A series of outwardly inconsistent developments in different courts in the Alien Enemy Act cases underscores the difficulties that litigants challenging Trump policies face without nationwide relief.
Just to put illegal immigration in some historical context:
“Those who enter our country illegally, and those who employ them, disrespect the rule of law. And because we live in an age where terrorists are challenging our borders, we simply cannot allow people to pour into the United States undetected, undocumented, and unchecked. Americans are right to demand better border security and better enforcement of the immigration laws" —President Obama
Obama's ICE went on a deportation rampage during his presidency because:
This is a real headline: Venezuela's Violent Deaths Fall to 22-Year Low on Migration: Violent deaths dropped following years of massive migration as both criminals and victims fled: https://archive.is/JOaY9
Injunctions nationwide? We have to do this district by district? Why is the interpretation of the law so person specific? Doesn't there have to be invasion present? The law is cumbersome and somewhat archaic. But it's all we have right now short of violence. And we don't want that. So many questions. So many people having due process denied and completely ignored
This ends with SCOTUS using procedural and jurisdictional obfuscations, and then something similar to a Trump v. Hawaii style of judicial review (IOW courts can’t question a presidential finding that TdA is a quasi-state actor engaging in an “invasion”). Make it cumbersome to challenge procedurally. Then when it gets to SCOTUS, ‘sorry we can’t question even obviously fabricated and incorrect presidential findings of facts.’
Whatever the AEA might provide, wouldn't any interpretation that does not provide for reasonable notice, opportunity to be heard and judicial review violate the Due Process Clause? Trump appears to be denying this.
I have a hard time seeing why a review of Trump's interpretation would have to be made on a district by district basis.
Troubling to read reporting that suggests significant majority of the detained are not TdA, that the administration repeatedly lies about them, calling them criminals and terrorists. How does the cruelty of sending people to a torture prison factor into the Supreme Court’s ruling?
Are you familiar with the history of class based habeas? Asserted for what may have been the first time for LDF by cooperating Florida lawyer Tobias Simon with support from Anthony Amsterdam and our team after Newly elected governor Claude Kirk threatened to resume executions. In 1967 US District Judge William McRae Jr, granted a stay on the class basis ultimately leading to an investigation into the status of almost all death row inmates. A CA judge followed suit. See M. Meltsner, Cruel and Unusual 126 et seq (1973)
What I don't understand is how an academic/ ivory-tower approach (don't like it? Impeach him) is being applied to what to me looks like a hostage situation.
Not sure where you got that impression, but I thought Prof. Vladeck made it clear that this situation can only be resolved via the courts. The point here was simply to explain which courts have already tackled the AEA issue, and how they've fared thus far. (While it wasn't specifically mentioned, circuit splits are a key criterion for the Supreme Court granting cert on a topic of dispute.)
There's also nothing here suggesting impeachment, nor am I seeing why there would be. Any against Trump would obviously be doomed, and that's also the case for any federal judge that may "displease" Trump in some way. I truly don't see how anyone could get past the 67-minimum senators needed for any impeachment, and it's the same for both politicians as well as judges.
There is nothing academic or ivory tower about the government’s wholesale arrest, imprisonment and deportation of hounds of people without notice or hearing to jails in foreign countries under color of a 1798 statute that is very likely to be facially unconstitutional or at best to apply only in case the US is invade by a foreign power.
I understand the concern about one judge in one district being able to block something, if only temporarily, but it seems to me that, when the matter affects the fundamental rights of all within the US, then the ruling ought to be effective nationwide.
This is an impressive piece of legal journalism! I wish the entire news media combined had one-tenth the reportorial depth of one Georgetown law professor.
The Roberts Court has put front and center the urgent need for judicial reform. Some points are obvious, such as the need to make impossible abuses such as the juridical inconsistency of Dobbs, Anderson, and Bush v. Gore, which cases inexplicably disregarded many decades or, in the case of BvG, centuries of settled law, while Plessy remained law even though the "equal" part was never enforced.
There's a very simple reason the Alien Enemies Act immigration cases should have been consolidated, and that is that plaintiffs have plainly not enjoyed equal protection. It seems to me that this could have been avoided by allowing nationwide injunctions under the requirement that they can be appealed in any district. That would do away with the shenanigans in the 5th Circuit (though I suppose it might open up other shenanigans, such as the 5th overruling environmental rulings in the 9th).
