy requirement disables the district court from issuing an order requiring the Executive to act lawfully towards non-parties - individuals who are not themselves before the court. Thus, a finding that the Birthright Executive Order is unlawful as to Able does not - cannot, in the Administration's view - cover Baker (if Baker is not party to Able's suit), because there is no "case or controversy" between the government and Baker for the court to decide.

But if the district court can't do it, the Courts of Appeals can't do it, and neither can the Supreme Court, because they are all subject to the same "case or controversy" requirement of Article III. No federal court, including the Supreme Court, can order an Executive officer to act (or refrain from acting) in a particular manner with respect to anyone not a party to an action before the court.

Hmm.  I certainly can understand why the S.G. might have felt a little uncomfortable, having to stand up before the Supreme Court to make that argument!

So the Administration's position is that a Supreme Court decision concerning the constitutionality of the Birthright E.O., if and when it is handed down, will be binding nationwide as precedent - that is, the decision is binding on courts who, under the rules of stare decisis, must decide the question as directed by the Supreme Court should it arise in future cases.

But it's not an "order" that the President is obligated to obey.  It's not a "nationwide injunction," it's a "nationwide precedent," and only courts are bound by "precedent."

So in this view of things, even if the Supreme Court ultimately decides that the government's treatment of Able was unlawful, the government can treat similarly-situated Baker the same way it treated Able, without violating any order or injunction. Baker may bring suit, and he/she will win, because the court in Baker's case will be bound by the Government v. Able precedent to decide the case in Baker's favor. But the Baker case, too, is not and cannot constitute an "order" requiring the Executive branch to treat similarly-situated Charlie, or Drake, or Evans, et al., in accordance with the courts' view of the illegality of the actions taken.

That's a pretty fundamental attack on one of the basic premises underlying the Constitutional balance of powers - the idea that it is "emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. 137 (1803).

* * * * * * * * *

In Federalist #51, Publius asks:

To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution?

The answer - "the only answer" - is "by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. . . . [E]ach department should have a will of its own . . ."

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.

It's my favorite sentence in the Federalist Papers.

I'm reasonably confident that the Justices understand full well that this case is about judicial power - i.e., their power, and the power ultimately of the entire edifice of the federal judiciary at the apex of which they sit. And I also think they understand that the Administration's position here tilts the scales away from the Article III team in favor of the Article IIs pretty decisively.

I'm hopeful that if the fate of the Republic [see my earlier posting] isn't enough to shake five votes from the tree to push back against Executive overreach here, that ambition and self-interest will help carry the day.

Comments

[Supremacy Claus]

The lawyer and judge are continuing the lawfare against our country. Trump was elected to stop illegal immigration and to expel those in the country. In lawfare, a hidden purpose is the real goal. That goal is to increase the number of Democrat constituents. The illegals increase the number of Representatives, based n the census. They are then granted voting rights to make the US a permanent one party state. All other arguments are perjury. They should be punished as perjury is. The judges enabling this crime should be removed, investigated, and punished for their corruption.

[David Nieporent]

They are then granted voting rights

There is no mechanism available to do that.

[Supremacy Claus]

Since 2015, under California law (AB 60), undocumented immigrants can obtain a special type of driver's license that allows them to drive legally. These licenses say “Federal Limits Apply” and are not valid for federal identification purposes, such as boarding a plane or entering federal buildings. There are many equivalent rules in other states.

They may not register to vote automatically, without verification of eligibility. The verification is run by Demcorats who would be fired for denying eligibility. Illegals put Obama in office, as well as Biden.

States That Allow Driver’s Licenses for Undocumented Immigrants
State Year Law Enacted
California 2015
Colorado 2014
Connecticut 2015
Delaware 2016
Hawaii 2016
Illinois 2013
Maryland 2014
Massachusetts 2023
Minnesota 2023
Nevada 2014
New Jersey 2021
New Mexico 2003
New York 2019
Oregon 2021
Rhode Island 2023
Utah 2005
Vermont 2014
Virginia 2021
Washington 1993
Washington, D.C. 2014

[ducksalad]

From voting to driver's license.

You didn't just move the goalpost, you hurled it out of the stadium in one throw.

[Glaucomatose]

Can you explain any way, in your view, that the President should be constrained by / subject to the law or the Constitution?

After all, presumably every President would claim they were elected to do the thing they were currently trying to do: Biden would claim he was elected to forgive student loans, a future Democratic president would claim he was elected to stop pollution or get rid of guns, etc. Wouldn't any judge ruling against them on anything amount to "lawfare" against what they were elected to do?

[SRG2]

Trump was elected to stop illegal immigration and to expel those in the country

But not to break the law in so doing. Trump's oath of office precludes law-breaking, so he cannot argue - and indeed, neither can you - that his being elected to carry out a specific policy gives him the ability to break the law. For some reason, cultist fuckwits don't seem to understand this point.

