Ultimately, the "nationwide injunction" arguments were about the birthright citizenship order
Although justices might be skeptical of nationwide injunctions, the problems with Trump's birthright citizenship executive order loomed larger at SCOTUS on Thursday.
On Thursday, the U.S. Supreme Court sought to address a question the justices have wrestled with at different times in different contexts in recent years: Frustrations with nationwide, or “universal” injunctions.
And yet, after more than two hours of arguments over the nationwide scope of injunctions blocking implementation and enforcement of President Donald Trump’s executive order ending birthright citizenship, the court seemed more aligned on the unconstitutionality of Trump’s order — and in agreement with all of the lower courts to consider the question — than on any solution about how to deal with nationwide injunctions.
“Let’s just assume you’re dead wrong“ about the order’s constitutionality, Justice Elena Kagan told Solicitor General John Sauer. “Does every single person that is affected by this EO have to bring their own suit? Are there alternatives? How long does it take?“
The question of when a nationwide injunction is appropriate or merited is a legitimate one, and I think a healthy majority of the court would be comfortable — if not eager — to set at least more clear standards on when such injunctions are permissible. Even Kagan acknowledged such “abuses,” but resolving that question in Thursday’s case appeared to be unlikely — because, on two fronts, the Trump administration is trying to go too far.
First, the nationwide injunctions being challenged by the Trump administration here are the injunctions blocking something that the Supreme Court has previously said is unconstitutional. No court has sided with the Trump administration on the birthright citizenship order, at least in large part because of that. As Justice Sonia Sotomayor put it, she sees at least four precedents of the Supreme Court that Trump’s executive order violates.
Second, the Trump administration doesn’t only argue that nationwide injunctions should be scaled back or limited. The reply brief filed by Sauer, who argued Trump’s immunity case for him last year before being nominated to be solicitor general, argued that such orders are not only unadvisable but, rather, that they are unconstitutional. “These injunctions exceed the district courts’ authority under Article III and gravely encroach on the President’s executive power under Article II,“ he wrote.
As the lawyers for the states and organizations that have sued pushed back, there are multiple instances throughout American law that show that can’t be true.
The difficulties the court faced on Thursday were, partially, of their own making — due to the ways in which the court’s conservative majority, including in the immunity decision, have encouraged Trump’s overreaching and outright illegal behaviors and, almost more importantly, because the justices knew the Justice Department’s arguments here when they decided to set this shadow-docket request for oral argument.
In addition to being a bad case, Sauer is a less-than-stellar advocate and this argument exemplified where he falls short of past solicitors general, even from Trump’s first administration.
To give the most stark example, in a case where the Justice Department is arguing that nationwide injunctions are unconstitutional, Sauer also insisted that the Justice Department maintained the right to ignore an appeals court opinion — not the judgment as applied to the plaintiffs in a case, but the opinion as it would apply to anyone else within the circuit. When Sauer claimed this was longstanding Justice Department practice, it caught Justice Amy Coney Barrett off guard. “Really?” she asked him, incredulously. A decision from the Supreme Court would be different, he acknowledged.
Additionally, while Sauer’s main alternative to nationwide injunctions was class action litigation — under Rule 23 of the Federal Rules of Civil Procedure — Sauer told Kagan that the Justice Department “might dispute“ class certification in this very case. As to that being a sufficient alternative, then, Kagan responded, “So let's put Rule 23 aside, because I’ve got to tell you that does not fill me with great confidence.“
Even Justice Sam Alito was asking what “practical problems” would be solved if all of this “universal injunctions” debate simply moved over to “class certification” litigation.
“What is the point of this argument about universal injunctions?” he asked, prompting Sauer, again, to go big and assert that “universal injunctions exceed traditional principles of Article III“ — in other words, they are unconstitutional.
And while Justice Brett Kavanaugh seemed to go along with that quite a ways — essentially saying that, if those are the rules, “we care about technicalities” — even he questioned the practical questions about implementing this particular executive order. When Sauer talked about new parents needing to provide “documentation,” Kavanaugh shot back, “For all the newborns? Is that how it's going to work?“
Only Justice Ketanji Brown Jackson, however, seemed wholeheartedly to push back against any limits.
