162. What Does the Birthright Citizenship Ruling Portend?

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.

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There’s an enormous amount to say about the six rulings (well, five rulings and one punt) that we got from the Supreme Court earlier today. I’ll save most of that for Monday’s regular issue, but wanted to put out an extra issue tonight to reflect upon just how big a deal the ruling in Trump v. CASA, Inc. (the birthright citizenship cases) actually is. By now, you’ve surely seen the headline—that a 6-3, ideologically divided Court, in an opinion by Justice Barrett, sharply limited “universal” injunctions to cases in which they are necessary to provide “complete relief” to the parties (more on what all that means below). The ruling has provoked sharp reactions from across the spectrum—including fairly apocalyptic takes from at least some savvy Court watchers.

There’s no question, in my mind, that today’s ruling dramatically restructures the relationship between federal courts and other government institutions (and between the Supreme Court and lower federal courts)—in ways both big and small. How deleterious those changes are to the ability of courts to hold the President accountable depends, in my view, on how three questions are answered—questions raised by today’s ruling, but very much not answered by it:

1. When will parties (especially states) need a universal injunction in order to obtain “complete” relief?

2. If lower courts start certifying more nationwide classes in suits challenging federal policies, will the Supreme Court approve?

3. To what extent is Justice Kavanaugh’s concurrence (and the normalization of emergency relief for which it argues), speaking for a majority?

I take these questions up below the fold. But for those who just want the TL;DR: I think that there’s much to criticize in both Justice Barrett’s majority opinion and Justice Kavanaugh’s concurrence. The long-term implications of the ruling, though, will really depend upon what happens next.

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I. When is a Universal Injunction Necessary to Provide “Complete Relief” to Specific Plaintiffs?

Contra some headlines, Justice Barrett’s majority opinion doesn’t foreclose “universal” injunctions in all cases.¹ Rather, it holds that injunctive relief that directly benefits non-plaintiffs is appropriate only when it’s necessary to ensure that the plaintiffs themselves get “complete” relief. (An illustrative example of when individual plaintiffs will need universal relief is in redistricting cases—where states often need to redraw maps on a statewide basis to redress a successful challenge by even a single plaintiff.) Put another way, if an injunction limited to the plaintiffs in that case will give those plaintiffs all the relief to which they’re entitled, nothing broader is permitted. That’s the holding, in a nutshell.

The majority never actually explains why CASA (the lead private plaintiff in the Maryland challenge to the birthright citizenship executive order) can receive complete relief with an injunction that applies only to it and its members. Although the lower courts hadn’t spent much time on this issue (yet another issue with the Court deciding this question through emergency applications), CASA had specifically argued in the Supreme Court that it couldn’t get complete relief without a universal remedy. That said, given that the majority unambiguously voted to stay the injunction in the CASA case, it seems to have at least implicitly concluded that a CASA-specific injunction is sufficient.

But the other two cases before the Supreme Court have states as plaintiffs. And although the Trump administration had asked the justices to knock the states out, the Court (implicitly) declined in today’s ruling. So those cases go forward with state plaintiffs, for which the complete relief question is much harder.

Imagine, for instance, if the executive order goes into effect in, say, Texas (which is not one of the plaintiffs), but not in New Jersey (which is). New Jersey has pretty good arguments that the injunction has to cover babies born in Texas, or else it will be harmed both with respect to having to have different rules depending upon where babies are born and a concern that babies born in New Jersey will lose benefits (and maybe even face deportation) if they ever enter Texas. If a district court buys those arguments, then we could quickly see another universal injunction blocking the executive order—now with the analysis that the Supreme Court has held is necessary.

Presumably, the Supreme Court would then be asked by the Trump administration to stay such an injunction—which would require the Court to weigh in, at least implicitly, on whether the states’ complete relief arguments are valid. If the Court leaves such a universal injunction in place, then, obviously, the effects of today’s ruling on the birthright citizenship policy will be only temporary. If the Court stays that injunction, too, then that could clear the way for the executive order to go into effect, depending upon what happens with efforts to certify a nationwide class action (more on that below).

Either way, much would depend, both in the birthright citizenship cases and beyond, upon this second-generation question—and when a universal injunction really is necessary to give individual (or organizational or state) plaintiffs “complete” relief, whether as against the birthright citizenship executive order or any other federal policy. My own suspicion is that the states will be able to make this argument work vis-a-vis the birthright citizenship cases, but not in at least some of the other cases in which they’re plaintiffs.