[GKHoff]

Although he can't intentionally break a law whose meaning is clear and certain, he can test the boundaries of a law or constitutional provision that is vague or ambiguous.

[SRG2]

True, but his use of AEA and attack on 14A do not fall into that category.

[Mr. Bumble]

...in your opinion.

[MollyGodiva]

"All other arguments are perjury. They should be punished as perjury is."
How very fascist of you.

[Schroeder4213]

What makes your point even more alarming is that, even though the administration says it will follow precedent, it is violating precedent (Wong Kim Ark and three other cases) in this very case. The administration says, of course, that Wong Kim Ark is distinguishable. But, to make the same point in two different ways, (1) every case is "distinguishable" for someone with motivated reasoning and (2) in *my* view, Wong Kim Ark isn't distinguishable.

[Reallynotbob]

This.
One can always advocate for a distinction, regardless of whether one exists. The virtue of injunction is to flip the burden of proof such that everyone gets the same court-adjudged treatment unless a distinction holds up.

[wvattorney13]

By the same token everyone wants to argue similarity to a winning litigant despite there being relevant differences. My clients do it all the time. They go to the prison law library and cite me a case and I point out how the defendant in that case is vastly different from my client. Why should there be a presumption of similarity?

Shouldn't we have an injunction "unless a [similarity] holds up"?

The whole thing boils down to the first poster personally believing that there is no distinction between this case and Wong Kim Ark, therefore, national injunction. What's to stop that from happening in every case?

[JoeFromtheBronx]

Someone flagged this in an Orin Kerr thread, but the commenter used curse words and was crude in response to someone many people mute, so Kerr didn't want to address the comment.

[DaveM]

And what "motivates" you to find Wong Kim Ark not distinguishable? See, that's the problem, we could do this all day.

[GKHoff]

Wong Kim Ark was a child of parents who were in the country legally and permanently. That leaves room to argue that it does not apply to children of parents who were in the country illegally or impermanently.

[David Nieporent]

Wong Kim Ark was a child of Chinese parents. That leaves room to argue that it does not apply to children of Japanese parents.

[Mr. Bumble]

Looking forward to the day you become a judge.

[windycityattorney]

That isn't quite true if I recall the facts of the case correctly. The whole reason Wong Kim Ark left the US was to go visit his parents in China and upon his return the chinese exclusion acts caught him up and he sued. If his parents lived here both legally and permanently - he wouldn't have gone all the way to China to visit them.

[David Nieporent]

Well, at the time WKA was born, his parents were living here. "Permanently" isn't the right word, because they later moved back to China, but it was a long term residence, as opposed to them being tourists or the like. (It's a mistake to treat those as formal legal categories as they are now, because that's not how it worked in the 19th century. But as a practical matter, they were living here rather than just visiting.)

[not guilty]

"Wong Kim Ark was a child of parents who were in the country legally and permanently. That leaves room to argue that it does not apply to children of parents who were in the country illegally or impermanently."

As I have pointed out time and again on previous threads, numerous SCOTUS decisions since United States v. Wong Kim Ark, 169 U.S. 649 (1898), have 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”).

[bernard11]

the administration says it will follow precedent,

Yeah. We hear this over and over again. Why would anyone believe it?

[mrisch]

The thing that all this debate seems to be missing is that this is all about whether an order is valid. The first time a court, ANY court, says that the order is invalid, then the administration is acting illegally by acting on the order in another case. The only reason we need a "nationwide" or "universal" injunction is that the administration does not believe that a district court's ruling is binding and that only the Supreme Court can rule on the order or statute. Now, I don't know if that's proper or not (I think it's probably not, but here we are), but that's what's at stake here.

[Reallynotbob]

The administration need not credit the decision of the District Court for the Eastern District of Wisconsin in dealings with parties in Louisiana.

More importantly, failure to abide by the ED Wis. decision carries no penalty other than losing again elsewhere. But a nationwide injunction would (a) give agency staff a basis to disobey contrary instructions from appointed agency heads, and (b) subject agencies and agency personnel to contempt penalties.

[windycityattorney]

Is that true for a ruling finding an act or statute unconstitutional?? I thought the ruling that something violated the us constitution meant that the action was void/ultra vires.

Then you have the issue of claim preclusion when the fed govt is the defendant and losing party...and what is referred to as res judicata.

[Riva]

Underlying all this concern, expressed by Kagan's exchange, is a fundamentally flawed presumption that the executive will violate the law. The federal courts have never assumed, in their analysis, on any topic, that the executive will act illegally. If the S.Ct. decides a case, then it should be assumed that the executive will follow the nationally controlling precedent. It should be assumed that national injunctions in that context are unnecessary. The apparent dislike of our sitting president by some members of the Court is not a valid basis to expand the power of the federal courts.

