Friday's ruling in Trump v. CASA will fundamentally alter the relationship between federal courts and other government institutions. How much depends upon three questions the decision left unanswered.
You write: “Without universal injunctions or nationwide class actions, we’d be left to individual lawsuits—or, at best, district-wide lawsuits—to conclusively resolve the validity of nationwide policies.”
But NO court could conclusively resolve ANY lawsuit nationally. Precedent itself is destroyed if the law only applies to individual jurisdictions: no other court need follow any other court’s decision until SCOTUS settles the law on every single law in the Federal system.
Until then, the Federal government can continue to do illegal things to everyone who hasn’t themselves WON IN COURT.
So every single person has to sue and win to preserve their freedom of speech or their guns?
Yes, and . . . the government could KEEP taking guns from EVERYONE who hasn’t THEMSELVES won in court. And ANY court could conclude that the government is right, even though every other court says it’s completely illegal and unconstitutional.
I'd be more worried it Trump issued an EO that any public criticism of the administration is treason. By reduction to absurdity, Trump would be well withing his rights to shutdown sites like this one until the issue was finally adjudicated on merits years later by the Supreme Court. And every poster would have to defend themselves individually unless and until they can form a recognized class.
How does it work at the state level? Does an injunction apply only to plaintiffs or can a state court issue a statewide injunction pending appeal to the state's highest court? Similarly, if a case is brought in a federal district court does the injunction apply only to plaintiffs or does the injunction have district-wide application pending a ruling by the circuit court of appeal?
In other words, does Barrett's opinion say the default is that equitable remedies can never (except incidentally) extend (beyond parties) to jurisdictional boundaries?
Would your answer change if the case were brought as a facial constitutional challenge (to an EO or statute or agency regulation)?
Finally, since Congress wrote the Judiciary Act of 1789, can't Congress amend it to clarify the reach of equitable remedies (or would the Court rule it unconstitutional because it departs from what "the founders" adopted from the High Court of Chancery)?
From where does the SC derive authority to micro manage all article al III judges?
Art III sec 2
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
A naive question: In the birthright case, at the same time, could a different plaintiff in each federal district apply for an injunction (or whatever you call it)? Then, if the court in every district ruled in favor of the plaintiff would that then act as a universal injunction?
No. A plaintiff getting plaintiff-specific relief wouldn’t benefit anyone else, even in the same district, unless they were suing on behalf of a (district-wide or nationwide) class.
Thanks for the quick reply. And all of your great work. For one who is not familiar with the ins and outs of the legal system, you write in such a manner that makes it accessible.
The court has truly opened up Pandora's Box. We will be lucky to have the matter of who really is a citizen of the USA as established by the 14th Amendment in time for the 2030 Census. This majority acts continually as though the Civil War was never fought and that the 13th, 14th and 15th Amendments were never really legitimate Amendments. They seem to really like the style and elegance with which Dred Scott was crafted.
The majority was dealing here with judicial overreach. You like like judicial decisional law over legislative? Dred Scott is perfect example of all that is wrong with it.
Start beating up on Congress for its its disgraceful inactivity. That's where the real problem lies. All the legislators who see their function as commenting on the executive are the real enemy.
Legal realism was a very popular theory when I was younger, but this Court does it with a vengeance. (It's the idea that decisions are influenced by personal beliefs and biases rather than simply by applying pre-existing rules.) And the majority barely even tries to apply a patina of consistency or actual application of the law; it all looks results oriented.
I call it "Through the Looking Glass textualism". The words mean exactly what they want them to mean, nothing more and nothing less. And they don't have to mean the same thing every time. The Roberts court couldn't do a better job of convincing the public that they are just political hacks in robes if they tried.
The SCOTUS 6 have not even attempted to hide their fear & obvious bias towards the “Unitary Executive”, (giving trump, effectively complete immunity or their beholding & obligation to their financial benefactors, (Citizens United). They have become an illegitimate court, serving not the citizens, but the corporations & the powered money interests.