II. Will We See a Resurgence of 23(b)(2) Class Actions?

I’ve written before about the relationship between universal injunctions and nationwide class actions—and the view that the availability of nationwide class actions reduces the significance of the Supreme Court’s narrowing of universal injunctions. Indeed, perhaps the biggest question today’s ruling raises is whether we’re going to see a resurgence of what are known as “23(b)(2)” class actions seeking nationwide relief—where a small number of named plaintiffs seek injunctions against federal policies on behalf of everyone across the country who is similarly situated. As I’m writing this, we’ve already seen parties in several of the birthright citizenship cases move to certify such classes.

Class actions are harder to bring, at least largely thanks to the Supreme Court—and a series of rulings from the early 2010s that ratcheted up the requirements for certifying nationwide classes. On top of that, states (and organizations like CASA) can’t be class-action plaintiffs (the Federal Rule of Civil Procedure that authorizes class-wide relief requires the plaintiffs to be persons). And even when a district court determines that certification of a nationwide class is appropriate, (1) it often takes some time for the district court to so conclude; and (2) such a ruling is itself subject to an immediate, interlocutory appeal—which can both slow down the litigation and give appellate courts an early opportunity to reject a district court’s decision to certify a nationwide class. So as with the “complete relief” question, the viability of this alternative legal procedure for blocking federal policies on a nationwide basis really depends upon just how available nationwide class actions turn out to be in practice—not just in general, but at the outset of litigation, as well.²

That, in turn, will almost certainly depend upon the Supreme Court—which will no doubt be asked by the Trump administration for emergency relief in a case in which the government believes class certification itself was inappropriate. When (not if) that case arises, will the justices also narrow nationwide class actions even further? Or will at least five of them let nationwide class actions do much of the work that universal injunctions were doing? Indeed, Justice Alito’s (short) concurrence went out of its way to warn against this second possibility, but it was joined only by Justice Thomas.

In other words, the ability of district courts to block federal policies on a nationwide basis going forward is going to depend a lot on how the other four justices in the majority (the Chief Justice and Justices Gorsuch, Kavanaugh, and Barrett) respond to the uptick of 23(b)(2) nationwide classes that’s necessarily coming. If two or more of them are generally sympathetic to such relief, then that will at least somewhat reduce the implications of today’s decision. But if the Court is also going to look askance at nationwide class actions, then today’s ruling really could be catastrophic for the ability of lower courts, at least, to halt executive branch lawlessness on a broad-enough basis to make a difference.

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. As the Alien Enemies Act cases have demonstrated, that’s a recipe for a huge mess, and one in which there’s way too much room for shell games by the executive branch.

III. Is the Shadow Docket Going to Get Even Busier?

This brings me to Justice Kavanaugh’s concurrence, which is remarkably … candid. As Kavanaugh sees it, there really are two questions in cases like these:

Should there be a nationally uniform answer on the question of whether a major new federal statute or executive action can be legally enforced in the often years-long interim period until this Court reaches a final decision on the merits? If so, who decides what the nationally uniform interim answer is?

Kavanaugh makes a good case for why the answer to the first question should often be “yes.” The second question, of course, is trickier. Kavanaugh writes that “[t]he answer typically will be this Court, as has been the case both traditionally and recently.” But as I’ve explained before, the claim about “tradition” (which Kavanaugh has made before) is misleading at best. (More on why in the footnote that follows this parenthetical.)³

Of course, it is factually correct that the Court has been far more involved in settling the “nationally uniform interim answer” recently; I can even think of some good citations for that proposition. :-) Justice Kavanaugh’s opinion goes on to explain why that’s been a good thing—by purporting to respond to (unidentified) critics of the Court’s recent behavior on emergency applications. Putting aside that several of his responses are directed at strawmen, and that I continue to strongly disagree with the rest, the key for present purposes is to highlight the commitment that he’s making—that the emergency docket isn’t going anywhere, and that the Court will continue to regularly grant or deny emergency relief as necessary to set what a majority believes the “nationally uniform interim answer” ought to be.

In other words, Kavanaugh is effectively inviting both the government and litigants challenging government policies to use the emergency docket even more—not just in cases in which there is some compelling exigency, but in any case in which there's a need for that kind of nationwide (interim) uniformity. Depending on what happens with class actions, there could be a lot more of those very soon (e.g., if we start seeing numerous different lawsuits challenging the same policy, and those suits produce inconsistent rulings). As busy as the shadow docket has been this term, apparently, Justice Kavanaugh is cool with it being even busier. But will his colleagues agree?