[Reallynotbob]

The flagrance with which this administration is violating Wong Kim Ark undermines your argument.

[Riva]

Nope. The administration is not violating the clear holding of Wong Kim Ark. Maybe you should read that holding for yourself before commenting? And to the extent there is disagreement, the matter is pending before the courts . You are committing the same error noted above by assuming that the executive will disregard the Court's ultimate determination.

[Reallynotbob]

Please explain how you are reasoning. Include (1) how the 14th Amendment doesn't apply on its face, and contradict the administration's position; and (2) what substantive distinction you are drawing to the precedent in Wong Kim Ark.

[Riva]

We could argue about the substantive merits if you want. We could start with the actual holding, which was not nearly as expansive as some claim ("The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.") Then we could examine related precedent, the 14th amendment and historical practices. Which, at the very least, shows that the issue as to birthright citizenship for illegals has not been definitively established in the law.

Disagree on the merits if you want but the point is the respective parties have a dispute that will be resolved. That's what the process is for. The error is to assume that the present administration will simply ignore the Court's ultimate resolution.

[Glaucomatose]

Every court that has looked at this question disagrees with you. If their opinions don't matter to Trump, or you for that matter, why should we think any other judicial opinions would?

[Riva]

The Court has not looked at it. And the administration has observed to the letter the lower courts rulings, however inappropriate. The error is to simply assume that an administration will ignore the Court's final determination. This the Court has never done before.

[Glaucomatose]

Of course it did, in Wong Kim Ark. You think that the cases subject to the executive order are distinguishable, but literally every court that's considered this disagrees with you.

So if we accept your view of judicial power, how do the courts have any ability to constrain the executive branch at all? The executive branch takes an unconstitutional action; a court orders the executive branch to stop; the branch appeals to the circuit, which again orders the executive branch to stop; and the executive branch applies for cert - all the while continuing to take that same action against other people. Eventually, the Supreme Court rules that the action was, indeed, unconstitutional, and the Supreme Court stops it in that particular case. But then the executive continues taking the exact same action against other people, arguing all of those cases are distinguishable. And why shouldn't it? In your view, it's up to the executive or the Supreme Court, only, to decide the scope of any prior decision of the Supreme Court, even if it's plainly obvious to every other court that the new cases are indistinguishable. And nobody has any ability to stop the executive from doing it.

[Riva]

The issue of whether birthright citizenship extends to the children of illegals has not been definitively decided. It is making its way through the courts now. And as far as disobeying court orders, that is not what happened in the present case and you continue to make the same error. You assume that the executive will not abide by the Court's ultimate determination. There has never been such a presumption before. In fact, in their analysis, courts presume that the executive will act legally. Standing has been denied on some supposed basis that the executive will violate the law. The Court would be twisting the law for its own jurisdictional aggrandizement to reason otherwise. "But Trump" is not a valid argument.

[Glaucomatose]

Sure it was. It was decided when the Supreme Court wrote, "The real object of the fourteenth amendment of the constitution, in qualifying the words 'all persons born in the United States' by the addition 'and subject to the jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,—both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country." Again, literally every court that's looked at this has said that this is precisely what was decided in Wong Kim Ark, which has nothing to do with the immigration status of the parents of the child in question.

The fact that you're saying now that this wasn't decided for "the children of illegals" illustrates exactly the point I'm making, in that you, or more consequentially the executive branch, could always identify some detail about Baker's case to separate it from Able's - it hasn't been definitively decided that the Supreme Court's ruling last week applied to people who are left-handed, or who live in Wichita, or who said mean things about the President - and only the Supreme Court would be in a position to step in (in your view) and say that these are nonsensical factors that don't actually distinguish every other case from the allegedly binding "precedent."

[David Nieporent]

Right; these people don't understand how legal interpretation works. If a case says, "He wants to possess a cat. But under the law, no pets are allowed," you don't get to argue, "Well, that case was about cats; so it never decided whether one can have a goldfish." "No pets" means "no pets," regardless of the specific application of that rule.

Of course, nothing prevents one from arguing, "Goldfish should be treated differently, because they live in tanks, so we'd like that decision to be overruled." But you don't get to pretend that the first decision didn't say anything about goldfish.

[Riva]

This is rather pointless. No court had ever definitively held that the children of illegals were entitled to birthright citizenship. Of course, one can always parse through the rather necessarily verbose language and dicta of Wong Kim Ark to argue otherwise. But that's an aspect of every case, two sides presenting different arguments. Without which, one doesn't actually have a case.

But back to the silly questioning of Kagan and Sotomayor, it's just another rehash of the silly SEAL Team 6 hypo. They just assume the executive will act illegally. But the ultimate stupidity ignores the fact that in either deranged fantasy, if they came to pass, there would be nothing to restrain an executive anyway. Certainly not any court order, whether a national precedent or an injunction An executive who would ignore a national precedent would ignore a universal injunction.