This is what caught my eye about Justice Kavanaugh's concurrence. It seemed notable.
I poached this summary from the National Review. I first saw it in the New York Times.
"One, as Justice Brett Kavanaugh’s concurrence notes, is that the Administrative Procedure Act empowers courts to “set aside” agency action (not presidential executive orders, however)."
I wondered if, in the course of being so incredibly generous with executive branch power, he wasn't also protecting the Court's ability to overturn agency rules. Too cynical?
The overall literacy of the post obscures the practical fact that district Court judges are as idiosyncratic and whimsical as presidents, and not elected to boot. The practical evidence of this is the blatant forum shopping that has gone on in these litigations. The notion that these rulings are based on some pure rule of law is farcical. They reflect value judgments of individuals.
The Court did its best with this issue today, but the real problem remains the complete ineffectiveness of Congress to legislate in the way the Constitution intends. While we have law being made by presidential executive orders then tested in court, I.e by the executive branch as modified by the judicial, we are going to have these strange, difficult uncertainties in the law. The law a unified statutory approach is required, but it is impossible for Congress to undertake in its present state of disastrous partisanship.
The problem here is the Trump's EO stopped the world as we knew it. Up until that point, if you were born in this country you were a citizen. Now, apparently, you aren't at least not if your parents are undocumented. Why not keep the status quo until it is decided on merits?
That's the exact issue the Court was wrestling with in the opinion. But it would be far better resolved by legislation that created some certification procedure.
Come on Frank - you know better than that. A trial court's stay pending appeal is not immutable - a motion can be made to the appellate court, seeking either to confirm or vacate the trial court's stay. I think you are also well aware that federal district judges very rarely grant stays pending appeal.
I am not understanding this at all. The point is the trial judge did not reach a decision on the merits, but granted pulmonary relief. So why you were discussing stays, that weren't issued, is somewhat confusing to me. These trial courts did the exact opposite.
OK, my use of the terminology was a little off. But my point is valid. Grant of a preliminary injunction by a federal district court is immediately appealable. 28 USC 1292(a)(1). The government is not at all without recourse in these nationwide PI cases. This government just doesn't like playing by the rules.
It's just crummy civics. There's a reason why injunctions of these kinds are unknown until 1960, and the Advent of judicial activism. For what it's worth, I've become a prototypical liberal hawk, retreating to the politics of my youth (JFK and FDR). But I'm a card-carrying judicial conservative. Judges should not interfere with democratic processes unless absolutely necessary.
I voted against Trump three times, and I'm no fan. But the Democrats rushing off to court to get injunctions from friendly judges is a solution even worse than the Trump problem. Just who is the enemy of democracy anyway?
I cannot imagine a majority of the Court not rendering the class action as useless as nationwide injunctions now are, to challenge executive orders.
But a more immediate question is why didn’t the Court take on the constitutionality of what clearly seems to be an illegal EO on birthright citizenship. The chaos that will result from lower court rulings holding the order to be unconstitutional in some states but unchallenged in other states seems an extremely good reason to have taken the issue up now.
The issue isn't ripe. These injunctions weren't even final remedies. They were preliminary.
Believe it or not, the issue reached the Supreme Court without being litigated. That in itself should be evidence of how wildly aggressive these injunctions were.
This was not a cert procure where the Court states the issue it will address when cert is granted. The Court does not declare in advance what issue it will decide on these emergency applications. So while technically only the TI was before the Court, it could have put an end to this debate over birthright citizenship.
Without a record? Without findings of fact and legal conclusions? That violates some of the fundamental principles of jurisprudence. The Court never gives anticipatory or advisory opinions. The cert grants are only of final judgments or certain very unusual interlocutory appeals.
Findings of facts and conclusions of law are required for a PI, including a conclusion of the likelihood of success. The Court could have, and has in the past, reached the merits by addressing likelihood of success.
