His and Chris Walker's Delegation and Time was cited in Justice Gorsuch's dissent yesterday in FCC v. Consumers' Research and his Is the Business of the Court (Still) Business? was cited in Justice Jackson's dissent last Friday in Diamond Alternative Energy v. EPA.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Bray and Bagley on Trump v. CASA
Two worthwhile commentaries on the Supreme Court's decision to curtail universal injunctions.
There has been quite a bit of quick commentary on the Supreme Court's decision to curtail the entry of universal injunctions in Trump v. CASA, much of it generating more heat than light (including that offered by President Trump). This post highlights two essays on the decision that are worth the read.
First is an op-ed by Samuel Bray in the New York Times, "The Supreme Court Is Watching Out for the Courts, Not for Trump." Professor Bray has been among the most persistent and important critics of universal injunctions and Justice Barrett relied upon his scholarship in her decision. In his op-ed, he gives his read of the decision, explains why it is unlikely to allow President Trump's unlawful Birthright Citizenship Executive Order to ever take effect, and explains why he thinks it "gives the courts a chance to reset, and to shift toward the more deliberative mode in which they do their best work." He notes that the decision surfaces "competing visions for the role of the courts in our constitutional system."
One vision is to say that the job of every judge is to declare the law and make sure everyone, including the president, follows it all the time. There's a lot to be said for following the law, and in our constitutional system, no one is above it.
Another vision is to say that the chief job of the courts is to decide cases. Resolving disputes is what gives the courts their legitimacy: It is the core of the judicial power given by the Constitution, and robust judicial power is tolerable in a democracy precisely because the judges stay in their lane. A judge's job is not to say, "Someone is wrong on the internet" and then do something about it. Instead, her job is to decide the case before her fearlessly, according to the existing law, and to give the proper remedy to whichever party wins.
As should be clear, the Court has embraced the latter conception. Indeed, Justice Barrett rejected Justice Jackson's explication of the alternative vision quite forcefully.
Bray adds:
We live in a time of great pressure on our constitutional system, with a president who thinks he can make laws (he can't), suspend laws (he can't) and punish enemies without a trial (he can't). It is precisely at this time that the first vision is most attractive — and the second vision is most essential.
The courts must defend constitutional rights and liberties. But they must defend them as courts defend them: deciding cases for the parties and giving remedies to the parties. That function is what gives courts their constitutional legitimacy in a democratic society.
It will mean that courts don't have the power to remedy every wrong. And it will mean that a patchwork of rulings sometimes persists. But to remedy every wrong immediately and everywhere — outside of the case and the parties — is not what the courts are designed for.
Another commentary worth reading is by Nicholas Bagley, who has also long been critical of universal injunctions, albeit from the Left. (He testified against them in 2020.) In an Atlantic essay, "The Supreme Court Put Nationwide Injunctions to the Torch," he suggests his fellow progressives should be more supportive of the Court's decision.
Although the Supreme Court divided along partisan lines, with the liberal justices dissenting, I don't see this as a partisan issue. (The outrageous illegality and sheer ugliness of President Donald Trump's executive order that lies underneath this fight may go some distance to explain why the three liberals dissented.) Nationwide injunctions are equal-opportunity offenders, thwarting Republican and Democratic initiatives alike. Today, it's Trump's birthright-citizenship order and USAID spending freezes. Yesterday it was mifepristone, the cancellation of student debt, and a COVID-vaccine mandate. Why should one federal judge—perhaps a very extreme judge, on either side—have the power to dictate government policy for the entire country? Good riddance.
Like Bray, Bagley notes the range of relief that will still be available to litigants, such as through class actions and (unfortunately) under the APA. He also sees universal injunctions as a symptom of broader problems in our legal culture that may take longer to fix.
Nationwide injunctions are a symptom of a legal culture that affords judges a central role in American policy making. Without changing that legal culture, and the many different laws and doctrines that underwrite it, any single change—even one as significant as ending nationwide injunctions—will yield only a modest course correction.
Free Exercise Clause Rights to Opt Children Out of Public School Lesson That "Substantially Interfer[e]" with Their Children's "Religious Development"
[1.] The Supreme Court has been debating the meaning of the Free Exercise Clause for over 60 years. One view has been that the Clause generally gives religious objectors a presumptive right to be exempted from generally applicable laws, such as from bans on using peyote, requirements that one provide one's child's social security number to get various welfare benefits, requirements to provide certain health insurance to one's employees, and anything else that might conflict with one's religious beliefs.
This right was just a presumption, which the government could rebut if it has a strong enough reason. And indeed the presumption was often found to have been rebutted, in cases involving draft laws, tax laws, antidiscrimination laws, child labor laws, and more. But the presumption, though not very strong, was broad: It applied to a wide range of religious practices. Historically, that view had been associated mostly with the liberals on the Court, such as Justices Brennan and Marshall. The leading precedent here was Sherbert v. Verner (1963), written by Justice Brennan.
