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.
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.
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.
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 is a bit off topic about today's oral arguments but hopefully interesting to others. Having listened to the first part of the oral arguments, I noted that SG Sauer said that plaintiffs wishing to challenge the Birthright Citizenship EO could bring their cases individually in the 93 other districts across the country if the court rules against nationwide injunctions. That is the opposite of what Trump and his administration have said about due process in deportation cases - that there are too many cases for the government to go through each individual one. They haven't yet presented that argument in court, as far as I know. It is telling that they are perfectly happy to force individuals, many with few means, to slog through the courts while they want the government, with near infinite means, to be able to skip the courts and just ship whoever they want out of the country.
A few things about this litigation that seem inadequately discussed:
1. The AEA contemplates that any national of the target nation is subject to deportation. The president’s proclamation, however, asserted only the right to deport TdA members. But if TdA entry into and operation within the US is tantamount to an invasion by the Venezuelan armed forces, why could not the administration decide—under Judge Haines’ reasoning—that any Venezuelan national is deportable under AEA, without the need to establish TdA membership?
2. Note that both Mexican and Haitian gangs or criminal enterprises have also been designated as foreign terrorist organizations (FTOs) since January (https://www.state.gov/foreign-terrorist-organizations/). There appears no obvious reason why Mexican and Haitian citizens in the US, even with US permanent residence, could not be deported along with Venezuelans under Judge Haines’ reasoning (declining to question the president's assertion of cooperation with the government of Venezuela), should the administration first issue appropriate proclamations.
3. Like Judge Rodriguez, Judge Haines finds that the right to depart voluntarily rather than being removed (contained in 50 USC 3 §21) must be understood in light of §22, and thus does not apply to those chargeable with a “crime against the public safety” and is therefore not available to those accused of being TdA members. I find this deeply unpersuasive. First, §22 considers time at liberty to settle affairs, not the right of a detained person to choose to leave rather than face deportation, possibly to a prison in a third country. Second, it’s not obvious why mere membership in or affiliation with TdA (while certainly not a great thing) necessarily amounts to being chargeable with a crime. Even material aid was not a crime until FTO designation on February 20.
4. JustSecurity credibly argues that deportation directly to a foreign prison is not mere removal, but punishment, which is improper without a trial (https://www.justsecurity.org/110679/deportation-cecot-punishment/). I am grateful for that articulation of this point, but dismayed that it seems to have been broadly ignored elsewhere.
5. Finally, Judge Haines suggests that the 1798 Congress would have included foreign terrorist organizations along with hostile foreign governments had it been able to see into future to our present. But Congress already included provisions in the INA allowing for removal of members of designated FTOs (see 8 USC 1182), so speculation about what Congress would do about the intersection of FTOs and the AEA appears both unnecessary and improper.
On #1: Those are equivalent in practice since almost everyone has tattoos these days.
On #2: Don't give Trump any ideas.
On #4: I suppose the Trump administration would claim that they're merely deporting Venezuelans to El Salvador and that it's president Bukele who's imprisoning them, so the U.S. is not punishing the deportees. That's exactly the kind of tongue-in-cheek legal argument they typically offer.
As to point 1, I think that’s exactly right. If we’re at war with Venezuela (the hostile government within the meaning of the AEA), all Venezuelans not naturalized are alien enemies, they just aren’t subject to removal under the Proclamation. The AEA was not really meant to deal with the hostile invaders themselves (we had the militia for that), but to restrain those presumed to be in sympathy with them.
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.
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.
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.
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.
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.
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.’
What are all the situations in which reporters should be careful not to simply count noted dissents (like, in this case, 2) and jump to the conclusion that the ruling was, like here, 7-2? All per curiams? Orders, too? Anything other than a full signed opinion?
In a nutshell, the only times we can be absolutely sure about the vote count are when (1) the decision comes with a *signed* opinion of the Court (when the Court will tell us); or (2) any other ruling in which the process of elimination tells us (e.g., three public dissents from a denial of certiorari; four public dissents from almost anything else).
Beyond the chaos that would ensue, I am struggling to imagine how the Court could rationalize barring nationwide injunctions. If they were to narrow the circumstances where nationwide injunctions could be (im)permissible, what would be the distinguishing features?
.
For example, differences I see between the AEA habeas cases and the birthright case: 1- birthright citizenship is a substantive designation (one's status under the U.S. Constitution), not subject to suspension or statutory narrowing, whereas habeas corpus is a procedural due process right subject to suspension under narrow circumstances and available to both citizens and noncitizens (like enemy combatants) petitioning for release from unlawful detention; 2- The illegal immigrants detainees in the AEA cases were already embedded in a specific jurisdiction (and it would have been unconventional to strip those courts of their jurisdiction midstream), so the Court merely returned them to their original jurisdiction thereby precluding a nationwide injunction; 3- jurisdiction is integral to citizenship in the constitutional text of Am XIV, Sec 1, not in the habeas suspension clause Art I, Sec 9, par 2; 4- If a case or controversy arose that affected all similarly situated citizens deserving of equal protection of the laws, a nationwide injunction would be the appropriate relief.
(Sec 1 of the XIVth Amendment: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.")
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.
Many thanks for getting this out today.
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.
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.