[not guilty]

"The issue of whether birthright citizenship extends to the children of illegals has not been definitively decided."

You lie, Riva. As I have pointed out to you repeatedly before, in United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 73 (1957), was a habeas corpus proceeding to test the validity of an order of the Board of Immigration Appeals denying the petitioners' request for suspension of deportation. The Petitioners, husband and wife, entered the United States in 1951 as alien seamen, and remained unlawfully after expiration of their limited lawful stay. In November 1951, a child was born to them -- an American citizen by birth. In January 1952, petitioners applied for suspension of deportation under §19(c) of the Immigration Act of 1917, which conditionally authorizes suspension of a deportation which "would result in serious economic detriment to a citizen . . . who is the . . . minor child of such deportable alien." The Board of Immigration Appeals found that petitioners were eligible for relief but, as a matter of administrative discretion, denied suspension of deportation, relying mainly on the fact that petitioners had established no roots or ties in this country. Id., at 73-75.

The Board's findings there included:

"It is obvious that the American citizen infant child is dependent upon the alien parents for economic support, care and maintenance. Documentary and other evidence establish good moral character for the requisite period. The aliens have no connection with subversive groups."
"* * * *"
"As stated above, we have, in the instant case, a family consisting of two alien parents illegally residing in the United States and one American citizen child, age about two and one-half years. These respondents have been in the United States for a period of less than three years. Both arrived in this country as seamen. They have no other dependents or close family ties here. The record indicates that the male respondent may be able to obtain work as a Greek seaman and earn about $85 monthly."

"Notwithstanding the fact that . . . the deportation of these respondents would result in a serious economic detriment to an American citizen infant child, the granting or withholding of maximum discretionary relief depends on the factors and merits in each individual case, and is a matter of administrative discretion.

353 U.S. at 75-76 (emphasis added).

Upon the Petitioners' motion for reconsideration, the Board found We indicated in our previous order that the deportation of the respondents would result in a serious economic detriment to their citizen minor child, and we do not question that the respondents have established the statutory requirements for suspension of deportation. . . ." Id., at 76-77 (emphasis added).

Upon being taken into custody for deportation, petitioners instituted the present habeas corpus proceeding, alleging that the Board abused its discretion in denying their application for suspension of deportation. The District Court dismissed the writ, 133 F. Supp. 433, and the Court of Appeals, one judge dissenting, affirmed, 233 F.2d 705. 353 U.S. at 77.

The Supreme Court expressly opined that the Board of Immigration Appeals was correct in its determination:

We do not think that there was error in these proceedings. It is clear from the record that the Board applied the correct legal standards in deciding whether petitioners met the statutory prerequisites for suspension of deportation. The Board found that petitioners met these standards, and were eligible for relief. But the statute does not contemplate that all aliens who meet the minimum legal standards will be granted suspension. Suspension of deportation is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised even though statutory prerequisites have been met.

353 U.S. at 77 (footnote omitted, emphasis added). The U.S. citizenship of the child was a sine qua non of the Board's finding the parents to be eligible for suspension of deportation.

Justice Harlan wrote for the seven justice majority, "In November, 1951, [the Petitioners'] child was born; the child is, of course, an American citizen by birth." 353 U.S. at 73. Justice Douglas, joined by Justice Black, wrote in dissent, “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.” Id., at 79.

IOW, seven justices affirmed the discretionary decision of the Board of Immigration Appeals to deny suspension of deportation, which decision expressly found the infant to be a U.S. citizen. All nine of the justices recognized the child's American citizenship.

[MollyGodiva]

The court is not required to base their opinions on legal fiction.

[dwb68]

The judiciary only has the power to persuade. It cannot force anyone to do anything, nor has it ever had that power. Jurisdiction, especially as to a sovereign, is by assent. When the judiciary issues a mandate, it relies on the executive to enforce it, and congress not to overturn it.

The federalist quote is great but bear in mind, "resist encroachments" is a two way street. The executive can resist encroachment of the judiciary by ignoring their dictates Andrew Jackson style "the chief has his decision now let him enforce it". And we saw it used, when a federal judge arrogantly claimed the power to turn planes around over international waters when he shouldnt be hearing the case in the first place.

[JamesMarkels]

You realize President Jackson nixed that position when, later that same year, South Carolina decided that it could nullify federal laws it did not agree with. All of a sudden, realizing the ultimate endgame that his reckless earlier statement led toward, President Jackson turned tail and insisted that SCOTUS decisions had to be obeyed by all.

[Longtobefree]

"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

The federal judiciary is leading a lot of people to contemplate that consent.

