Thursday's birthright citizenship oral argument hits at least somewhat different after and in light of Friday's Alien Enemies Act ruling—in which the Court ... provided relief to non-parties.
Given your argument that Article III itself doesn’t prevent universal injunctions, do you think we might see some very narrow ruling in these cases? I’ve been thinking that even if universal injunctions should be rare, there are various ways they could be applied to the birthright citizenship cases without reaching a decision on universal injunctions more generally - for example, where the lower court is just saying that SCOTUS already decided this issue (i.e. in Wong Kim Ark) and allowing the government’s conduct would enable a constitutional violation, that seems like the strongest possible case for a universal injunction, and one that wouldn’t have applied to, say, Kacsmaryk’s mifepristone ruling. Or am I missing something here?
I don't think you're missing anything. But what's fascinating about that is how little of Thursday's argument focused on what such a "permissible, but in narrower circumstances" should actually look like on the ground...
Professor, to what extent is the trap you describe the Court having set for itself caused by the nature of the Trump Administration— a bad-faith actor that evades single-circuit decisions by going to another circuit?
Working title: The Overton Window meets Pareto-Optimality
It is striking that too many courts and justices treat these cases with an apparent lack of discussion and perhaps even care about the effects on real human beings as they play out in court over months and maybe years.
The Overton Window - Not long ago Americans across the political spectrum would have been opposed to masked, unidentified federal agents arresting and jailing people without charge then playing a shell game to keep them out of reach of sympathetic courts or simply racing to remove them to a third country (not their home country) before courts can intervene. The scandal of family separation and children in cages during Trump 1.0 was covered extensively by the media and resulted in public pressure enough to stop it. Now, masked agents can grab a young woman, unaware that her student visa had been revoked for speech the administration didn't like (the only "evidence" presented in court), off the street, route her through three states and jail her without charges for weeks and a significant part of the population either shrugs or cheers on the administration. Many of those who spent decades decrying government overreach are now the cheerleaders.
The concept of Pareto-optimality is new to me, but, in this circumstance, it seems that the degree of harm inflicted by the universal injunction suffered by the parties is not remotely comparable. Certainly imprisonment in the US is preferable to being transferred for a life sentence in a Salvadoran gulag, but, if media reports are accurate, many of the people being held have not been charged with any crime and many of those rendered to El Salvador have no criminal records either in the US or in their home country. The harm the government will suffer is it can't immediately render/deport without due process people already in their custody and they have to go to court to argue their case after which they go home and live their normal lives. The plaintiffs are locked in prison with no option to challenge their incarceration while this case plays out because the government will not initiate proceedings until the justices rule on the merits. That means potentially innocent people, possibly even legal residents or citizens, may be held until the Supreme Court rules. I understand that Pareto-optimality means neither party is made better- or worse-off by any change regardless of inequalities, but incarceration with no charges, due process or possibility of challenging your status cannot be balanced with preventing the government from deporting people. In the US, people are sentenced to periods of incarceration based on the severity of their crime. I would argue that the being held longer waiting for the courts makes someone worse off even if it is technically the status quo.
I doubt Solicitor General Sauer realistically could have said that the Administration would not follow SCOTUS opinions in other cases.
Cutting to the chase, I don't TRUST their statement to have broad value. For instance, the very merits issue here involves a blatantly unconstitutional policy that the Supreme Court has addressed multiple times. I know you once tossed in a possible "recent opinion" qualifier.
But they are not saying they want to overrule anything. They are pretending to follow precedent.
Steve, thanks for this and I wondered if you'd be able to clarify if you got the same feeling from Alito's dissent as Andy McCabe and Allison Gill did - namely that it was more concerned with the wellbeing of the 5th Cir. judgements than with the irreparable harm being done to detainees denied Due Process? I too thought it made no sense. But that was until I found out Alito is, in fact, the Circuit Justice for the 5th. It comes across as Alito's ego got a massive ouchie from the 7, and he didn't like it.
OK, you had a footnote on the TPS and the first case has now resulted in letting the government start dealing with those in the 2021 tranche. (At least I think it is limited to that tranche). I reread you piece on the two cases (TPS and parole) and still can't figure out how Noem just rejected the extensions the Biden Administration filed IN THE FEDERAL REGISTER. Does the "good cause" exception to the APA just allow "we don' wike that" ?
And what will happen now. Can the government just start loading people on planes? To where? All close to a Million? Will all Air Traffic Controllers be diverted to Texas or wherever just to get the planes off the ground? Is there any due process requirement before they do that? I was under the impression that TPS status was decided on an individual basis. Will they need an individual deportation order? Why isn't DOGE gutting the funding for all this?
1. Why exactly does the government believe that Article III bars federal courts from issuing relief that benefits non-parties?