The opposite view has been that the Clause only forbids discrimination targeting religious believers or practices (such as laws that ban religious animal sacrifice but allow virtually identical secular killing of animals, or laws that exclude religious schools from various benefit programs that are offered to secular private schools). Historically, that view had been associated mostly with the conservatives on the Court, such as Justice Scalia and Chief Justice Rehnquist. The leading precedent here was Employment Division v. Smith (1990), written by Justice Scalia.
Curiously, the ideological polarity on this matter has flipped in recent years, with the Court's conservatives generally endorsing the traditional Brennan/Marshall view, and the liberals generally endorsing the Scalia/Rehnquist view. It looked, from cases such as Fulton v. City of Philadelphia (2021), like there were at least five votes on today's Court to bring back the broad-exemption-rights view.
But in today's Mahmoud v. Taylor, the conservative majority took a different approach: Rather than discussing government actions that interfere with religiously motivated behavior generally, it focused on a particular kind of government action—educational rules that substantially interfere with parents' ability to "direct the religious upbringing of their" children. And while this is just a narrowly defined Free Exercise Clause right (focused just on interference with religious upbringing), the protection appears to be quite strong.
Today in Supreme Court History: June 28, 2010
6/28/2010: McDonald v. City of Chicago is decided.
Friday Open Thread
What's on your mind?
Congratulations to Sam Bray and Will Baude, Cited in the Universal Injunction Case
It's Trump v. CASA, Inc.; Sam was cited extremely heavily (16 times by my count).
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Classroom commandments, the FBI's Most Wanted, and a phone book artifice.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
This week, a federal judge granted IJ clients a temporary restraining order in our third case challenging new federal rules for money-services businesses along the Mexican border—rules that will drown honest people in paperwork and catch no drug traffickers. The scoreboard? Three cases, three TROs. Read all about it in The New York Times.
New on the Short Circuit podcast: Religious liberties that will delight your local pogonologist.
- The Local Resident Voting Rights Amendment Act of 2022 gives noncitizens the right to vote in D.C. local elections, so long as they've lived in the district for at least 30 days before the election. Seven citizens challenge the law, alleging that it unconstitutionally dilutes their votes. District court: You and everyone else. No standing. D.C. Circuit: Reversed. "The litmus test is not numerosity but concreteness." Vote dilution is a concrete injury, even if all voters suffer it.
- During lineup, Nassau County, N.Y. detectives put shooting suspect on two phone books to make him appear taller. They also cover his hair, which was braided—the perp's was too short to braid. The victim identifies him, and he spends nearly 10 years in prison before exoneration. Second Circuit (over a partial dissent): "With enough artifice and disguise, almost anybody may end up fingered." No QI for the detectives. Read More
Today's Porn Age Verification Decision Doesn't Consider Minors' First Amendment Rights More Broadly
What are the First Amendment rights of minors? You might imagine two extreme positions:
- Minors have the same rights as adults. Friendly amendment: Restrictions on their rights have to be judged under the same tests (such as "strict scrutiny") applicable to restrictions on adults' rights, even if the tests might sometimes practically play out slightly differently for minors and for adults.
- Minors have basically no First Amendment rights, just as they have basically no Second Amendment rights, no constitutional right to marry, and no constitutional right to choose to have sex (even though Lawrence v. Texas has held that adults do have sexual autonomy rights). Friendly amendment: Minors only have a constitutional right to access speech through their parents' express choices (e.g., when a parent buys the minor a book or a video game).
But it turns out that the Court hasn't accepted either of those positions (though Justice Thomas in the violent video game case, Brown v. Entertainment Merchants Ass'n (2011), dissented in an opinion that adopted a version of the amended position 2).
How Should Courts Analyze Age Verification Requirements for Porn That's Illegal for Minors?
Prohibiting the distribution of porn to minors, the Court says, legitimately carries with it some burdens on adults as well, when the burdens are closely linked to distinguishing the adults and the minors.
The majority in today's Free Speech Coalition v. Paxton began with the established principle (see Justice Brennan's majority opinion in Ginsberg v. N.Y. (1968)) that certain material may be constitutionally protected for adults but unprotected when distributed to minors:
When regulating minors' access to sexual content, the State may broaden Miller's "definition of obscenity" to cover that which is obscene from a child's perspective. To be more precise, a State may prevent minors from accessing works that (a) taken as a whole, and under contemporary community standards, appeal to the prurient interest of minors; (b) depict or describe specifically defined sexual conduct in a way that is patently offensive for minors; and (c) taken as a whole, lack serious literary, artistic, political, or scientific value for minors. [The Miller definition for what can be prohibited even for adults would omit the italicized text from each prong of the test. -EV] …
The majority acknowledged that any age verification requirements "burden" the rights of adults in some measure—whether of the adult distributors (such as the vendor in Ginsberg) who must check patrons' age, or of adult patrons who have to prove their age. But it concluded that, because the speech was restrictable as to children, sufficiently narrow age verification requirements need not be judged under the highly demanding "strict scrutiny" test:
Age-verification laws like H.B. 1181 fall within States' authority to shield children from sexually explicit content. The First Amendment leaves undisturbed States' traditional power to prevent minors from accessing speech that is obscene from their perspective. That power necessarily includes the power to require proof of age before an individual can access such speech. It follows that no person—adult or child—has a First Amendment right to access speech that is obscene to minors without first submitting proof of age….