[Glaucomatose]

The people who don't like that they live in a country subject to a Constitution, and don't want to go through the hassle of amending it, are free to find another country that isn't.

[Longtobefree]

I hope this is not a surprise, but that quote is not from the US Constitution.

[Glaucomatose]

I hope this is not a surprise, but the litigation Trump's administration has faced largely does not argue that he has been violating the Declaration of Independence.

[agarrett]

I'm at least inclined to the administration's view here, that the courts can give precedents, rather than orders. The argument I'd make against Post's argument is, 'why does the court require a case?'

We take it for granted that they cannot, on their own, declare what the law is and issue orders accordingly. Yet, if I follow the argument correctly, I'm not sure why. If their job is to say what the law is, then why is this limit built in?

So, my answer to that question is that their power really is limited to deciding specific cases. That, in turn, becomes a precedent which the lower courts should apply, trying to ensure equal justice. Now, the counter to that is that done this way, my equal justice only applies to those who can hire lawyers, and of course there's a lot of overhead in going through the court system, and it can take years - nationwide orders are far more efficient.

My answer here is nowhere near as satisfying, I'll admit. I'd say it falls on judges to either go faster or impose some penalties when the government - or anyone, I guess - is pursuing clearly erroneous cases. I know we have some such penalties by law, but they don't seem to be applied that often, so this is not the best answer.

Anyway, not a lawyer, so definitely interested in other takes.

[JamesMarkels]

I do not understand your claim that "the courts can give precedents, rather than orders." Courts give orders all the time. That's what they do. There is nothing out there saying that only trial courts give orders, and appellate courts only give precedents. Rather, ALL courts issue orders based on precedent, and the appellate courts get the second or last say as to what that precedent is.

[agarrett]

Fair enough - I should have used the same terms as in the article. They can give 'binding nationwide precedents' rather than 'binding nationwide orders.' They can, I will concede, give binding orders as to the case at hand, but I continue to incline to the view that they must be limited to those parties.

Is that clearer?

[Sarcastr0]

I think I'm tracking. Precedents bind courts only; orders are not so limited.

The power to make orders to parties in a case is important - indeed load-bearing - to the judicial power given to the judiciary in Article III.

In the cases here, despite the government being a party to the case the government claims they are not bound to follow the order as to people other than their opposite party in the court.

That's the issue.

[JamesMarkels]

Okay. But if what you are saying is true, then the Dobbs decision only applied to Mississippi, and all the other states were unable to change their abortion laws until they filed lawsuits to apply the precedent, right? That's not what happened, and that doesn't make sense. The assumption is that everyone understands that the precedent in Dobbs applied everywhere, with the same effect. If California argued that "Dobbs doesn't apply in this state" to any court, it would be sanctioned.

It reminds me of when I litigated a case in Virginia to challenge a state criminal law on federal preemption grounds. Technically, if I only named one prosecutor (say, the prosecutor for the City of Richmond) in my lawsuit, and the federal court held that the law should be enjoined because it was preempted, technically only that prosecutor would be affected -- the prosecutors in the rest of Virginia could continue arresting people under that law because they were not parties. So I went ahead and named and served all the prosecutors in Virginia (there's a LOT of them!). But the AG's office told me that if an injunction was entered against one prosecutor, it would have told all the other prosecutors to follow suit out of comity. THAT is an executive branch showing deference to the courts. But if executive branches are really going to push it and insist that no, they will not be granting that comity, then the courts are in an quandary as to how to protect the rule of law. I highly doubt that the answer that will satisfy the courts is "too bad, the executive branch can end-around you quite easily."

[agarrett]

This is one reason I like this site (OK, most of the time ;)) That's a good counter, and I have to think about it.

So, let me start with your first example, Dobbs. Yes, I believe the decision only applied to the case at hand, and thus affected Mississippi. Now, states can always change their laws - not claiming to be an expert, but I haven't heard of a judicial order prohibiting that - but those laws in turn can be challenged in court. Post-Dobbs, lower courts are bound by the precedent, and the challenges should fail. Roe would, in my opinion, be a better example. The decision applied to the Texas law, and didn't overturn other state laws, but states either stopped enforcing them or saw them quickly overturned under the precedent. Of course, states could continue changing and tweaking their laws, with the intent of either evading Roe's strictures or creating a case to challenge it. If the court's decision was an order on all the states, we could not have gotten to Dobbs, after all.

Your second example is, I'd even agree, the way we expect things to work. The court confines itself to the case at hand, and the executive doesn't try to push a (presumably) reasonable decision. Of course, the question at hand is what to do when they don't - and just to be fair, that could be due to the executive being unreasonable or the court's doing the same. My thought that sanctions for frivolous suits is, I admit, unsatisfying.

But I'm also left with the problem that if courts aren't bound to the case at hand, why is the case necessary in the first place?