One other reform that is obviously needed is to speed up the court system, especially for wealthy defendants. The fact that Trump was able to avoid jail entirely through delay, while many indigent defendants are locked away (and many executed) with barely any judicial review is not consistent with a system of equal justice before the law. This deep hypocrisy in the system, where money buys a a far more lenient standard of justice, just has to end.
Not quite the place for this thank you but I am very grateful to Leah Litman and you for discussing why on earth did the Supreme Court select the birthright citizenship cases to determine the appropriateness of universal injunctions. This has puzzled me greatly since the oral argument was announced.
There is such a mismatch between the factual circumstances and the propriety of the injunctions that this seemed to me to be a very poor selection. This seemed especially true as you two pointed out that the more vexing question is what should happen when the injunction stays enforcement of a regulation. Baffling why this case and not the others on the shadow docket that frame the issue in a better manner.
Steve: As a former DOJ litigator (for 33 years, since retired), I think you are mistaken about all the benefits of nationwide injunctions. This practice simply leads to paralysis by judicial fiat. You can find a politiized DCT judge (on the left and the right) for just about any proposition. The SG is right, the government has to to run the table to implement any policy. That's just crazy.
I addressed this in some detail in my testimony. First, I agree that the standards for nationwide injunctions ought to be higher; that would avoid some of these concerns. Second, I've been one of the loudest advocates for reforms to limit judge-shopping. It seems like it would be a mistake to categorically foreclose nationwide relief (and thus lose the benefits) when there are narrower ways to mitigate the costs.
Thanks for the link. Interesting testimony. Judge shopping is a bane, no doubt, but I don't see any realistic way to stop it. You suggest that a different standard of review may appropriate, but do not actually suggest a standard. And this gets into the problem of APA cases ("set aaside" final agency action) and non APA cases, such as in cases where the defendant is the President, who is not an agency under the APA. I agree that a higher standard is appropriate at the very minimum. What standard do you think should be applied? And how would you disguishable non APA cases from APA cases. And there are problems nicely laid by the SG's filings on allowing judges to adjudicate the rights of third parties not before the court. Gorsuch is pretty much dead one, IMHO.
Judges routinely adjudicate the rights of parties not before the court. That's true in class actions; facial challenges; and it's the necessary consequence of vertical stare decisis (per Kavanaugh's concurrence in Labrador). If it's appropriate for a single district judge to certify a nationwide class and enjoin a federal policy as applied to the class, I don't see how arguments against nationwide injunctions are about power, rather than prudence.
As for me, I'd want the plaintiffs to have to demonstrate why plaintiff-specific relief would either be inadequate to provide complete relief or would be unworkable in practice. Birthright citizenship is a good example of the latter.
As for stopping judge-shopping, there are lots of ways to stop it. Three-judge district courts; a right on the part of the government to transfer cases to D.D.C.; random assignment from a nationwide pool; etc. But kneecapping nationwide injunctions is the wrong solution to the wrong problem--a point reinforced, perhaps, by the fact that Justice Gorsuch himself has voted *for* universal relief at least 11 times since 2021.
Class actions are fine, but Rule 23 puts limits on them. More on point, class members, once a class is certified, *are* parties and are bound by the result. Not true for nation wide injunctions. Party specific relief usually is fully adequate for that party. It is only inadequate if the desire is to reach beyond that party to non-parties to stop a policy applicable to others. The arugment is circular. The whole point here *is* about power, viz., the power of a single judge to rule for the entire nation. You apparently have much more faith in judges to get it right than do I. Or I have been doing this too long and gotten cynical.
It's not that I have faith in judges to get it right. It's that the system provides far more protections for judges issuing nationwide relief and getting it wrong (emergency relief and appellate review) than it provides for all of us in a world in which nationwide policies can be challenged only one group of plaintiffs at a time. A district judge wrongly entering a nationwide injunction is a temporary inconvenience. A district judge who *can't* issue nationwide relief resulting in the wrongful deprivation of countless peoples' rights seems far worse.
