Notwithstanding the Court's June ruling, President Trump's birthright citizenship executive order remains blocked—a broader lesson on the risks of paying attention to only one part of the news cycle.
This was very helpful to me and anyone whose peripheral vision is clogged with screaming monkeys of doom. I certainly did not track the pace or percentage of admin. responses.
I have also been wondering how they will manage minus all the people who’ve been fired or forced to resign at DoJ. I wonder how many truly adept lawyers are left to build and argue these cases.
Sorry about that. I'm not talking about realists or anyone other than me. I'm talking about what *my* lens does to reality. Or my amygdala, I guess. I do try to look squarely at reality. Peripherally, the adrenalin contorts the picture as panic builds, rendering me far less likely to see the things Professor Vladeck wrote about today. That's why I find it helpful. I did not intend to impugn anyone.
I think there are two other conclusions we can draw from the many lower court losses the administration isn't appealing:
(1) The SG's office is the one part of DOJ that can still tell the White House "no." After some brushbacks earlier in the year, for example in the Abrego Garcia case, John Sauer seems to have convinced his political bosses that they'll be better served by letting him decide which cases to bring to the court and (largely) how to argue them. He seems now to be bringing applications where he thinks the government has a very good chance or ones where a loss is likely to be narrow. Of the five applications you list, I see four as likely government wins at the preliminary stage (Slaughter, Global Health Council, Orr, and National TPS Alliance) even if only on procedural grounds, and one as a likely loss (Cook). The fact that Sauer has succeeded in part because he has a measure of independence should (but won't) provide a lesson for the WH about the positive benefits of an arms length relationship with DOJ.
(2) For all their early bluster about defying judges, this administration doesn't want to get in an extended direct confrontation with the courts. They'll denounce judges on Fox, take aggressive positions in the lower courts, read injunctions narrowly, and break the law where they think they can avoid litigation, but when faced with an unambiguous court order they will largely comply. Even the Garcia case shows that after some initial posturing, they'll eventually find their way to begrudging compliance.
Appreciate the summary, but just to highlight to not allow it to be missed:
"denounce judges on Fox, take aggressive positions in the lower courts, read injunctions narrowly, and break the law where they think they can avoid litigation"
Break the law. BTW, saw an article noting the budget does not have an increase for judicial security except for SCOTUS justices. Marching orders from the White House.
Point (1) is also relevant context for the Administration's record in the Supreme Court. While one can fairly criticize the Court's decisions in the cases being brought before it, the Administration's raw success rate is at least as much a product of picking their battles as it is a measure of partisan bias.
I believe that there are few if any rulings on whether individual notice to each class member is required in a rule 23(b)(2) injunctive relief class action. That the lower courts are not stopping to address this is a sign that they are outraged by the government’s position and willing to do anything they can to put a stop to it.
A conservative position would be to stop and ask this: can an absent class member be bound by an adverse judgment if they have never received notice? A further potential complication is that it is very difficult to identify the class members — and the class is constantly enlarged with new members. I suspect that these questions are not being raised by the government because, as the note argues, its lawyers know that it has a low chance of succeeding in these cases. Another distinct possibility is that they are overwhelmed by the number of cases (and as we know the competency and number of DOJ attorneys are on a downward path).
Thank you Prof. I had no idea that the majority of Trump cases were proceeding uneventfully in the lower Courts and that they were also slow-walking the Birthright cases post-Casa.
Off topic, but goodness gracious I miss the late lamented National Security Law podcast. As the "administration" has declared war on drug runners (?) in the Caribbean and is summarily executing people, and for a hundred other reasons, I'd love to hear what you and Bobby have to say.
Steve, thanks for reassuring us that SCOTUS is “less nihilistic” than media has been reporting.
If SCOTUS is “less nihilistic,” then what’s the big whoop?
Meanwhile, the Overton Window slips and slides downhill.
Soon Steve will be reassuring us that SCOTUS is “less nihilistic” because it ruled that habeas hearings must be held someday in 4 of 7 cases in which Trump political opponents were subjected to warrantless arrests and indefinite detentions without charges in secret foreign gulags.
He didn't say that ... his comment was about "the role of the courts—and of the law, more generally". But I would agree that he is overly optimistic and insufficiently alarmed.
Vladek’s statement is rather ambiguous, filled as it is with pronouns with uncertain antecedents:
“Because this reality doesn’t make for quite as attractive headlines, it’s one to which too many folks are largely oblivious. That’s a problem worth fixing—not only because it’s important to tell both sides of the litigation story, but because including these cases paints a more complicated (and, in my view, far less nihilistic) picture of the role of the courts—and of the law, more generally—as a check on the Trump administration.”
Notwithstanding the ambiguity, he seems to suggest that an accurate picture of the “role of the courts” as a whole would still be at least somewhat nihilistic. Since “the role of the courts” in the present crisis is going to be “whatever SCOTUS says it is” or allows it to be, it’s not wrong to infer that Vladek has implicitly admitted (perhaps unintentionally) that SCOTUS has been acting in a nihilistic manner—especially if one defines nihilism to be a perspective that rejects the possibility of principled conduct. Even if you want to interpret Vladek’s words as meaning that the courts as a whole have been less less nihilistic than portrayed in the popular media, it’s fair to say the lower courts have been ”less nihilistic” than SCOTUS, and SCOTUS has been more nihilistic than the lower courts. That logic does not describe a reassuring picture.