Requiring age verification is common when a law draws lines based on age … [citing as examples] proof of age to obtain a handgun license; to register to vote; and to marry. In none of these contexts is the constitutionality of a reasonable, bona fide age-verification requirement disputed.
Obscenity is no exception to the widespread practice of requiring proof of age to exercise age-restricted rights. The New York statute upheld in Ginsberg v. New York (1968) required age verification: It permitted a seller who sold sexual material to a minor to raise "'honest mistake'" as to age as an affirmative defense, but only if the seller had made "'a reasonable bona fide attempt to ascertain the true age of [the] minor.'" Most States to this day also require age verification for in-person purchases of sexual material. And, petitioners concede that an in-person age verification requirement is a "traditional sort of law" that is "almost surely" constitutional.
The facts of Ginsberg illustrate why age verification, as a practical matter, is necessary for an effective prohibition on minors accessing age-inappropriate sexual content. The statute in that case prohibited the knowing sale of sexual content to a minor under the age of 17. The defendant was convicted of knowingly selling a pornographic magazine to a 16-year-old. But, most of the time, it is almost impossible to distinguish a 16-year-old from a 17-year-old by sight alone. Thus, had the seller in Ginsberg not had an obligation to verify the age of the purchaser, he likely could have avoided liability simply by asserting ignorance as to the purchaser's age. Only an age-verification requirement can ensure compliance with an age-based restriction.
A Flawed, but Encouraging Nondelegation Decision
The Supreme Court may have reached the wrong result in FCC v. Consumers Research. But ruling emphasizes there are significant constitutional limits to legislative delegation to the executive.
In today's Supreme Court ruling in FCC v. Consumers' Research, a 6-3 majority upheld the Federal Communications Commission's authority to impose levies on telecommunications carriers to support a "Universal Service Fund" intended to subsidize telecommunications services for low-income consumers, people in rural areas, and some others who might not otherwise get them. The Court rejected the argument that the 1996 law authorizing this levy violates the nondelegation doctrine, which constrains delegation of legislative power to the executive. But, in the process, the majority also emphasizes important constitutional limits on delegation.
Importantly, Justice Elena Kagan's majority opinion emphasizes that a delegation of "boundless power" to impose fees would be unconstitutional. The majority upholds the universal service fee only because they conclude that the 1996 statute authorizing it imposes a variety of mandatory constraints on the FCC's discretion, including imposing both a "floor" and a "ceiling" on how much money can be raised, and what purposes it can be used for:
Consumers' Research argues that, even under our usual nondelegation test, the term "sufficient" does not do enough. That is because, in the Consumers' Research view, it sets only "a floor—not a ceiling—on the FCC's revenue-raising power…." Or to put the point differently, Consumers' Research thinks that the statute gives the FCC power, all on its own, to raise our hypothetical $5 trillion. And not unreasonably, it thinks that would pose a constitutional problem.
But in fact the word "sufficient" sets a floor and a ceiling alike. An amount of money is "sufficient" for a purpose if it is "[a]dequate" or "necessary" to achieve that purpose. Black's Law Dictionary 1447 (7th ed. 1999). That means, of course, that the FCC cannot raise less than is adequate or necessary to finance the universal-service programs Congress wants. But it also means that the FCC cannot raise more than that amount. Were the FCC to raise, say, twice as much as needed, the revenue would not be "sufficient" but instead excessive.
Elsewhere in the majority opinion, Justice Kagan points out that even a strict ceiling is not, by itself, enough to avoid nondelegation problems, if it leaves the executive with sweeping, effectively unconstrained authority:
[A] greater problem inheres in the shared position of Consumers' Research and the dissent: Whatever it applies to (just taxes or fees as well), its focus on numeric limits produces absurd results, divorced from any reasonable understanding of constitutional values. Under that view, a revenue-raising statute containing non-numeric, qualitative standards can never pass muster, no matter how much guidance those standards provide and how tight the constraints they impose. But a revenue-raising statute with a numeric limit will always pass muster, even if it effectively leaves an agency with boundless power. Consider a hypothetical raised at oral argument: Congress tells the FCC it can demand payments from carriers of any amount it wants up to $5 trillion. (The actual cost of universal service is, of course, a tiny fraction of that amount.) According to Consumers' Research, that statute is permissible because . . . well, because Congress has set the $5 trillion figure…. But so what? The purpose of the nondelegation doctrine is to enforce limits on the "degree of policy judgment that can be left to those executing or applying the law." Mistretta v. United States, 488 U. S. 361, 416 (1989) (Scalia, J., dissenting). The anywhere-up-to-$5-trillion tax statute would not do that, whereas a statute with qualitative limits well might.