Almost always on the basis of an ex parte showing on affidavits and the like, nowhere near the fullness which a trial docket on its way to the Supreme Court should have. Responsible district Court judges would not have issued these injunctions in the first place.
I’m sorry but only TROs are entered ex parte. I have been in PI hearings that were just like trials. pIs are not entered ex parte but upon a contested evidentiary hearing.
The EO will be declared unconstitutional in every district court, and the regime knows it. So the regime, probably with the covert agreement of Roberts, carefully avoided raising on appeal any issue of the merits. Thus, the supreme injustices could rule procedurally, stay the injunctions , and buy the regime time, maybe years, to act lawlessly.
Seems like a good day to be a class action lawyer, but it probably isn’t. Class action attorneys get a percentage of the take (like personal injury attorneys), but there doesn’t seem to be a pot in any of these cases. Perhaps they can get a consulting fee based on their expertise with the class action rules. The Supreme Court has expanded litigation and its attendant costs with not much benefit.
Question: wouldn't offensive collateral estoppel be a means that plaintiffs outside the original jurisdiction use to broaden the effects of the original case?
thank you so much for your clear explanations. What a horrific situation! So does this mean that if Trump makes an executive order saying slavery is legal again that it is fine for people to go and enslave others and buy them and sell them until the SC says otherwise?
Good question. By the way, as far as I know, slavery is still legal in the U.S. as punishment for crimes.
Thirteenth Amendment, Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
oh dear, the constitution really needs updating! I used to think it was good to have an 'entrenched' constitution that it was hard to change - as opposed to having simply a vote by 2/3 of congress as they do in many European countries - but I'm coming round to the view that legislation of all kinds has to be able to develop organically both for good and for bad. When the US does change its constitution, I would argue for a more balanced and less absolutist view of human rights: https://substack.com/inbox/post/157932889
I have no legal expertise and I don't know if any laws ban slavery as punishment for crimes.
I glanced at your Substack article. I understand the criticisms of the U.S. First Amendment, which are popular with many Americans these days, but I strongly First Amendment protections on speech. Like this country's founders, I consider the dangers of government control over speech to be greater than the dangers of free speech. This question has been debated many times in many places, so I won't get into details.
Let's just get rid of district courts, hold court in DC and have as many Federal judges as necessary to cover the workload, assigning all cases by luck of the draw, thus all injunctions will be universal regardless of where the affected parties are located and whether or not those parties include the Federal Administration or not. A Federal Judge is a Federal Judge and their rulings and injunctions are in force everywhere all the time subject to the appeals process. The Districts are purely arbitrary and their existence should be of no import to the processes of Federal cases nor the outcomes.
Geoff, this doesn't work well for the thousands of quite ordinary cases in the system. Federal district judges often need to apply the law of the state in which they sit; indeed in large classes of cases (Erie Doctrine) they are required to do so. Also of great importance - parties cannot all travel to DC for their cases; we have district courts to make justice available within a reasonable distance. Similarly, someone can be sued in federal court only in a district where they live (mostly, there are venue rules for this).
What would be useful - but we'll never get out of Congress in any near timeframe - is a statute providing special provisions for cases challenging the constitutionality of federal government actions.
I partly was being unserious. But a Federal Judge is a Federal Judge, and regardless of where he or she is located their rulings should apply everywhere on issues of Federal law.
No legal training here at all but I do wonder why the court couldn't just say in this particular instance the executive order is blatantly illegal, it is unconstitutional, and therefore only a universal injunction can deal with the problem created. Would that have been a ruling on the merits? And they weren't asked to do that? What am I not understanding? Would we have been better off if the Supreme Court had refused the government’s request to rule on national injunctions?
TLDR, we are f*cked
Yep
You write: “Without universal injunctions or nationwide class actions, we’d be left to individual lawsuits—or, at best, district-wide lawsuits—to conclusively resolve the validity of nationwide policies.”
