The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"The Clear Winner in Trump v. CASA: The Supreme Court"
"Lower courts lost, and the executive branch got mixed results."
Jack Goldsmith (Executive Functions) is always worth reading, and his article today on the universal injunctions especially so; an excerpt:
Supreme Court "Supremacy" Vis-a-Vis the Executive Branch
Charlie Savage maintained that Trump v. CASA "diminish[ed] judicial authority as a potential counterweight to exercises of presidential power." Ruth Marcus made a similar claim in a piece entitled "The Supreme Court Sides With Trump Against the Judiciary."
These propositions are true only of the lower federal courts. Trump v. CASA did not diminish the Supreme Court's authority vis-a-vis the presidency. The Court held at least that lower courts lacked authority to issue universal injunctions. The Court was ambiguous about whether it could issue universal relief via injunctions. But it made clear in ways that it never has before that it expects executive branch compliance with its opinions and judgments on a universal basis.
Begin with the last sentence of the opinion. At oral argument, Sauer "concede[d] that the 30-day ramp-up period that the executive order itself calls for never started" and that "there should be a 30-day ramp-up period" for the administration to provide guidance. The Court in the last sentence stated: "Consistent with the Solicitor General's representation, §2 of the Executive Order"—which implements the birthright citizenship ban—"shall not take effect until 30 days after the date of this opinion." That sure sounds like a universal injunction! The Court never explains how Sauer's concession got translated into a judicial command, presumably under the All Writs Act. The command is especially unusual since it is directed at a presidential order.
If this were a lower-court injunction and it were closer to January 20, the Trump administration might skirt the injunction by replacing (or amending) the executive order to allow a shorter ramp-up period. Or it might argue that the injunction applied only to the parties to the interim order application. But Sauer's reputation and the Trump administration's credibility before the Court are on the line. I expect the Trump administration to comply with this 30-day universal injunction. And if it doesn't I expect a quick intervention by the Court.
But there was a much greater concession by Sauer at oral argument with much greater significance for relations between the Court and the executive branch. As I explained last month, Sauer pledged to five different Justices that the government would, as Sauer put it to Justice Barrett, "respect the opinions and the judgments of the Supreme Court." When she asked whether he was "hedging at all with respect to the precedent of this Court," Sauer said he was not. Sauer similarly told Justice Kagan that a Supreme Court decision on a matter "would be a nationwide precedent that the government would respect." And he made analogous statements to other Justices….
Read the rest here.