[JamesMarkels]

The case is necessary to create the controversy, as in there is a legal question for the Court to resolve that isn't just of advisory effect. If advisory opinions were on the table, the Courts would get deluged with those and be distracted from addressing the actual work people need them to do.

I admit that Dobbs is not the best example because it eliminated a barrier to law rather than create one. But it seems you agree that the way things SHOULD work is "the rule in one place is the rule in all" when it comes to SCOTUS, and that forcing litigation in every state (and sanctions, presumably) to extend that ruling is inefficient and unsatisfying. Moreover, it teaches that executive branches can (and perhaps should) ignore court rulings where public polls are more valuable than whatever sanctions they might be assessed. Since Trump is basically impeachment-proof, what's stopping him? How many people would he be willing to unilaterally deport, without due process, warranted or not, to El Salvadoran jails before the courts think of a real sanction that he may still ignore? What if some of those people are citizens, not immigrants? What if they are his political opponents?

The reason why the courts have these judicial powers is because the alternative is far, far worse.

[Speaking for normal people]

so then all real authority is in the Courts and all responsibility is in the Executive, yes, I see. Slavery would never have ended if Lincoln had not told the Courts several times "Go scratch!"
How --- has anyone even conjectured--- could Lincoln have prosecuted the war to conclusion without elimination of habeas corpus. The Executive is not the National Suggestion Center that hopes the Courts will say "SImon Says , Go!"

[David Nieporent]

Slavery would never have ended if Lincoln had not told the Courts several times "Go scratch!"

Slavery ended when Congress passed, and the states ratified, an amendment. Not by Lincoln telling the courts any such thing.

[Sisu]

"Slavery" in the US was ending prior to Lincoln due to economics. And, not just due to the fundamental inability to increase the productivity of manual laboring slaves; but the economics which led Czar Alexander II to speak out against serfdom in the 1850s and support for Lincoln and the northern states in the early 1860s. Thus Russia was against Great Britain's support for the southern states; ultimately, brinkmanship using their respective navies avoid their direct conflict. ...

[David Nieporent]

"Slavery" in the US was ending prior to Lincoln due to economics.

No, it wasn't. That's sort of the last fallback neoconfederate position: fine, slavery was bad and the war ended slavery, but it was still unnecessary because slavery would've ended anyway. But there's no evidence that its end was imminent. (It was a cultural as well as economic institution.) And saying, "Oh, they should've just stayed slaves for another 20 or 30 years and then maybe they'd have been freed…" is monstrous anyway.

[bernard11]

"Slavery" in the US was ending prior to Lincoln due to economics.

Then why did the slave population increase, by somewhere between 23% and 33%, every decade from 1790 through 1860?

[MollyGodiva]

Neutering the judiciary so Trump has no pushback to his illegal orders is the goal.

[JamesMarkels]

This post is very instructive. The Court on many occasions has struck down a law or executive order as unconstitutional, and that ruling applies to everyone nationwide no matter who the parties are. It's not as though the Court's opinion striking down Biden's student loan forgiveness program only applied to the six states that sued, right? So if the Court has the power to issue rulings that go beyond just the parties before it, how does it not have the same scope available for injunctive relief? What's the legal basis for that distinction? None that I see. And yet the administration's rejoinder is essentially that it can choose whether to obey the Court's rulings. Oh really?

Yes, we are truly straying into "[the Court] has made [its] decision; now let [it] enforce it" territory per President Jackson. Of course, that same man did a 180 once South Carolina decided that it could nullify federal laws it didn't like. Turns out, having SCOTUS at the top is truly the better option.

[taghkanic26]

Thanks, James, and David for your instructive posts on the "nationwide injunction" matter. I'm not sure, James, that (your example) the Court's ruling in the loan forgiveness program "applied" beyond the states that sued. It depends on what "applied" means. And this goes as well to David's concern that POTUS should treat a SCOTUS judgment against him, in Abel v. Trump, as "binding" with regard to similarly situated persons who weren't parties to the Abel case (if I'm reading David correctly on this). Better, I think, is to say that a SCOTUS ruling serves as strongly presumptively binding *precedent* - in the way that precedent binds - but not that a ruling in case X is "binding" as a ruling or judgment on (say) states who weren't parties to the loan forgiveness case on on (say) persons who weren't parties to the Abel v. Trump case.

[Lee Moore]

I found David Post’s comment that ultimately this is about “judicial power” and the whole structure of judicial power atop which the Justices themselves sit …. interesting. Ambition and self interest even get a mention.

Are we expecting them to recuse ?

[Bob from Ohio]

The courts, from Marbury onward, have been on a constant binge of power grabbing. The other branches have largely not pushed back.