But NO court could conclusively resolve ANY lawsuit nationally. Precedent itself is destroyed if the law only applies to individual jurisdictions: no other court need follow any other court’s decision until SCOTUS settles the law on every single law in the Federal system.
Yikes.
Until then, the Federal government can continue to do illegal things to everyone who hasn’t themselves WON IN COURT.
So every single person has to sue and win to preserve their freedom of speech or their guns?
Yes, and . . . the government could KEEP taking guns from EVERYONE who hasn’t THEMSELVES won in court. And ANY court could conclude that the government is right, even though every other court says it’s completely illegal and unconstitutional.
I'd be more worried it Trump issued an EO that any public criticism of the administration is treason. By reduction to absurdity, Trump would be well withing his rights to shutdown sites like this one until the issue was finally adjudicated on merits years later by the Supreme Court. And every poster would have to defend themselves individually unless and until they can form a recognized class.
How does it work at the state level? Does an injunction apply only to plaintiffs or can a state court issue a statewide injunction pending appeal to the state's highest court? Similarly, if a case is brought in a federal district court does the injunction apply only to plaintiffs or does the injunction have district-wide application pending a ruling by the circuit court of appeal?
In other words, does Barrett's opinion say the default is that equitable remedies can never (except incidentally) extend (beyond parties) to jurisdictional boundaries?
Would your answer change if the case were brought as a facial constitutional challenge (to an EO or statute or agency regulation)?
Finally, since Congress wrote the Judiciary Act of 1789, can't Congress amend it to clarify the reach of equitable remedies (or would the Court rule it unconstitutional because it departs from what "the founders" adopted from the High Court of Chancery)?
From where does the SC derive authority to micro manage all article al III judges?
Art III sec 2
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
A naive question: In the birthright case, at the same time, could a different plaintiff in each federal district apply for an injunction (or whatever you call it)? Then, if the court in every district ruled in favor of the plaintiff would that then act as a universal injunction?
No. A plaintiff getting plaintiff-specific relief wouldn’t benefit anyone else, even in the same district, unless they were suing on behalf of a (district-wide or nationwide) class.
Thanks for the quick reply. And all of your great work. For one who is not familiar with the ins and outs of the legal system, you write in such a manner that makes it accessible.
Wow, that was awkwardly worded. I mean't I'M not familiar, not you. :)
Your meaning was clear.
The court has truly opened up Pandora's Box. We will be lucky to have the matter of who really is a citizen of the USA as established by the 14th Amendment in time for the 2030 Census. This majority acts continually as though the Civil War was never fought and that the 13th, 14th and 15th Amendments were never really legitimate Amendments. They seem to really like the style and elegance with which Dred Scott was crafted.
The majority was dealing here with judicial overreach. You like like judicial decisional law over legislative? Dred Scott is perfect example of all that is wrong with it.
Start beating up on Congress for its its disgraceful inactivity. That's where the real problem lies. All the legislators who see their function as commenting on the executive are the real enemy.
Legal realism was a very popular theory when I was younger, but this Court does it with a vengeance. (It's the idea that decisions are influenced by personal beliefs and biases rather than simply by applying pre-existing rules.) And the majority barely even tries to apply a patina of consistency or actual application of the law; it all looks results oriented.
I call it "Through the Looking Glass textualism". The words mean exactly what they want them to mean, nothing more and nothing less. And they don't have to mean the same thing every time. The Roberts court couldn't do a better job of convincing the public that they are just political hacks in robes if they tried.
The SCOTUS 6 have not even attempted to hide their fear & obvious bias towards the “Unitary Executive”, (giving trump, effectively complete immunity or their beholding & obligation to their financial benefactors, (Citizens United). They have become an illegitimate court, serving not the citizens, but the corporations & the powered money interests.
This is what caught my eye about Justice Kavanaugh's concurrence. It seemed notable.
I poached this summary from the National Review. I first saw it in the New York Times.