“I thought Article III was really about limiting the Court's power with respect to jurisdiction, that we say the Court has to determine whether or not there's subject matter jurisdiction over the issue and whether or not there's personal jurisdiction over the defendant, and once you have those things, the Court can evaluate the merits of the legal issue and issue, especially in equity, appropriate relief,” she told Sauer, adding only that “prudential concerns” lead to limitations on relief.1
Justice Neil Gorsuch, meanwhile, pushed back with another alternative — that would avoid the Article III question by holding that Congress could potentially authorize such a remedy but had not and, echoing earlier questions from Justice Clarence Thomas, that such broad relief would not be allowed absent congressional authorization if there were no “historical analogues” for such relief. But, again, it was not clear there would be five votes for such a ruling.
What’s more — and although it seemed to get lost at times during the arguments — both the states and the organizations before the court on Thursday have particularly strong arguments for why the injunctions in their cases are not even the type of “universal injunctions” that are generally criticized.
As New Jersey Solicitor General Jeremy Feigenbaum explained, “[I]f the nationwide injunction is actually about meeting our harm and the alternatives are not legally or practically workable, then it isn't even a universal injunction, as I know this Court's separate writings ha[ve] used the term, because it's about meeting our own Article III injury.“ As he explained, to give just one practical problem, there are “6,000 babies born to New Jersey parents out of state every year.“ What do you do with an injunction that covers New Jersey but not Pennsylvania?
As to the organizations suing, CASA and Asylum Seeker Advocacy Project (ASAP), Kelsi Corkran, the Supreme Court director at the Institute for Constitutional Advocacy and Protection at Georgetown Law, noted that the Justice Department “has offered no argument“ as to how an injunction as to all CASA and ASAP members across the country would be administered. “So I think that's probably the end of the road,“ she said, on that front.
All in all, it was difficult to see where the court gets to five votes — the needed majority — to fashion some grand new principle for dealing with nationwide injunctions with this case.
If anything, Sauer’s missteps (or, worse still, depending on why he answered how he answered, necessary bad steps) could lead the court to sidestepping the nationwide injunction issue altogether by definitively ruling — likely through additional briefing and argument — that Trump’s executive order is simply unconstitutional under past precedent.
For example, even as he seemed open to limiting nationwide injunctions, Chief Justice John Roberts kept insisting that the Supreme Court can resolve matters in this case quickly.2
Noting that “this Court can issue a decision and it will bind everything else,” Roberts asked Sauer, “Is there any reason in this particular litigation that we would be unable to act expeditiously?“
Sauer replied, “Absolutely not, Mr. Chief Justice.”
As Kagan put it, though, there is a real cost to such “percolation” — as Sauer kept insisting was necessary here. In a situation like this where, as Kagan said, “nobody’s going to lose in this case” challenging the executive order because the order is so clearly unconstitutional, “the ones who can't afford to go to court, they're the ones who are going to lose“ if you get rid of the possibility of nationwide injunctions altogether.
A final point — and one that could further hurt the Justice Department’s efforts in this case and before the Supreme Court more broadly in this administration.
This is some pretty transparent gaming of the system by the Trump administration — in a case where the Justice Department is criticizing the use of universal injunctions for how they can be used to game the system. As Kagan noted, “I notice that you didn't take the substantive question to us. You only took the nationwide injunction question to us.”
And though Sauer insisted that “percolation” is needed and that DOJ had “deliberately not presented the merits to this Court” because they want the nationwide injunction issue addressed, the bottom line is that, as Kagan noted, “the government is losing constantly“ on this order when courts do look toward the merits. In light of that, the administration could just continue not asking for Supreme Court review on the merits. “If I were in your shoes, there is no way I'd approach the Supreme Court with this case,“ she stated.
If Sauer gets his way, Kagan showed how the Trump administration could take clearly unconstitutional action and then seek to avert the very Supreme Court ruling Sauer argued would be the only definitive way to protect all people against that clearly unconstitutional action.
This paragraph and the one preceding it were added after initial publication, at 6:25 p.m.
Excellent. Especially since I agree.
I have to say, hearing Sauer argue on behalf of the United States is painful, not only because of the quality of his argument, but also because the Court bought his cockamamie arguments in the Immunity case that brought us here.
I think at least part of the reason they keep pushing outrageous and unprecedented arguments is that sometimes this court bites. Looked at from Tr*mp's psychology - which they've taken care this time to replicate throughout the administration - they think the court are suckers. The other part is that their experience in the political realm has shown them that if they stick to the outrageous and unprecedented, gravity can pull the middle of the debate quite far in their direction, so they apply that approach to every other realm. No one is really countering this very effectively.