[Lee Moore]

You are underestimating my cynicism. I do not expect them to recuse, and I expect them to vote themselves some more power for precisely the reasons that that wicked old cynic D Post alludes too. And I agree that that is what judges have been doing since our ancestors crawled out of the oceans.

But if they do not recuse when the case is about their own power (and ambition-TM D Post) may we hope to hear less about SCOTUS recusals in future ? Compared to the Justices own power and ambition, the sort of trivia that excite our VC recuseniks - well, it's straining at a gnat and swallowing a camel.

[David Post]

Lee Moore: "Are we expecting them to recuse ?
I think you're misunderstanding my point. Their "ambition" to protect the Court's power is not a bug, it's a feature of the constitutional scheme; they shouldn't recuse themselves in cases where their power is at stake, they should push back. That's the message from Fed 51.

[Bob from Ohio]

"GENERAL SAUER"

Its NOT a rank!

No one should trust a court that makes such a mistake!

[SRG2]

It's not a mistake. It is the correct style

[Bob from Ohio]

Its the style they use but "General" describes the type of attorney. Mr. Solicitor General should be the style they use, but alas we are a fallen people.

"The term was originally used to refer to any person who holds a general power of attorney to represent a principal in all matters. In the common law tradition, anyone who represents the state, especially in criminal prosecutions, is such an attorney. Although a government may designate some official as the permanent attorney general, anyone who came to represent the state in the same way could, in the past, be referred to as such, even if only for a particular case." wikipedia

[ScottK]

I agree that referring to a civil prosecutor or solicitor as "General" is wrong as a matter of the English language, just as referring to a trans male by the female pronoun is wrong.

[SRG2]

You're arguing against established convention. It's like my arguing that the US usage of "Esq" is incorrect because that's not how it's used in England.

[ScottK]

It's not "established" and wasn't even used until my fellow Missourian John Ashcroft decided he was in charge and needed to use the adjective for his title.

I have yet to see evidence of the usage of "Vice Vance" or "Associate Alito" or "Majority Schumer."

[Lee Moore]

This used to bug me too (a tiny bit.) But now I find myself quite relaxed about it. A miltary "General" is a General Officer, in the sense of an officer with general authority, ie all singing all dancing - he's in overall command.

The Attorney General is a General Officer in this sense - she's not a mere peon District Attorney, she's in command of the US Attorneys generally. I don't know who the Solicitor General commands but I assume there are some peon solicitors floating about. But anyway the "general" connotes broad duties, responsibilities and authority.

Why is Attorney General that way round rather than General Attorney ? Dunno but it doesn't bother me. General, as I say, comes from General Officer. But a Captain General is (or was) a thing too. So I don't think the order of words matters.

Because of the military connotation of "General" I agree it does sound a little precious to have the Dogcatcher General referred to as "General" but I regard that as an opportunity to snigger at pomposity.

[Bob from Ohio]

"But now I find myself quite relaxed about it."

Sad.

[SRG2]

To be either a hard prescriptivist or a hard descriptivist is to be wrong.

[bernard11]

Why is Attorney General that way round rather than General Attorney ?

Because "general", way back when, was an adjective, not a noun. These "general" titles, including military ones, come from French, where the adjective generally comes after the noun, so these ranks were named Major General (originally Sergeant Major General) to distinguish between an ordinary major and a Major General.

Over time usage changed, and general became a noun, though the word order did not change.

[The Turtle Dove]

In a formal or a diplomatic context (also as a matter of practice in the UK courts, I think), the form of address is "Mr./Mme. Attorney/Solicitor." The longstanding Supreme Court practice is to say "General." Listening to some wartime argument tapes from the 1960's I thought I caught a bit of an ironic tone, but the practice started long before then. One of the unconsidered trifles I've thought about tracking down for some time now.

Mr. D.

[ChristopherJLinas]

My opinion is that the validity of universal injunctions turns on what the words "cases" and "controversies" mean.

I don't know enough about how Article III has been interpreted to give a really informed opinion, but here are my ignorant musings: Presumably, the fact that the drafters used those two different words in different clauses because each word has a different scope. Perhaps a "controversy" is broader than a "case" such that non-parties can be included within the same "controversy" even though they are not part of the same "case." If that is correct, then universal injunctions could be valid for controversies where the United States is a party.

[VinniUSMC]

Solution.

Supreme Court: Can grant national injunctions.
District Court: Can not.

Case closed. You're welcome.

[ChristopherJLinas]

One potential obstacle to that solution is that if the case falls under the Supreme Court's appellate jurisdiction (as opposed to original jurisdiction), then the Supreme Court cannot do anything that the District Court couldn't do. In appellate jurisdiction cases, the Supreme Court can only review the rulings of lower courts and determine whether they should have ruled differently. Appellate jurisdiction does not grant the Supreme Court any ability to exert entirely separate powers beyond what the lower court could have done. While there are some cases in which the Supreme Court has original jurisdiction, meaning it is flexing its own muscles rather than merely reviewing lower court rulings, those cases are narrowly defined by the constitution and would not include immigration cases. How does your proposed solution address this issue?