One of the central problems with the Court’s approach to emergency applications in recent years has been its seeming inconsistency—granting emergency relief to Republican presidents or governors in very similar contexts to those in which it denied emergency relief to Democratic presidents or governors (in two immigration cases, for instance, the Court ruled for the Biden administration at the merits stage after denying applications to stay universal injunctions against the Biden policies).⁴ Do we expect the justices to all of a sudden be consistent when it comes to their resolution of emergency applications—especially if they’re getting more of them? And without written explanations (the norm in such cases), how will we even know?

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Even if the Court does decide even more emergency applications, and even if it tries to explain itself more often, what Kavanaugh is proposing would still be a massive shift in power—not just between the federal courts and the other institutions of government, but between the Supreme Court and lower federal courts. It would also be a massive arrogation of power—since the Court’s powers to grant emergency relief are statutory, and Congress hasn’t touched the relevant statues since 1948.⁵

Indeed, rapid resolution of the “nationally uniform interim answer” may be sufficient to mitigate the principal concern raised by the dissenting opinions—of unchecked lawlessness by the executive branch. (Given the Court’s track record in Trump cases to date, I’m skeptical.) But at best, it would replace unchecked lawlessness by the executive with unchecked lawlessness by the judiciary—and by the Supreme Court, in particular.

Of course, that lawlessness might sometimes lead to a result we “like” (if the “nationally uniform interim answer” is, e.g., to temporarily block odious policies like the birthright citizenship executive order or to freeze lower-court rulings like Judge Kacsmaryk’s nationwide block of access to mifepristone). But part of why legal process matters is to rest the resolution of these issues on more than just the potentially transient and typically unexplained whims of the judges and justices. Thus, even if, at the end of the day, the remedial law on the ground doesn’t look that different six months from now than it looked yesterday, the central problem with Friday’s ruling is that it very much signals the demise of that school of thought—and of the broader legitimacy that has historically followed from the Court’s adherence, even in the breach, to neutral procedural rules.

Instead, it’s turtles, all the way down.

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We’ll be back Monday with our regular coverage of the Court. If you enjoyed this installment and are not already a subscriber, I hope you’ll consider becoming one (and upgrading to a paid subscription if you already are):

Have a safe weekend, all.

1. A “universal” injunction is one that bars the defendant from taking the challenged action against anyone, and not just against the plaintiffs in that particular case.

2. Nationwide class actions would also raise complicated procedural questions if litigants tried to file multiple of them at once—especially with regard to the principle of “preclusion,” i.e., that parties generally may not litigate in a second lawsuit facts or legal issues that were adjudicated on the merits in a prior case.

3. As I wrote last year in response to the first iteration of this argument:

If the point of this passage is to suggest that the only thing that’s new about the Court’s recent behavior is its volume, that’s just poppycock. Yes, the Court (and, before 1980, individual justices acting “in chambers”) has made a number of “important decisions for the Nation” through rulings on emergency applications. But [under] the pre-1980 approach . . . those decisions were almost always made by individual justices and not the full Court . . . . (The only pre-1980 example Kavanaugh cites of a full-Court ruling on an emergency application is the lifting of the stay of execution in the Rosenberg case, which was not just extraordinary, but came … with an opinion of the Court.) In other words, there are almost no examples, prior to 1980, of full Court rulings on emergency applications on “important decisions for the Nation” that came without any explanation from the Court. . . .

And even from 1980 to the mid-2010s, when the Court shifted away from the in-chambers model, the overwhelming majority of full-Court rulings on emergency applications were in death penalty cases—which, whatever one might think of the underlying issues, tend not to be “important decisions for the Nation.” It’s only since the mid-2010s that we’ve seen the Court regularly hand down rulings on emergency applications with statewide or nationwide implications and without any attempt to provide a public rationale. To act as if this isn’t a recent shift is to ignore exactly what is different and problematic about the Court’s recent behavior.

Suffice it to say, I don’t think Justice Kavanaugh’s CASA concurrence does anything to shore up his historical claim.

4. Indeed, the Biden administration had also presented the Court with two excellent (and far-less-fraught) vehicles for narrowing universal injunctions. Reaching that issue only when it was the Trump administration asking … doesn’t help.

5. There’s also the perverse irony of footnote 3—where, concurring in a majority opinion that is all about the need to observe procedural formalities, Justice Kavanaugh suggests that there’s no reason for the Court to distinguish between two very different types of emergency relief that have always had different standards (and different statutory bases). Procedural formalities matter—except when they don’t.