I'm curious what you'd propose as an alternative, considering the extent to which Trump's team is so brazenly violating the law. While you have a reasonable point in terms of a single district judge having the power to dictate nationwide policy – certainly if they happen to be unusually partisan, on either side – the simple fact seems to be that, at least with a toxic & possibly addled sadist running the country, it's sometimes the only realistic way to prevent a severe injustice.
I think Vladeck's key point here is that ALL of this recent litigation over the AEA could've been avoided had the Supreme Court not vacated Chief Judge Boasberg's TROs. As he notes herein, and in an earlier piece he wrote, the ruling was disturbingly myopic in multiple ways, all of which were borne out. The Court only created *more* work for itself – not to mention our already chronically overburdened federal legal system as a whole – as a result, enough to raise the question of whether any of the justices have yet acknowledged (even to themselves) the error of their earlier misread, and if they plan to alter course once it comes up for review on the merits. (The misread is that a piecemeal approach simply won't work with Trump. It only helps him further injustice, if only because fascist activists move more swiftly than the legal system.)
Also, as a former DOJ litigator, you're obviously well-aware that our tripartite system keeps the judicial & executive branches separate, as well as independent, by necessity. Judges shouldn't be messing with politics in the first place, and the executive branch also shouldn't be messing with judicial matters. How, then, should judges respond to the DOJ when it's pursuing so many unambiguously pretextual, wholly political cases – many of which have involved extrajudicial renditioning of falsely accused gang members?
Looking the other way isn't a viable option, at least morally, IMO.
Finally, in terms of "paralysis by judicial fiat": as Vladeck noted, we have 94 districts, but the EOs issued in a mere seven of them have already created chaos. The chaos agent in each instance is definitely *not* on the judicial side, and chaos is what he *wants*. Even if you don't support nationwide injunctions in general, this is an arguable variation of an exigent-circumstances exception I'd classify as entirely reasonable.
See my conversation with Steve. My point is simple: the judiciary does not have special powers just because "a toxic & possibly addled sadist" is running the country. The other side made the same attempt and they were just as wrong. Once these Constitutional norms are broken in one direction, then they are broken, period. I care about the administration of justice and the separation of powers much more than I do about a particular policy or case, no matter how egregious the issue presented. Separation of powers protects all our rights. See, e.g., Bond v. United States, 564 U.S. 211 (2011). The constitutionality of those polices and Presidential actions can be addressed within the bounds of existing norms without bestowing God-like powers on district court judges. There is no shortage of advocates bringing these cases.
Thank you for this summary… it’s like crossing the rapids one Boulder at a time… but it does seem to put it in order! Ahh, if only…. If wishes were horses, beggars would be riding… repeated so often by my grandma
This post reflects considerable confusion about what’s really at stake in the nationwide/universal injunction debate. Despite the “nationwide” label that’s sometimes used to describe the challenged injunctions, there’s ordinarily nothing problematic about an injunction that binds the defendant’s conduct wherever it may occur. That’s how injunctions usually work. The distinctive — and arguably problematic — aspect of universal injunctions is that they prohibit enforcement of the challenged policy against non-parties (and without obtaining class certification). So a ruling prohibiting universal injunctions would mean that plaintiffs will need to have a class certified in order to extend relief beyond the named parties. But there’s no reason to think that it would require district-by-district litigation.
The AEA litigation is a special case. The geographic issues that have arisen there are the product of the habeas context, and its immediate-custodian rule. I’m sympathetic to the argument that this litigation shouldn’t have been channeled into habeas, especially for the notice-based challenges to summary removal. But that’s the real issue there — habeas vs. APA review — not the proprietary of universal relief.
Thoughtful post. It is true that a defendant found to be engaging in unlawful conduct will be enjoined to stop it, and not just to stop the unlawful conduct w/r/t the P. E.g., if an employer uses a discriminatory hiring test, it is enjoined to stop using it, not just to stop discriminating against the P.
The problem with using class certification as a vehicle for obtaining broader relief is that courts are typically (properly?) reluctant to certify an issue class where substantial remedial work would be necessary after disposing of the common questions. The class device is a labor-saving tool, and if what remains approximates the labor that would be required without the class, courts typically deny that relief.