[Zarniwoop]

Solution.
Supreme Court: Can grant national injunctions.
District Court: Can not.

Yes, that is "a" solution.

But is it a good solution or a bad solution?

Case closed. You're welcome.

You kinda need to show your work. Make some sort of supporting argument. Otherwise, opinions are like ... well, everyone's got one.

[O Tempora]

"That's a pretty fundamental attack on one of the basic premises underlying the Constitutional balance of powers - the idea that it is "emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. 137 (1803)."

This is oft-quoted and just as oft misinterpreted. Courts have the power "... to say what the law is..." and only that. What Marshall did not say was that judicial department has any power actually to enforce its opinions generally, e.g., by issuing national injunctions that are enforceable by contempt actions against the Executive. The SG was exactly right that a SCOTUS decision may be binding precedent on inferior courts. If SCOTUS holds an executive action unconstitutional and the Executive branch continues to enforce it in spite of that, there are two remedies: impeachment and the next election.

[DaveM]

"If SCOTUS holds an executive action unconstitutional and the Executive branch continues to enforce it in spite of that, there are two remedies: impeachment and the next election."

This is the right answer as the last resort. Each co-equal Branch states their position using the authority they have. Ultimately, the people decide which is in the right.

But as a last resort only! As the last step before all comity breaks down completely. Because what comes after that is dissolution.

[Flink]

Isn't this discussion a variation, for Executive Orders, on the long-standing blurred line between an as-applied challenge to a law and a facial challenge to that same law? It's not exactly the same, but the theory seems to be similar. The administration's position here seems to be that courts can only view temporary injunctions on a case-by-case basis as applied to that person's facts. In contrast, the broader view is that there are some cases where the injunction applies more broadly because the EO itself is based on an incorrect reading of current law. The middle position is that only class actions, which have requirements for commonality, etc., can be used for properly constituted classes.

Facial challenges to laws are not favored by the Supreme Court, but are not unheard of either. While an EO is a very thin kind of law, proper ones are enforceable. The hard part here is for the Court to determine how to treat these temporary but consequential hurry-up offenses that the current administration has invited so temptingly.

[Zarniwoop]

Limiting national injunctions to "facial challenges to a constitutional right" (here, the purely legal Q of "who qualifies as a citizen under the 14th Amd?") was specifically suggested as one possible way to limit them during oral argument.

It also gets us back to the observation a lot of actual-lawyers here at the VC make: because this is a strong example of such a scenario, it's an completely lousy vehicle to challenge national injunctions. There might be some good places to draw a line between proper national injunctions and improper ones - Judges across the left/right spectrum agree on that! - but this one is about the best possible case in favor of national injunctions I can think of in my legal career and even in my lifetime (mid 50s currently).

[Squirrelloid]

I'm a little confused. Courts can only bind parties before the court, but the executive (and its relevant officers) are before the court. Why can the court not order them to stop doing action x, whether or not with respect to the other party? The order only binds a party to the case. It's not binding any non-parties.

[David Post]

Squirrelloid: I was wondering about this too. The answer is that the Supreme Court, in US v. Mendoza, held that the government is not subject to "offensive nonmutual issue preclusion" in circumstances where private parties would be.
That is, suppose I sue Walmart on the grounds that one of its advertisements is deceptive in violation of the Lanham Act. Suppose further that the court agrees with me, and I win.
You were also deceived by the advertisement, and you now sue Walmart with the same claim. You weren't a party to the earlier case, so you're not bound by the earlier resolution of the issue; if Walmart had prevailed, you would not be estopped from relitigation the question. But Walmart did not prevail, and it is estopped from challenging the finding that the ad was deceptive.
In the Mendoza case, however, the Court held that this kind of estoppel - "offensive" (because it is available to future plaintiffs), "nonmutual" (because it can be raised by people who are not themselves subject to the estoppel) is not available in suits against the government. So when Able sues and gets a ruling that the Birthright E.O. is unconstitutional, the government is not estopped from re-litigating that issue when Baker sues with the same claim.
[A very good summary and analysis of the relationship between "nonparty injunctions" and "collateral estoppel" is in Zachary Clopton's "National Injunctions and Preclusion," 118 Mich. L. Rev. 1 (2019) [available at https://repository.law.umich.edu/cgi/viewcontent.cgi?article=3469&context=mlr%5D [H/t to Taghanick26 for the pointer]

[The Turtle Dove]

So head to the seat of government and get personal juridiction over the agency head. Seems to work just fine for the utility pricing cases in the D.C. Circuit. Or perhaps I'm missing something.

Mr. D.