In other words, nondelegation requires significant constraints on the "degree of policy judgment that can be left to those executing or applying the law." A seeming limitation that fails to do that is not enough!
These points put at least some real teeth into the Court's problematic "intelligible principle" standard for assessing nondelegation. It can no longer be argued that virtually anything will pass muster. In a concurring opinion, Justice Brett Kavanaugh likewise emphasizes "the intelligible principle test is not toothless," though he also notes that the scope of nondelegation constraints is narrower in "the national security and foreign policy realms."
All of this is good news for advocates of more rigorous enforcement of nondelegation constraints on executive power. It may be particular good news for those challenging Trump's attempts to use the International Emergency Economic Powers Act of 1977 (IEEPA) to impose massive new tariffs (I am co-counsel for the plaintiffs in one such case).
Under Trump's interpretation of IEEPA, there is neither a floor nor a ceiling to the amount of tariffs he can impose under that legislation. And there are also no enforceable limits to the administration's exercise of "policy judgment" under that law. IEEPA can only be invoked in the event of a "national emergency" that is an "unusual and extraordinary threat" to the US economy or national security. But the administration claims all determinations of what qualifies as a "national emergency" or an "unusual and extraordinary threat" are left to the president's unreviewable discretion. That sure seems like a claim to "boundless authority" to me! And the Court's decision in Consumers Research seems to bar such things.
In his dissenting opinion, Justice Neil Gorsuch argues that the majority misinterprets the relevant law here, and also that laws imposing taxes are subject to tighter nondelegation constraints than other powers. He may well be right on both points, especially the former.
But the majority decision is still a potentially valuable resource to those of us who want strong enforcement of nondelegation doctrine. Gorsuch himself notes that, even though the Court upheld this particular delegation, it "also signals, unmistakably, that there are some abdications of congressional authority, including in the very statute before us, that the present majority isn't prepared to stomach."
I explained why strong enforcement of nondelegation is necessary and valuable in an article published in Just Security, just yesterday.
UPDATE: It's worth nothing that the majority opinion also states that the degree of "guidance" required from Congress "is greater…. when an agency action will affect the entire national economy than when it addresses a narrow, technical issue" [internal quotation omitted]. This suggests stronger nondelegation constraints in situations where the executive claims broad, sweeping powers, which is certainly relevant to the IEEPA tariff situation.
Big Free Speech Takeaway from Today's Free Speech Coalition v. Paxton Porn Age Verification Decision
"Strict scrutiny is unforgiving because it is the standard for reviewing the direct targeting of fully protected speech.... [A]s a practical matter, it is fatal in fact absent truly extraordinary circumstances."
Today's majority upholds an age verification requirement for online porn, which is of course the more speech-restrictive option in this case. And it upholds the law by concluding that the "strict scrutiny" test—which the Court generally uses to evaluate content-based restrictions on speech that falls outside the First Amendment exceptions—doesn't apply to such age verification rules. (More on that later, but basically the Court concludes that the long-recognized First Amendment exception for distributing to minors material that's obscene as to them also justifies some burdens on adults, when the burdens are limited to age verification requirements.)
But in the process, the majority reaffirms just how demanding the "strict scrutiny" test is in the wide range of situations where it does apply. Indeed, the majority's definition of strict scrutiny appears to be slightly narrower but slightly (or maybe even significantly) stronger than the dissent's. As a First Amendment lawyer, I'll likely be citing the majority's passage a lot in cases where I'm challenging content-based speech restrictions:
Strict scrutiny—which requires a restriction to be the least restrictive means of achieving a compelling governmental interest—is "the most demanding test known to constitutional law." In the First Amendment context, we have held only once that a law triggered but satisfied strict scrutiny—to uphold a federal statute that prohibited knowingly providing material support to a foreign terrorist organization. See Holder v. Humanitarian Law Project (2010). That case involved an unusual application of strict scrutiny, since our analysis relied on the "deference" due to the Executive's "evaluation of the facts" in the context of "national security and foreign affairs."
My private nondelegation article and Reason Foundation amicus brief cited in FCC v. Consumers' Research
Justice Jackson cites my Notre Dame Law Review article, and Justice Gorsuch cites the amicus brief I wrote for the Reason Foundation.
Thanks to Eugene for blogging about Justice Jackson's shout-out, in FCC v. Consumers' Research, to my Notre Dame Law Review article, The Myth of the Federal Private Nondelegation Doctrine. (I'm in Paris today and just saw Notre Dame from the top of the Eiffel Tower a few hours ago, so this makes sense.) He quoted her already, but I'll do it again:
I write separately to express my skepticism that the private nondelegation doctrine—which purports to bar the Government from delegating authority to private actors—is a viable and independent doctrine in the first place. Nothing in the text of the Constitution appears to support a per se rule barring private delegations. And recent scholarship highlights a similar lack of support for the doctrine in our history and precedents. See, e.g., A. Volokh, The Myth of the Federal Private Nondelegation Doctrine, 99 Notre Dame L. Rev. 203 (2023).