2. "... practically, albeit not formally, once the Supreme Court has ruled on a legal question, the federal government understands that ruling to have conclusively settled the matter, at least in the near term."
I thought a Supreme Court ruling on the interpretation of a statute or the constitutionality of a state law was formally binding throughout the country. For example, the Court's decision in Roe v. Wade explicitly states that certain kinds of laws restricting abortion are unconstitutional (1, Section XI, p. 164), and all States are legally bound by that decision. Is State Vladeck claiming otherwise, or have I misunderstood him?
We are certainly seeing a change in how the Supreme Court handles the intersection between its merits and motions docket. And given these rapid orders and opinions, the bench and bar do not have a clear understanding of what SCOTUS intends (if it does) to signal as a pathway to merits decisions that have the benefits of percolation (to mitigate obvious forum selection problems) and cutting off due process due to executive, how shall I say…, exuberance.
More interesting to the mere mortals who labor in the trenches of the courts of appeals is the secondary question whether a court of appeals decision is binding on non-parties. I understand the "non-acquiescence" concept in the OLC memo at the link, although I hadn't heard about it before. But the federal government is in the unusual position of potentially litigating a statutory or constitutional question in every circuit. What about a litigant in a single circuit? That litigant is surely bound (in the precedent sense, not the claim preclusion sense) by decisions of that circuit's court of appeals, correct? As a long-time Chicago lawyer, I can tell you I would not want to be in the position of telling the Seventh Circuit I was free to ignore what it said the law was. That's a good way to end your career in a hurry, if not your life!
Here's a shorter way of asking my question. The SG's concept that circuit court decisions needn't be followed and aren't necessarily binding is a concept peculiar to the federal government because it litigates nationally, correct? I mean, there's no such thing as "non-acquiescence" for the ordinary, run of the mill litigant, right?
There is little basis for a limiting principle restricting nationwide class actions particularly in the birthright citizenship cases where three courts held the Trump EO to directly violate the plain meaning of the 14th Amendment. And there was no discussion of any limiting principle in the oral argument except the discussion of Rule 23 class actions where the government can be relied upon to oppose class certification. And what would be the limiting principle in the case before the Court? If the Court were to limit nationwide injunctions in some way then they would be encouraging a multiplicity of cases on the same question. When the EO or practice is itself nationwide, I fail to see any error in use of a nationwide injunction.
Alternative theory: AARP was a special case, responding to a situation where (as detailed in the facts section in the opinion) there was a real danger of the Administration deporting people before they received the notice and hearing that all 9 members of the Court thought they should get.
Which makes it... like Cooper, which is also a special case!
Hard cases make bad law, etc., etc., and in a special case the Court will twist whatever jurisdictional principle is necessary to compel obedience to its rulings. And rightfully so!
But that doesn't mean that those special rulings have to be consistent with what the Court does in run of the mill cases. When the Administration is scrambling around trying to deport people before they get hearings, or a state is playing games with obeying a clear equal protection ruling, yeah, you can do whatever you need to do to compel compliance. Does that mean nationwide injunctions are generally a good idea? I don't see how it does, unless one demands an Emersonian "foolish consistency" between what the Court does in emergencies and what it does the rest of the time.
I though the issue with national wide injunctions is not whether a district court has jurisdiction over and the power to grant relief to non parties (a an issue conclusively settled by Rule 23), but whether a district court’s jurisdiction, and it’s power to grant injunctive relief, is limited to persons or events within its own judicial district(ie the northern district of Texas), or is a district court’s jurisdiction to grant injunctive relief broader and is not confined to its district, but extends nationwide.
The decision in AARP II - published the day after oral arguments in the birthright case --suggests to me that the Sup Ct has already decided NOT to make it "harder for lower courts to issue preliminary relief that is effectively nationwide" -- in effect saying, for the purposes of a TRO, we will assume without deciding that XYZ = a class in order to protect the rights of these 'putative class' members while the case percolates up through appeals.
Obviously this 7-2 ruling did not satisfy Alito and Thomas, but will it satisfy SG Sauer's Art III jurisdiction concern and will the government honor it in other cases?
So, I have two questions. One, how is it possible for the Court to merely decide a Constitutionally specific act can be disregarded? For example, what if a State decides that it no longer wants 18-year-olds to vote, but wants that age moved back to 21 once more? And secondly, how can you run a nation if every State can create a law for the same action in a different, or even opposite way, such as what has happened with abortions? It seems, that like most things in the 21st Century, we are over-intellectualizing ourselves into corners that will eventually trap our very efforts to adjudicate and end up with a nation so confused and divided that it will collapse!