Just to put illegal immigration in some historical context:
“Those who enter our country illegally, and those who employ them, disrespect the rule of law. And because we live in an age where terrorists are challenging our borders, we simply cannot allow people to pour into the United States undetected, undocumented, and unchecked. Americans are right to demand better border security and better enforcement of the immigration laws" —President Obama
Obama's ICE went on a deportation rampage during his presidency because:
This is a real headline: Venezuela's Violent Deaths Fall to 22-Year Low on Migration: Violent deaths dropped following years of massive migration as both criminals and victims fled: https://archive.is/JOaY9
Injunctions nationwide? We have to do this district by district? Why is the interpretation of the law so person specific? Doesn't there have to be invasion present? The law is cumbersome and somewhat archaic. But it's all we have right now short of violence. And we don't want that. So many questions. So many people having due process denied and completely ignored
This ends with SCOTUS using procedural and jurisdictional obfuscations, and then something similar to a Trump v. Hawaii style of judicial review (IOW courts can’t question a presidential finding that TdA is a quasi-state actor engaging in an “invasion”). Make it cumbersome to challenge procedurally. Then when it gets to SCOTUS, ‘sorry we can’t question even obviously fabricated and incorrect presidential findings of facts.’
Whew. It's a LOT, but I'm going to say thank you, this is a considerable help in my understanding of the court's decisions and processes.
Whatever the AEA might provide, wouldn't any interpretation that does not provide for reasonable notice, opportunity to be heard and judicial review violate the Due Process Clause? Trump appears to be denying this.
I have a hard time seeing why a review of Trump's interpretation would have to be made on a district by district basis.
Troubling to read reporting that suggests significant majority of the detained are not TdA, that the administration repeatedly lies about them, calling them criminals and terrorists. How does the cruelty of sending people to a torture prison factor into the Supreme Court’s ruling?
Are you familiar with the history of class based habeas? Asserted for what may have been the first time for LDF by cooperating Florida lawyer Tobias Simon with support from Anthony Amsterdam and our team after Newly elected governor Claude Kirk threatened to resume executions. In 1967 US District Judge William McRae Jr, granted a stay on the class basis ultimately leading to an investigation into the status of almost all death row inmates. A CA judge followed suit. See M. Meltsner, Cruel and Unusual 126 et seq (1973)
Oh my God. No. I was wasn't acquainted with it
Thank you
Many thanks for getting this out today.
What I don't understand is how an academic/ ivory-tower approach (don't like it? Impeach him) is being applied to what to me looks like a hostage situation.
Not sure where you got that impression, but I thought Prof. Vladeck made it clear that this situation can only be resolved via the courts. The point here was simply to explain which courts have already tackled the AEA issue, and how they've fared thus far. (While it wasn't specifically mentioned, circuit splits are a key criterion for the Supreme Court granting cert on a topic of dispute.)
There's also nothing here suggesting impeachment, nor am I seeing why there would be. Any against Trump would obviously be doomed, and that's also the case for any federal judge that may "displease" Trump in some way. I truly don't see how anyone could get past the 67-minimum senators needed for any impeachment, and it's the same for both politicians as well as judges.
There is nothing academic or ivory tower about the government’s wholesale arrest, imprisonment and deportation of hounds of people without notice or hearing to jails in foreign countries under color of a 1798 statute that is very likely to be facially unconstitutional or at best to apply only in case the US is invade by a foreign power.
I understand the concern about one judge in one district being able to block something, if only temporarily, but it seems to me that, when the matter affects the fundamental rights of all within the US, then the ruling ought to be effective nationwide.
This is an impressive piece of legal journalism! I wish the entire news media combined had one-tenth the reportorial depth of one Georgetown law professor.
The Roberts Court has put front and center the urgent need for judicial reform. Some points are obvious, such as the need to make impossible abuses such as the juridical inconsistency of Dobbs, Anderson, and Bush v. Gore, which cases inexplicably disregarded many decades or, in the case of BvG, centuries of settled law, while Plessy remained law even though the "equal" part was never enforced.
There's a very simple reason the Alien Enemies Act immigration cases should have been consolidated, and that is that plaintiffs have plainly not enjoyed equal protection. It seems to me that this could have been avoided by allowing nationwide injunctions under the requirement that they can be appealed in any district. That would do away with the shenanigans in the 5th Circuit (though I suppose it might open up other shenanigans, such as the 5th overruling environmental rulings in the 9th).