But I also wanted to note that the amicus brief that I wrote for the Reason Foundation (which publishes Reason Magazine and hosts this blog, and where I worked for four years before grad school, from 1994 to 1998) also got quoted twice, in Justice Gorsuch's dissent. Here's what Justice Gorsuch has to say on the matter, in his footnote 6:
Before proceeding further, note some of the questions this case does not present. . . . Second, the Administrative Company's directors overwhelmingly represent entities with a financial stake in expanding universal service: those who benefit from universal-service programs (like schools and hospitals) and those who get paid to supply the benefits (the carriers). See Part I–B–2, supra. Some amici suggest that seemingly conflicted arrangement may offend the Fifth Amendment's Due Process Clause. See, e.g., Brief for Reason Foundation as Amicus Curiae 18–23. But neither the court of appeals nor respondents took up that argument. See 109 F. 4th, at 768, n. 14. Third, one might ask whether the Administrative Company's leaders qualify as officers of the United States and, if so, whether their role complies with the Appointments Clause, U. S. Const., Art. II, §2, cl. 2. See Brief for Reason Foundation as Amicus Curiae 13–18. But, again, neither the court of appeals nor the parties addressed those questions.
At first glance, this may seem unimpressive, because Justice Gorsuch is just listing issues we flagged which weren't part of the case because the appellate court didn't rule on them. But that was precisely the challenge: our view was that (1) the private nondelegation doctrine doesn't exist so they shouldn't strike down this arrangement on that ground, but (2) the arrangement really is problematic on various other grounds (like Due Process or the Appointments Clause) that unfortunately aren't part of the case. We suggested various ways that the Court could get around this problem, and one of them was to "reject both the public and private nondelegation challenges, note that there are plausible Due Process and Appointments Clause arguments that remain open, and leave those arguments for another day." That's more or less what the Court did (except that noting the problems was left to Justice Gorsuch's dissent), so I declare victory!
One final note: the Supreme Court has been sitting on a cert petition in the horseracing case, presumably pending its decision in Consumers' Research. I also wrote an amicus brief in that case for Reason Foundation and Goldwater Institute, raising many of the same issues as in Consumers' Research. Now we'll have to see what they do with the horseracing case (GVR, maybe?). The horseracing cases (along with a number of other cases where I have an interest) were rescheduled to yesterday's conference, but the orders in those cases haven't come out yet.
Again, the link to the Supreme Court opinion is here, the link to my Notre Dame Law Review article is here, the link to my Reason Foundation amicus brief in Consumers' Research is here, and the link to my Reason/Goldwater horseracing case amicus brief is here.
A Bad Decision on Nationwide Injunctions
Today's Supreme Court ruling barring nationwide injunctions could empower the federal government to engage in large-scale violations of the Constitution. Exactly how bad the consequences will be depends on the extent to which other remedies can be used to forestall them.
Today's 6-3 Supreme Court decision in Trump v. CASA, Inc. barring nationwide injunctions is a grave mistake. It risks allowing the executive to engage in large-scale violations of constitutional rights, potentially in perpetuity. Exactly how bad it is depends on the extent to which other remedies might fill the gap left by the elimination of nationwide injunctions.
Universal injunctions are judicial orders that bar illegal conduct by the defendants with respect to everyone who might be victimized by it, not just the specific parties to the case. The majority opinion authored by Justice Amy Coney Barrett concludes that the "equity" jurisdiction created by the Judiciary Act of 1789 does not include universal injunctions or anything sufficiently analogous to allow them:
The Judiciary Act of 1789 endowed federal courts with jurisdiction over "all suits . . . in equity," §11, 1 Stat. 78, and still today, this statute "is what authorizes the federal
courts to issue equitable remedies," S. Bray & E. Sherwin, Remedies 442 (4th ed. 2024). Though flexible, this equitable authority is not freewheeling. We have held that the
statutory grant encompasses only those sorts of equitable remedies "traditionally accorded by courts of equity" at our country's inception. Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 319 (1999)….We must therefore ask whether universal injunctions are sufficiently "analogous" to the relief issued " 'by the High Court of Chancery in England at the time of the adoption of
the Constitution and the enactment of the original Judiciary Act.' " Grupo Mexicano, 527 U. S., at 318–319….The answer is no: Neither the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding.
Equity offered a mechanism for the Crown "to secure justice where it would not be secured by the ordinary and existing processes of law." G. Adams, The Origin of English Equity, 16 Colum. L. Rev. 87, 91 (1916). This "judicial prerogative of the King" thus extended to "those causes which the ordinary judges were incapable of determining." 1 J. Pomeroy, Equity Jurisprudence §31, p. 27 (1881). Eventually, the Crown instituted the "practice of delegating the cases" that "came before" the judicial prerogative "to the chancellor for his sole decision." Id., §34, at 28. This "became the common mode of dealing with such controversies….Nor did founding-era courts of equity in the United States chart a different course…. If anything, the approach traditionally taken by federal courts cuts against the existence of such a sweeping remedy. Consider Scott v. Donald, where the plaintiff successfully challenged the constitutionality of a law on which state officials had relied to confiscate alcohol that the plaintiff kept for personal use. See 165 U. S. 107, 109 (1897) (statement of case); id., at 111–112 (opinion of the Court). Although the plaintiff sought an injunction barring enforcement of the law against both himself and anyone else "whose rights [were] infringed and threatened" by it, this Court permitted only a narrower decree between "the parties named as plaintiff and defendants in the bill."