Given your argument that Article III itself doesn’t prevent universal injunctions, do you think we might see some very narrow ruling in these cases? I’ve been thinking that even if universal injunctions should be rare, there are various ways they could be applied to the birthright citizenship cases without reaching a decision on universal injunctions more generally - for example, where the lower court is just saying that SCOTUS already decided this issue (i.e. in Wong Kim Ark) and allowing the government’s conduct would enable a constitutional violation, that seems like the strongest possible case for a universal injunction, and one that wouldn’t have applied to, say, Kacsmaryk’s mifepristone ruling. Or am I missing something here?
I don't think you're missing anything. But what's fascinating about that is how little of Thursday's argument focused on what such a "permissible, but in narrower circumstances" should actually look like on the ground...
Thank you so much for your time and effort. Really helps to understand the SC actions by me, a non lawyer
Professor, to what extent is the trap you describe the Court having set for itself caused by the nature of the Trump Administration— a bad-faith actor that evades single-circuit decisions by going to another circuit?
Working title: The Overton Window meets Pareto-Optimality
It is striking that too many courts and justices treat these cases with an apparent lack of discussion and perhaps even care about the effects on real human beings as they play out in court over months and maybe years.
The Overton Window - Not long ago Americans across the political spectrum would have been opposed to masked, unidentified federal agents arresting and jailing people without charge then playing a shell game to keep them out of reach of sympathetic courts or simply racing to remove them to a third country (not their home country) before courts can intervene. The scandal of family separation and children in cages during Trump 1.0 was covered extensively by the media and resulted in public pressure enough to stop it. Now, masked agents can grab a young woman, unaware that her student visa had been revoked for speech the administration didn't like (the only "evidence" presented in court), off the street, route her through three states and jail her without charges for weeks and a significant part of the population either shrugs or cheers on the administration. Many of those who spent decades decrying government overreach are now the cheerleaders.
The concept of Pareto-optimality is new to me, but, in this circumstance, it seems that the degree of harm inflicted by the universal injunction suffered by the parties is not remotely comparable. Certainly imprisonment in the US is preferable to being transferred for a life sentence in a Salvadoran gulag, but, if media reports are accurate, many of the people being held have not been charged with any crime and many of those rendered to El Salvador have no criminal records either in the US or in their home country. The harm the government will suffer is it can't immediately render/deport without due process people already in their custody and they have to go to court to argue their case after which they go home and live their normal lives. The plaintiffs are locked in prison with no option to challenge their incarceration while this case plays out because the government will not initiate proceedings until the justices rule on the merits. That means potentially innocent people, possibly even legal residents or citizens, may be held until the Supreme Court rules. I understand that Pareto-optimality means neither party is made better- or worse-off by any change regardless of inequalities, but incarceration with no charges, due process or possibility of challenging your status cannot be balanced with preventing the government from deporting people. In the US, people are sentenced to periods of incarceration based on the severity of their crime. I would argue that the being held longer waiting for the courts makes someone worse off even if it is technically the status quo.
I doubt Solicitor General Sauer realistically could have said that the Administration would not follow SCOTUS opinions in other cases.
Cutting to the chase, I don't TRUST their statement to have broad value. For instance, the very merits issue here involves a blatantly unconstitutional policy that the Supreme Court has addressed multiple times. I know you once tossed in a possible "recent opinion" qualifier.
But they are not saying they want to overrule anything. They are pretending to follow precedent.
Steve, thanks for this and I wondered if you'd be able to clarify if you got the same feeling from Alito's dissent as Andy McCabe and Allison Gill did - namely that it was more concerned with the wellbeing of the 5th Cir. judgements than with the irreparable harm being done to detainees denied Due Process? I too thought it made no sense. But that was until I found out Alito is, in fact, the Circuit Justice for the 5th. It comes across as Alito's ego got a massive ouchie from the 7, and he didn't like it.
OK, you had a footnote on the TPS and the first case has now resulted in letting the government start dealing with those in the 2021 tranche. (At least I think it is limited to that tranche). I reread you piece on the two cases (TPS and parole) and still can't figure out how Noem just rejected the extensions the Biden Administration filed IN THE FEDERAL REGISTER. Does the "good cause" exception to the APA just allow "we don' wike that" ?
And what will happen now. Can the government just start loading people on planes? To where? All close to a Million? Will all Air Traffic Controllers be diverted to Texas or wherever just to get the planes off the ground? Is there any due process requirement before they do that? I was under the impression that TPS status was decided on an individual basis. Will they need an individual deportation order? Why isn't DOGE gutting the funding for all this?
And so on and so on and scooby dooby do.
I have two questions for the legal experts.
1. Why exactly does the government believe that Article III bars federal courts from issuing relief that benefits non-parties?
2. "... practically, albeit not formally, once the Supreme Court has ruled on a legal question, the federal government understands that ruling to have conclusively settled the matter, at least in the near term."