One other reform that is obviously needed is to speed up the court system, especially for wealthy defendants. The fact that Trump was able to avoid jail entirely through delay, while many indigent defendants are locked away (and many executed) with barely any judicial review is not consistent with a system of equal justice before the law. This deep hypocrisy in the system, where money buys a a far more lenient standard of justice, just has to end.
Not quite the place for this thank you but I am very grateful to Leah Litman and you for discussing why on earth did the Supreme Court select the birthright citizenship cases to determine the appropriateness of universal injunctions. This has puzzled me greatly since the oral argument was announced.
There is such a mismatch between the factual circumstances and the propriety of the injunctions that this seemed to me to be a very poor selection. This seemed especially true as you two pointed out that the more vexing question is what should happen when the injunction stays enforcement of a regulation. Baffling why this case and not the others on the shadow docket that frame the issue in a better manner.
Steve: As a former DOJ litigator (for 33 years, since retired), I think you are mistaken about all the benefits of nationwide injunctions. This practice simply leads to paralysis by judicial fiat. You can find a politiized DCT judge (on the left and the right) for just about any proposition. The SG is right, the government has to to run the table to implement any policy. That's just crazy.
I addressed this in some detail in my testimony. First, I agree that the standards for nationwide injunctions ought to be higher; that would avoid some of these concerns. Second, I've been one of the loudest advocates for reforms to limit judge-shopping. It seems like it would be a mistake to categorically foreclose nationwide relief (and thus lose the benefits) when there are narrower ways to mitigate the costs.
(Sorry; testimony is here: https://www.judiciary.senate.gov/imo/media/doc/2025-04-02_testimony_vladeck.pdf)
Thanks for the link. Interesting testimony. Judge shopping is a bane, no doubt, but I don't see any realistic way to stop it. You suggest that a different standard of review may appropriate, but do not actually suggest a standard. And this gets into the problem of APA cases ("set aaside" final agency action) and non APA cases, such as in cases where the defendant is the President, who is not an agency under the APA. I agree that a higher standard is appropriate at the very minimum. What standard do you think should be applied? And how would you disguishable non APA cases from APA cases. And there are problems nicely laid by the SG's filings on allowing judges to adjudicate the rights of third parties not before the court. Gorsuch is pretty much dead one, IMHO.
Judges routinely adjudicate the rights of parties not before the court. That's true in class actions; facial challenges; and it's the necessary consequence of vertical stare decisis (per Kavanaugh's concurrence in Labrador). If it's appropriate for a single district judge to certify a nationwide class and enjoin a federal policy as applied to the class, I don't see how arguments against nationwide injunctions are about power, rather than prudence.
As for me, I'd want the plaintiffs to have to demonstrate why plaintiff-specific relief would either be inadequate to provide complete relief or would be unworkable in practice. Birthright citizenship is a good example of the latter.
As for stopping judge-shopping, there are lots of ways to stop it. Three-judge district courts; a right on the part of the government to transfer cases to D.D.C.; random assignment from a nationwide pool; etc. But kneecapping nationwide injunctions is the wrong solution to the wrong problem--a point reinforced, perhaps, by the fact that Justice Gorsuch himself has voted *for* universal relief at least 11 times since 2021.
Class actions are fine, but Rule 23 puts limits on them. More on point, class members, once a class is certified, *are* parties and are bound by the result. Not true for nation wide injunctions. Party specific relief usually is fully adequate for that party. It is only inadequate if the desire is to reach beyond that party to non-parties to stop a policy applicable to others. The arugment is circular. The whole point here *is* about power, viz., the power of a single judge to rule for the entire nation. You apparently have much more faith in judges to get it right than do I. Or I have been doing this too long and gotten cynical.
It's not that I have faith in judges to get it right. It's that the system provides far more protections for judges issuing nationwide relief and getting it wrong (emergency relief and appellate review) than it provides for all of us in a world in which nationwide policies can be challenged only one group of plaintiffs at a time. A district judge wrongly entering a nationwide injunction is a temporary inconvenience. A district judge who *can't* issue nationwide relief resulting in the wrongful deprivation of countless peoples' rights seems far worse.