The principal dissent by Justice Sotomayor argues at length that universal injunctions are, in fact, deeply rooted in history and closely analogous to Founding-era remedies, such as "bills of peace." I think she may have the better of the debate. But both sides make some good points, and this is a question I must leave to those with greater relevant expertise. In any event, I do not believe the case should turn on the resolution of this hypertechnical issue, but rather should be decided based on much more fundamental principles.
The real heart of the matter here is not the technical debate about historical analogies, but a core principle of constitutional government: the state must not be allowed to engage in large-scale systematic violations of the Constitution, especially when it comes to basic constitutional rights, like the birthright citizenship rights at issue in this case. And courts must be able to impose the remedies necessary to prevent that. That principle is vastly more important than any historical details about the exact nature of remedies available British courts in 1789.
It is particularly ironic that the majority allows British precedents about remedies to undercut this principle. America fought the Revolutionary War to be free of arbitrary government power of the sort often wielded by the British monarchy. And part of the purpose of having a written Constitution (as opposed to Britain's hodgepodge of traditions and potentially revocable statutory rights) is to impose binding constraints on government power that cannot be evaded.
Justice Sotomayor puts it well in this passage from her dissent:
The Court's decision is nothing less than an open invitation for the Government to bypass the Constitution. The Executive Branch can now enforce policies that flout settled law and violate countless individuals' constitutional rights, and the federal courts will be hamstrung to stop its actions fully. Until the day that every affected person manages to become party to a lawsuit and secures for himself injunctive relief, the Government may act lawlessly indefinitely.
In a separate dissent Justice Ketanji Brown Jackson makes some additional relevant points:
It is important to recognize that the Executive's bid to vanquish so-called "universal injunctions" is, at bottom, a request for this Court's permission to engage in unlawful
behavior. When the Government says "do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct," what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution - please allow this. That is some solicitation. With its ruling today, the majority largely grants the Government's wish. But, in my view, if this country is going to persist as a Nation of laws and not men, the Judiciary has no choice but to deny it.Stated simply, what it means to have a system of government that is bounded by law is that everyone is constrained by the law, no exceptions. And for that to actually happen,
courts must have the power to order everyone (including the Executive) to follow the law—full stop. To conclude otherwise is to endorse the creation of a zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes, and where individuals who would otherwise be entitled to the law's protection become subject to the Executive's whims instead.
Later in her opinion she notes that this "zone of lawlessness" is likely to be particularly dangerous for victims of illegal action who are not well-positioned to bring lawsuits:
[T]he law-free zone that results from this Court's near elimination of universal injunctions is not an unfamiliar archetype. Also eerily echoing history's horrors is the fact that today's prerogative zone is unlikely to impact the public in a randomly distributed manner. Those in the good graces of the Executive have nothing to fear; the new prerogative that the Executive has to act unlawfully will not be exercised with respect to them. Those who accede to the Executive's demands, too, will be in the clear. The wealthy and the well connected will have little difficulty securing legal representation, going to court, and obtaining injunctive relief in their own name if the Executive violates their rights.
Consequently, the zone of lawlessness the majority has now authorized will disproportionately impact the poor, the uneducated, and the unpopular—i.e., those who may not have the wherewithal to lawyer up, and will all too often find themselves beholden to the Executive's whims.
I made similar points - much less eloquently - in an earlier post defending nationwide injunctions. As I noted there, the impact may be especially grave in situations where the government's illegal actions harm large numbers of people - in this case hundreds of thousands of children born every year, denied birthright citizenship, and thereby potentially subject to deportation. When the number of victims is that large, it is likely to be difficult or impossible for all of them to bring individual lawsuits.
The majority does leave open three potential paths for plaintiffs in this and other cases to secure broad relief. First, "complete relief" for parties to the case sometimes requires remedies that protect many others, too, especially in situations where policies affect people in interconnected ways. Second, victims can still file class actions. Whether that is possible will vary a lot from case to case, depending whether those harmed by an illegal policy in question can meet various class certification requirements.
Finally, state government plaintiffs can potentially secure broad remedies. As the majority recognizes, that might potentially involve not only a complete ban on the relevant illegal conduct with the plaintiff states' territory, but also a nationwide ban if that is the only way to prevent harm to the plaintiffs:
As the States see it, their harms—financial injuries and the administrative burdens flowing from citizen-dependent benefits programs—cannot be remedied without a blanket ban on the enforcement of the Executive Order…. Children often move across state lines or are born outside their parents' State of residence…. Given the cross-border flow, the States say, a "patchwork injunction" would prove unworkable, because it would require them to track and verify the immigration status of the parents of every child, along with the birth State of every child for whom they provide certain federally funded benefits.