I thought a Supreme Court ruling on the interpretation of a statute or the constitutionality of a state law was formally binding throughout the country. For example, the Court's decision in Roe v. Wade explicitly states that certain kinds of laws restricting abortion are unconstitutional (1, Section XI, p. 164), and all States are legally bound by that decision. Is State Vladeck claiming otherwise, or have I misunderstood him?
[1] https://tile.loc.gov/storage-services/service/ll/usrep/usrep410/usrep410113/usrep410113.pdf
We are certainly seeing a change in how the Supreme Court handles the intersection between its merits and motions docket. And given these rapid orders and opinions, the bench and bar do not have a clear understanding of what SCOTUS intends (if it does) to signal as a pathway to merits decisions that have the benefits of percolation (to mitigate obvious forum selection problems) and cutting off due process due to executive, how shall I say…, exuberance.
I’ll stay tuned to your bat channel!
More interesting to the mere mortals who labor in the trenches of the courts of appeals is the secondary question whether a court of appeals decision is binding on non-parties. I understand the "non-acquiescence" concept in the OLC memo at the link, although I hadn't heard about it before. But the federal government is in the unusual position of potentially litigating a statutory or constitutional question in every circuit. What about a litigant in a single circuit? That litigant is surely bound (in the precedent sense, not the claim preclusion sense) by decisions of that circuit's court of appeals, correct? As a long-time Chicago lawyer, I can tell you I would not want to be in the position of telling the Seventh Circuit I was free to ignore what it said the law was. That's a good way to end your career in a hurry, if not your life!
Here's a shorter way of asking my question. The SG's concept that circuit court decisions needn't be followed and aren't necessarily binding is a concept peculiar to the federal government because it litigates nationally, correct? I mean, there's no such thing as "non-acquiescence" for the ordinary, run of the mill litigant, right?
There is little basis for a limiting principle restricting nationwide class actions particularly in the birthright citizenship cases where three courts held the Trump EO to directly violate the plain meaning of the 14th Amendment. And there was no discussion of any limiting principle in the oral argument except the discussion of Rule 23 class actions where the government can be relied upon to oppose class certification. And what would be the limiting principle in the case before the Court? If the Court were to limit nationwide injunctions in some way then they would be encouraging a multiplicity of cases on the same question. When the EO or practice is itself nationwide, I fail to see any error in use of a nationwide injunction.
Alternative theory: AARP was a special case, responding to a situation where (as detailed in the facts section in the opinion) there was a real danger of the Administration deporting people before they received the notice and hearing that all 9 members of the Court thought they should get.
Which makes it... like Cooper, which is also a special case!
Hard cases make bad law, etc., etc., and in a special case the Court will twist whatever jurisdictional principle is necessary to compel obedience to its rulings. And rightfully so!
But that doesn't mean that those special rulings have to be consistent with what the Court does in run of the mill cases. When the Administration is scrambling around trying to deport people before they get hearings, or a state is playing games with obeying a clear equal protection ruling, yeah, you can do whatever you need to do to compel compliance. Does that mean nationwide injunctions are generally a good idea? I don't see how it does, unless one demands an Emersonian "foolish consistency" between what the Court does in emergencies and what it does the rest of the time.
I though the issue with national wide injunctions is not whether a district court has jurisdiction over and the power to grant relief to non parties (a an issue conclusively settled by Rule 23), but whether a district court’s jurisdiction, and it’s power to grant injunctive relief, is limited to persons or events within its own judicial district(ie the northern district of Texas), or is a district court’s jurisdiction to grant injunctive relief broader and is not confined to its district, but extends nationwide.
The decision in AARP II - published the day after oral arguments in the birthright case --suggests to me that the Sup Ct has already decided NOT to make it "harder for lower courts to issue preliminary relief that is effectively nationwide" -- in effect saying, for the purposes of a TRO, we will assume without deciding that XYZ = a class in order to protect the rights of these 'putative class' members while the case percolates up through appeals.
Obviously this 7-2 ruling did not satisfy Alito and Thomas, but will it satisfy SG Sauer's Art III jurisdiction concern and will the government honor it in other cases?
So, I have two questions. One, how is it possible for the Court to merely decide a Constitutionally specific act can be disregarded? For example, what if a State decides that it no longer wants 18-year-olds to vote, but wants that age moved back to 21 once more? And secondly, how can you run a nation if every State can create a law for the same action in a different, or even opposite way, such as what has happened with abortions? It seems, that like most things in the 21st Century, we are over-intellectualizing ourselves into corners that will eventually trap our very efforts to adjudicate and end up with a nation so confused and divided that it will collapse!
What do you think? Will we still be a democracy by November of 2028?