I'm curious what you'd propose as an alternative, considering the extent to which Trump's team is so brazenly violating the law. While you have a reasonable point in terms of a single district judge having the power to dictate nationwide policy – certainly if they happen to be unusually partisan, on either side – the simple fact seems to be that, at least with a toxic & possibly addled sadist running the country, it's sometimes the only realistic way to prevent a severe injustice.
I think Vladeck's key point here is that ALL of this recent litigation over the AEA could've been avoided had the Supreme Court not vacated Chief Judge Boasberg's TROs. As he notes herein, and in an earlier piece he wrote, the ruling was disturbingly myopic in multiple ways, all of which were borne out. The Court only created *more* work for itself – not to mention our already chronically overburdened federal legal system as a whole – as a result, enough to raise the question of whether any of the justices have yet acknowledged (even to themselves) the error of their earlier misread, and if they plan to alter course once it comes up for review on the merits. (The misread is that a piecemeal approach simply won't work with Trump. It only helps him further injustice, if only because fascist activists move more swiftly than the legal system.)
Also, as a former DOJ litigator, you're obviously well-aware that our tripartite system keeps the judicial & executive branches separate, as well as independent, by necessity. Judges shouldn't be messing with politics in the first place, and the executive branch also shouldn't be messing with judicial matters. How, then, should judges respond to the DOJ when it's pursuing so many unambiguously pretextual, wholly political cases – many of which have involved extrajudicial renditioning of falsely accused gang members?
Looking the other way isn't a viable option, at least morally, IMO.
Finally, in terms of "paralysis by judicial fiat": as Vladeck noted, we have 94 districts, but the EOs issued in a mere seven of them have already created chaos. The chaos agent in each instance is definitely *not* on the judicial side, and chaos is what he *wants*. Even if you don't support nationwide injunctions in general, this is an arguable variation of an exigent-circumstances exception I'd classify as entirely reasonable.
See my conversation with Steve. My point is simple: the judiciary does not have special powers just because "a toxic & possibly addled sadist" is running the country. The other side made the same attempt and they were just as wrong. Once these Constitutional norms are broken in one direction, then they are broken, period. I care about the administration of justice and the separation of powers much more than I do about a particular policy or case, no matter how egregious the issue presented. Separation of powers protects all our rights. See, e.g., Bond v. United States, 564 U.S. 211 (2011). The constitutionality of those polices and Presidential actions can be addressed within the bounds of existing norms without bestowing God-like powers on district court judges. There is no shortage of advocates bringing these cases.
Thank you for this summary… it’s like crossing the rapids one Boulder at a time… but it does seem to put it in order! Ahh, if only…. If wishes were horses, beggars would be riding… repeated so often by my grandma
This post reflects considerable confusion about what’s really at stake in the nationwide/universal injunction debate. Despite the “nationwide” label that’s sometimes used to describe the challenged injunctions, there’s ordinarily nothing problematic about an injunction that binds the defendant’s conduct wherever it may occur. That’s how injunctions usually work. The distinctive — and arguably problematic — aspect of universal injunctions is that they prohibit enforcement of the challenged policy against non-parties (and without obtaining class certification). So a ruling prohibiting universal injunctions would mean that plaintiffs will need to have a class certified in order to extend relief beyond the named parties. But there’s no reason to think that it would require district-by-district litigation.
The AEA litigation is a special case. The geographic issues that have arisen there are the product of the habeas context, and its immediate-custodian rule. I’m sympathetic to the argument that this litigation shouldn’t have been channeled into habeas, especially for the notice-based challenges to summary removal. But that’s the real issue there — habeas vs. APA review — not the proprietary of universal relief.
Thoughtful post. It is true that a defendant found to be engaging in unlawful conduct will be enjoined to stop it, and not just to stop the unlawful conduct w/r/t the P. E.g., if an employer uses a discriminatory hiring test, it is enjoined to stop using it, not just to stop discriminating against the P.
The problem with using class certification as a vehicle for obtaining broader relief is that courts are typically (properly?) reluctant to certify an issue class where substantial remedial work would be necessary after disposing of the common questions. The class device is a labor-saving tool, and if what remains approximates the labor that would be required without the class, courts typically deny that relief.