"One, as Justice Brett Kavanaugh’s concurrence notes, is that the Administrative Procedure Act empowers courts to “set aside” agency action (not presidential executive orders, however)."
I wondered if, in the course of being so incredibly generous with executive branch power, he wasn't also protecting the Court's ability to overturn agency rules. Too cynical?
The overall literacy of the post obscures the practical fact that district Court judges are as idiosyncratic and whimsical as presidents, and not elected to boot. The practical evidence of this is the blatant forum shopping that has gone on in these litigations. The notion that these rulings are based on some pure rule of law is farcical. They reflect value judgments of individuals.
The Court did its best with this issue today, but the real problem remains the complete ineffectiveness of Congress to legislate in the way the Constitution intends. While we have law being made by presidential executive orders then tested in court, I.e by the executive branch as modified by the judicial, we are going to have these strange, difficult uncertainties in the law. The law a unified statutory approach is required, but it is impossible for Congress to undertake in its present state of disastrous partisanship.
That's why we have appellate courts.
Indeed, and also why we don't let individual trial judges stop the world while the appellate process goes on.
The problem here is the Trump's EO stopped the world as we knew it. Up until that point, if you were born in this country you were a citizen. Now, apparently, you aren't at least not if your parents are undocumented. Why not keep the status quo until it is decided on merits?
You're focused on the one issue. To allow on principle a single trial judge to stop a nationwide government policy just won't do.
Then we need a way for the Supreme Court to be able to pause implementation of the policy when they determine that it's likely unconstitutional.
That's the exact issue the Court was wrestling with in the opinion. But it would be far better resolved by legislation that created some certification procedure.
Come on Frank - you know better than that. A trial court's stay pending appeal is not immutable - a motion can be made to the appellate court, seeking either to confirm or vacate the trial court's stay. I think you are also well aware that federal district judges very rarely grant stays pending appeal.
I am not understanding this at all. The point is the trial judge did not reach a decision on the merits, but granted pulmonary relief. So why you were discussing stays, that weren't issued, is somewhat confusing to me. These trial courts did the exact opposite.
OK, my use of the terminology was a little off. But my point is valid. Grant of a preliminary injunction by a federal district court is immediately appealable. 28 USC 1292(a)(1). The government is not at all without recourse in these nationwide PI cases. This government just doesn't like playing by the rules.
It's just crummy civics. There's a reason why injunctions of these kinds are unknown until 1960, and the Advent of judicial activism. For what it's worth, I've become a prototypical liberal hawk, retreating to the politics of my youth (JFK and FDR). But I'm a card-carrying judicial conservative. Judges should not interfere with democratic processes unless absolutely necessary.
I voted against Trump three times, and I'm no fan. But the Democrats rushing off to court to get injunctions from friendly judges is a solution even worse than the Trump problem. Just who is the enemy of democracy anyway?
I cannot imagine a majority of the Court not rendering the class action as useless as nationwide injunctions now are, to challenge executive orders.
But a more immediate question is why didn’t the Court take on the constitutionality of what clearly seems to be an illegal EO on birthright citizenship. The chaos that will result from lower court rulings holding the order to be unconstitutional in some states but unchallenged in other states seems an extremely good reason to have taken the issue up now.
The issue isn't ripe. These injunctions weren't even final remedies. They were preliminary.
Believe it or not, the issue reached the Supreme Court without being litigated. That in itself should be evidence of how wildly aggressive these injunctions were.
This was not a cert procure where the Court states the issue it will address when cert is granted. The Court does not declare in advance what issue it will decide on these emergency applications. So while technically only the TI was before the Court, it could have put an end to this debate over birthright citizenship.
Without a record? Without findings of fact and legal conclusions? That violates some of the fundamental principles of jurisprudence. The Court never gives anticipatory or advisory opinions. The cert grants are only of final judgments or certain very unusual interlocutory appeals.