The Court did not, however, rule on how broad a remedy the states are entitled to, or even address the issue of whether the states have standing to sue over this issue, at all. Those questions are - at least for the moment - left to the lower courts to determine.
The same goes for the underlying substantive issue of whether children of undocumented immigrants and those here on temporary visas are entitled to birthright citizenship under the Fourteenth Amendment. The majority did not resolve that issue, in large part because the Trump Administration (probably expecting to lose on it) did not ask them to do so.
Finally, Congress could potentially enact a new law authorizing nationwide injunctions. As I read it, the majority decision does not preclude this. It doesn't hold that nationwide injunctions are unconstitutional, but merely that they are not authorized by current law.
There is more to be said about the 119 pages of majority, concurring, and dissenting opinions. But this post is already very long, so I will stop for now.
In sum, today's decision is badly wrong, and could have terrible consequences. Exactly how terrible depends on the extent to which class actions, remedies for "complete relief" for the parties, and lawsuits brought by states, can fill the void left by the demise of nationwide injunctions.
UPDATE: I have made minor additions to this post.
"See (Sorry)": A New Citation Signal
A nice touch, I thought, in Justice Kagan's dissent in today's Free Speech Coalition v. Paxton:
To account for that concession in its analysis—and yet avoid strict scrutiny, as it wishes—the majority relies on a well-known distinction in First Amendment law between direct and incidental restrictions on speech. See (sorry) E. Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 491–505 (1996).
Then-Professor Kagan's article is quite a legit cite here, by the way; it was an important and heavily cited work even before the author became a Justice.
Porn, Guns, Marriage, and Voting
From today's majority opinion by Justice Thomas in Free Speech Coalition v. Paxton:
Age-verification laws like H. B. 1181 fall within States' authority to shield children from sexually explicit content. The First Amendment leaves undisturbed States' traditional power to prevent minors from accessing speech that is obscene from their perspective. Ginsberg v. New York (1968). That power necessarily includes the power to require proof of age before an individual can access such speech. It follows that no person—adult or child—has a First Amendment right to access speech that is obscene to minors without first submitting proof of age.
The power to verify age is a necessary component of the power to prevent children's access to content that is obscene from their perspective. "No axiom is more clearly established in law, or in reason, than that … wherever a general power to do a thing is given, every particular power necessary for doing it is included." The Federalist No. 44 (J. Madison). Hence, where the Constitution reserves a power to the States, it also reserves "the ordinary and appropriate means" of exercising that power. J. Story, Commentaries on the Constitution of the United States (1833). For example, in the Eighth Amendment context we have explained that, because "capital punishment is constitutional, … 'there must be a constitutional means of carrying it out.'" Similarly, because the First Amendment permits States to prohibit minors from accessing speech that is obscene to them, it likewise permits States to employ the ordinary and appropriate means of enforcing such a prohibition. Requiring proof of age to access that speech is one such means.
Requiring age verification is common when a law draws lines based on age…. Fundamental rights that turn on age are no different. Texas, again like many States, requires proof of age to obtain a handgun license; to register to vote; and to marry. In none of these contexts is the constitutionality of a reasonable, bona fide age-verification requirement disputed. See New York State Rifle & Pistol Assn., Inc. v. Bruen n. 9 (2022) [guns]; Crawford v. Marion County Election Bd. (2008) (opinion of Stevens, J.) [voting]; Zablocki v. Redhail (1978) [marriage].
Why Did Justice Kagan Write So Little This Term?
Other than the Chief, Justice Kagan wrote the fewest opinions.
Now that the Supreme Court has issued its final opinion of the term, we can see which justices wrote the most, and which wrote the least.
Majority opinion assignments were fairly uniform: All of the justices had six or seven opinions for the Court, save for the most junior justice, Justice Jackson, who had five.
The Chief Justice did not write any signed opinions other than his six opinions for the Court, but I assume this was due (in part) to his writing the lion's share of the Court's per curiam opinions (there were six, not including shadow docket orders).
Justice Thomas wrote the most signed opinions -- a whopping twenty-eight -- including eight dissents. Justice Jackson was the most frequent dissenter, however, authoring nine. Justice Kavanaugh only wrote two dissents.
Most interesting to me, however, is that Justice Kagan only wrote ten opinions this term -- six opinions for the Court and four dissents. One possible explanation for this is that she was doing more work behind the scenes, or that she was more active writing memos or even opinions related to shadow docket orders. Justice Barrett had the next fewest number of opinions -- fourteen -- seven of which were opinions for the Court (including Trump v. CASA) and four dissents.
Justice Barrett on Justice Jackson in Trump v. CASA
The two newest justices spar over universal injunctions.