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 is a bit off topic about today's oral arguments but hopefully interesting to others. Having listened to the first part of the oral arguments, I noted that SG Sauer said that plaintiffs wishing to challenge the Birthright Citizenship EO could bring their cases individually in the 93 other districts across the country if the court rules against nationwide injunctions. That is the opposite of what Trump and his administration have said about due process in deportation cases - that there are too many cases for the government to go through each individual one. They haven't yet presented that argument in court, as far as I know. It is telling that they are perfectly happy to force individuals, many with few means, to slog through the courts while they want the government, with near infinite means, to be able to skip the courts and just ship whoever they want out of the country.
A few things about this litigation that seem inadequately discussed:
1. The AEA contemplates that any national of the target nation is subject to deportation. The president’s proclamation, however, asserted only the right to deport TdA members. But if TdA entry into and operation within the US is tantamount to an invasion by the Venezuelan armed forces, why could not the administration decide—under Judge Haines’ reasoning—that any Venezuelan national is deportable under AEA, without the need to establish TdA membership?
2. Note that both Mexican and Haitian gangs or criminal enterprises have also been designated as foreign terrorist organizations (FTOs) since January (https://www.state.gov/foreign-terrorist-organizations/). There appears no obvious reason why Mexican and Haitian citizens in the US, even with US permanent residence, could not be deported along with Venezuelans under Judge Haines’ reasoning (declining to question the president's assertion of cooperation with the government of Venezuela), should the administration first issue appropriate proclamations.
3. Like Judge Rodriguez, Judge Haines finds that the right to depart voluntarily rather than being removed (contained in 50 USC 3 §21) must be understood in light of §22, and thus does not apply to those chargeable with a “crime against the public safety” and is therefore not available to those accused of being TdA members. I find this deeply unpersuasive. First, §22 considers time at liberty to settle affairs, not the right of a detained person to choose to leave rather than face deportation, possibly to a prison in a third country. Second, it’s not obvious why mere membership in or affiliation with TdA (while certainly not a great thing) necessarily amounts to being chargeable with a crime. Even material aid was not a crime until FTO designation on February 20.
4. JustSecurity credibly argues that deportation directly to a foreign prison is not mere removal, but punishment, which is improper without a trial (https://www.justsecurity.org/110679/deportation-cecot-punishment/). I am grateful for that articulation of this point, but dismayed that it seems to have been broadly ignored elsewhere.
5. Finally, Judge Haines suggests that the 1798 Congress would have included foreign terrorist organizations along with hostile foreign governments had it been able to see into future to our present. But Congress already included provisions in the INA allowing for removal of members of designated FTOs (see 8 USC 1182), so speculation about what Congress would do about the intersection of FTOs and the AEA appears both unnecessary and improper.
Interesting points.
On #1: Those are equivalent in practice since almost everyone has tattoos these days.
On #2: Don't give Trump any ideas.
On #4: I suppose the Trump administration would claim that they're merely deporting Venezuelans to El Salvador and that it's president Bukele who's imprisoning them, so the U.S. is not punishing the deportees. That's exactly the kind of tongue-in-cheek legal argument they typically offer.
As to point 1, I think that’s exactly right. If we’re at war with Venezuela (the hostile government within the meaning of the AEA), all Venezuelans not naturalized are alien enemies, they just aren’t subject to removal under the Proclamation. The AEA was not really meant to deal with the hostile invaders themselves (we had the militia for that), but to restrain those presumed to be in sympathy with them.
I tend to think SCOTUS wants to keep the balls in the air as long as possible so as to put off as long as possible a throw down with the regime.
PS I’m with you on DDC.
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.
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.
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.
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.
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.
Thank you
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.’
What are all the situations in which reporters should be careful not to simply count noted dissents (like, in this case, 2) and jump to the conclusion that the ruling was, like here, 7-2? All per curiams? Orders, too? Anything other than a full signed opinion?
I've written about this at length: https://www.stevevladeck.com/i/85363664/opinions-of-the-court
In a nutshell, the only times we can be absolutely sure about the vote count are when (1) the decision comes with a *signed* opinion of the Court (when the Court will tell us); or (2) any other ruling in which the process of elimination tells us (e.g., three public dissents from a denial of certiorari; four public dissents from almost anything else).
what a mess! thank you for your clear explanations.
Beyond the chaos that would ensue, I am struggling to imagine how the Court could rationalize barring nationwide injunctions. If they were to narrow the circumstances where nationwide injunctions could be (im)permissible, what would be the distinguishing features?
.
For example, differences I see between the AEA habeas cases and the birthright case: 1- birthright citizenship is a substantive designation (one's status under the U.S. Constitution), not subject to suspension or statutory narrowing, whereas habeas corpus is a procedural due process right subject to suspension under narrow circumstances and available to both citizens and noncitizens (like enemy combatants) petitioning for release from unlawful detention; 2- The illegal immigrants detainees in the AEA cases were already embedded in a specific jurisdiction (and it would have been unconventional to strip those courts of their jurisdiction midstream), so the Court merely returned them to their original jurisdiction thereby precluding a nationwide injunction; 3- jurisdiction is integral to citizenship in the constitutional text of Am XIV, Sec 1, not in the habeas suspension clause Art I, Sec 9, par 2; 4- If a case or controversy arose that affected all similarly situated citizens deserving of equal protection of the laws, a nationwide injunction would be the appropriate relief.
(Sec 1 of the XIVth Amendment: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.")