Findings of facts and conclusions of law are required for a PI, including a conclusion of the likelihood of success. The Court could have, and has in the past, reached the merits by addressing likelihood of success.
Almost always on the basis of an ex parte showing on affidavits and the like, nowhere near the fullness which a trial docket on its way to the Supreme Court should have. Responsible district Court judges would not have issued these injunctions in the first place.
I’m sorry but only TROs are entered ex parte. I have been in PI hearings that were just like trials. pIs are not entered ex parte but upon a contested evidentiary hearing.
The EO will be declared unconstitutional in every district court, and the regime knows it. So the regime, probably with the covert agreement of Roberts, carefully avoided raising on appeal any issue of the merits. Thus, the supreme injustices could rule procedurally, stay the injunctions , and buy the regime time, maybe years, to act lawlessly.
Seems like a good day to be a class action lawyer, but it probably isn’t. Class action attorneys get a percentage of the take (like personal injury attorneys), but there doesn’t seem to be a pot in any of these cases. Perhaps they can get a consulting fee based on their expertise with the class action rules. The Supreme Court has expanded litigation and its attendant costs with not much benefit.
I am also concerned about the reason for the punt.
Question: wouldn't offensive collateral estoppel be a means that plaintiffs outside the original jurisdiction use to broaden the effects of the original case?
thank you so much for your clear explanations. What a horrific situation! So does this mean that if Trump makes an executive order saying slavery is legal again that it is fine for people to go and enslave others and buy them and sell them until the SC says otherwise?
Good question. By the way, as far as I know, slavery is still legal in the U.S. as punishment for crimes.
Thirteenth Amendment, Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
oh dear, the constitution really needs updating! I used to think it was good to have an 'entrenched' constitution that it was hard to change - as opposed to having simply a vote by 2/3 of congress as they do in many European countries - but I'm coming round to the view that legislation of all kinds has to be able to develop organically both for good and for bad. When the US does change its constitution, I would argue for a more balanced and less absolutist view of human rights: https://substack.com/inbox/post/157932889
I have no legal expertise and I don't know if any laws ban slavery as punishment for crimes.
I glanced at your Substack article. I understand the criticisms of the U.S. First Amendment, which are popular with many Americans these days, but I strongly First Amendment protections on speech. Like this country's founders, I consider the dangers of government control over speech to be greater than the dangers of free speech. This question has been debated many times in many places, so I won't get into details.
Enjoyed "turtles all the way down". Bravo!
Let's just get rid of district courts, hold court in DC and have as many Federal judges as necessary to cover the workload, assigning all cases by luck of the draw, thus all injunctions will be universal regardless of where the affected parties are located and whether or not those parties include the Federal Administration or not. A Federal Judge is a Federal Judge and their rulings and injunctions are in force everywhere all the time subject to the appeals process. The Districts are purely arbitrary and their existence should be of no import to the processes of Federal cases nor the outcomes.
Geoff, this doesn't work well for the thousands of quite ordinary cases in the system. Federal district judges often need to apply the law of the state in which they sit; indeed in large classes of cases (Erie Doctrine) they are required to do so. Also of great importance - parties cannot all travel to DC for their cases; we have district courts to make justice available within a reasonable distance. Similarly, someone can be sued in federal court only in a district where they live (mostly, there are venue rules for this).
What would be useful - but we'll never get out of Congress in any near timeframe - is a statute providing special provisions for cases challenging the constitutionality of federal government actions.
I partly was being unserious. But a Federal Judge is a Federal Judge, and regardless of where he or she is located their rulings should apply everywhere on issues of Federal law.
No legal training here at all but I do wonder why the court couldn't just say in this particular instance the executive order is blatantly illegal, it is unconstitutional, and therefore only a universal injunction can deal with the problem created. Would that have been a ruling on the merits? And they weren't asked to do that? What am I not understanding? Would we have been better off if the Supreme Court had refused the government’s request to rule on national injunctions?