Justice Barrett's opinion for the Court in Trump v. CASA responds forcefully to Justice Jackson's solo dissent, in what is likely the most pointed language we have seen from Justice Barrett since she joined the Court. Here is the relevant portion of her opinion.
The principal dissent focuses on conventional legal terrain, like the Judiciary Act of 1789 and our cases on equity. JUSTICE JACKSON, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever. Waving away attention to the limits on judicial power as a "mind-numbingly technical query," post, at 3 (dissenting opinion), she offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush. In her telling, the fundamental role of courts is to "order everyone (including the Executive) to follow the law—full stop." Post, at 2; see also post, at 10 ("[T]he function of the courts—both in theory and in practice—necessarily includes announcing what the law requires in . . . suits for the benefit of all who are protected by the Constitution, not merely doling out relief to injured private parties"); see also post, at 11, n. 3, 15. And, she warns, if courts lack the power to "require the Executive to adhere to law universally," post, at 15, courts will leave a "gash in the basic tenets of our founding charter that could turn out to be a mortal wound," post, at 12.
Rhetoric aside, JUSTICE JACKSON's position is difficult to pin down. She might be arguing that universal injunctions are appropriate—even required—whenever the defendant is part of the Executive Branch. See, e.g., post, at 3, 10–12, 16–18. If so, her position goes far beyond the mainstream defense of universal injunctions. See, e.g., Frost, 93 N. Y. U. L. Rev., at 1069 ("Nationwide injunctions comewith significant costs and should never be the default remedy in cases challenging federal executive action"). As best we can tell, though, her argument is more extreme still, because its logic does not depend on the entry of a universal injunction: JUSTICE JACKSON appears to believe that the reasoning behind any court order demands "universal adherence," at least where the Executive is concerned. Post, at 2 (dissenting opinion). In her law-declaring vision of the judicial function, a district court's opinion is not just persuasive, but has the legal force of a judgment. But see Haaland v. Brackeen, 599 U. S. 255, 294 (2023) ("It is a federal court's judgment, not its opinion, that remedies an injury"). Once a single district court deems executive conduct unlawful, it has stated what the law requires. And the Executive must conform to that view, ceasing its enforcement of the law against anyone, anywhere. 17
FN17 Think about what this position means. If a judge in the District of Alaska holds that a criminal statute is unconstitutional, can the United States prosecute a defendant under that statute in the District of Maryland? Perhaps JUSTICE JACKSON would instinctively say yes; it is hard to imagine anyone saying no. But why, on JUSTICE JACKSON's logic, does it not violate the rule of law for the Executive to initiate a prosecution elsewhere? See post, at 2 (dissenting opinion). Among its many problems, JUSTICE JACKSON's view is at odds with our system of divided judicial authority. See, e.g., this Court's Rule 10(a) (identifying conflict in the decisions of the courts of appeals as grounds for granting certiorari). It is also in considerable tension with the reality that district court opinions lack precedential force even vis-à-vis other judges in the same judicial district. See Camreta v. Greene, 563 U. S. 692, 709, n. 7 (2011).
We will not dwell on JUSTICE JACKSON's argument, which is at odds with more than two centuries' worth of precedent, not to mention the Constitution itself. We observe only this: JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary.
No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so. See, e.g., Marbury v. Madison, 1 Cranch 137 (1803) (concluding that James Madison had violated the law but holding that the Court lacked jurisdiction to issue a writ of mandamus ordering him to follow it). But see post, at 15 (JACKSON, J., dissenting) ("If courts do not have the authority to require the Executive to adhere to law universally, . . . compliance with law sometimes becomes a matter of Executive prerogative"). Observing the limits on judicial authority—including, as relevant here, the boundaries of the Judiciary Act of 1789—is required by a judge's oath to follow the law.
JUSTICE JACKSON skips over that part. Because analyzing the governing statute involves boring "legalese," post, at 3, she seeks to answer "a far more basic question of enormous practical significance: May a federal court in the United States of America order the Executive to follow the law?" Ibid. In other words, it is unnecessary to consider whether Congress has constrained the Judiciary; what matters is how the Judiciary may constrain the Executive. JUSTICE JACKSON would do well to heed her own admonition: "[E]veryone, from the President on down, is bound by law." Ibid. That goes for judges too.
Congratulations to My Brother Sasha, on Today's Citation by Justice Jackson
From Justice Jackson's concurrence today in FCC v. Consumers' Research:
Respondents in this case have challenged the Federal Communications Commission's universal-service program under both the traditional nondelegation doctrine and the private nondelegation doctrine. The Court properly rejects both challenges today, and I join the Court's opinion in full. I write separately to express my skepticism that the private nondelegation doctrine—which purports to bar the Government from delegating authority to private actors—is a viable and independent doctrine in the first place. Nothing in the text of the Constitution appears to support a per se rule barring private delegations. And recent scholarship highlights a similar lack of support for the doctrine in our history and precedents. See, e.g., A. Volokh, The Myth of the Federal Private Nondelegation Doctrine, 99 Notre Dame L. Rev. 203 (2023).
Nice.