Question: If there is a government shutdown, do the lower federal courts also shut down? I have read that they do when they run out of money saved from court fees - about two weeks. (Criminal cases keep going.)
If the courts do shut down it seems we lose a valuable tool that currently stops or slows this administration and shines a light on it. Not a good result - administration would be delighted with a shutdown it seems to me.
"And although there are certainly some high-profile examples of apparent non-compliance (and other shady litigation behavior), those, too, are the exceptions that prove the rule."
If an administration chooses to ignore or even defy court rulings, when do those exceptions no longer "prove the rule"? Where's the line between exceptions proving the rule and no longer having a working system of checks and balances?
That's an important question. If Donald Trump were to be deterred from committing illegal acts 99 times and then allowed to murder someone on Fifth Avenue, the fact that he was deterred 99% of the time wouldn't be very reassuring to people who might need to walk on Fifth Avenue.
I would like to believe that it is true that, as Steve says, the Trump Administration is not getting emergency relief in a majority of the cases in which it has lost in the lower courts. But his analysis certainly does not support that conclusion. Trump may be losing in the birthright citizenship and law firm cases, but Steve does not identify any other categories of cases in which he is losing. Trump’s efforts to rescind funding appropriated by the Congress, to fire federal employees without cause, to arrest people without probable cause, and to abrogate free speech by punishing universities and corporations who displease him seem to be proceeding unabated, thanks to the Supreme Court’s supine deference to the “unitary executive” (the Supremes seem to think “unitary” means the whole government, not just the whole executive branch). I look forward to Steve offering evidence from other categories of cases that the “majority” of cases are going against the Administration.
Without walking through every example, I'll just note that we're now over 140 distinct cases in which district courts have issued preliminary relief against activities by the Trump administration. Some of those rulings have been paused on by courts of appeals (roughly 25, by my count). Another 25 or so have been paused by the Supreme Court. That leaves more than 90 adverse district court rulings that, as of today, are still intact.
I don't mean to downplay the massive and disruptive effects of the rulings allowing policies/actions to go forward (and have been quite clear in other posts about my critiques of many of those decisions). But we shouldn't ignore these other cases, either.
Also. I hope I wasn’t unduly censorious in my comment. I value your work very highly, and rarely disagree, but I thought you just hadn’t adequately supported your argument in this case.
Not necessary, you found it. The point is if Trump profits, it’s okay. If white, wealthy, it’s okay. “Little Russia” in FL continues to grow so it remains a practice. You’re surprised the article hasn’t been updated?!? Who would report?
“Since 2000, the number of foreign nationals who give birth in the state of Florida has increased by 200%. Currently, there are no laws that dictate whether pregnant foreign nationals can give birth in the U.S., but a shifting political environment could lead to potential changes in the future.”
Not buying your optimism and I don't think my law professors would have defined a legitimate concern as nihilism. I sued a Bar Association in Federal Court and won. Again, I ask you, why isn't any lawyer stepping up about PAFACCA sabotage?
I've been similarly pessimistic about how SCOTUS will respond in Trump v. GHC. The court send happy to simply issue unexplained stays... Letting Trump do what he likes so long as they do not have to explain how it could possibly comport with the law or the Constitution.
I've been really puzzled over this, though. Allowing pocket rescissions is nearly as damaging to the plain language of the Constitution AND the ICA as you can get. It's on the scale of the birthright citizenship case because it nullifies the central power of Congress in the Constitution. It's the first article! Standing seems clear. So I can't wrap my mind around the internal justifications of the justices for a stay. Is it possible they will sit on their hands until Oct 1, then declare the question moot? So they don't even have to decide on a stay?
Isnt this the time, especially in this "winter of discontent", to consider a suite of laws that need to be legislated to govern proper constitutional, egalitarian/democratic conduct of elections. Should we really wait til there is a change in government, or should we have a platform of election conduct laws ready for the time (not long, please, please) when they can be enacted (or re-enacted given the Supremes biases)?
This suite of political organizational legislation should, by its very nature, be enacted with the constitution-provided bar to their being subject to Supreme Court review.
It could include: the reform of campaign finance, upending C.U., under the principle that "money is NOT speech, it is the corruptor of free speech for all citizens".
The reinstituion of civil rights protections and review to ensure that all citizens have the unimpeded and protected right to vote.
A national set of standards for the conduct of elections, not to take away the states prerogatives, but to set bounds that will exclude wilfull attempts to limit and exclude voting.
The would include a set of standards, applied across the entire country, on the apportionment of House of Representative districts.
If we apply our wit, it could include a work-around of the electoral system, bringing the election of President out of the slavery-based constitutional framework, and moving as close as possible to a one person, one vote (regardless of state residence) standard.
If we could debate and prepare such reforms of the political system now, we could be ready to legislate them in the certainly coming New Times.
And we might not have to otherwise "reform" the Supreme Court, self-crippled as it is proving to be in the current era.
Your comment about preparing a set of reforms to be enacted when there is a change of government is spot-on. Why are we not learning from the Heriage Foundation and Project 2025? However, I think the Supreme Court has to be reformed regardless because the doctrinaire, conservative majoruty would try to any reforms enacted.
We cannot know what the cumulative effect the Trump Administration litigation has had on the separation of powers and the Constitution without knowing how the cases are going at the lower levels. And just as important--as you point out--if the lower courts speak in opinions and are not heard, because they are drowned out by SCOTUS or by a press that cannot keep up that is dangerous for the rule of law and democracy. The public relies on the press to inform them and put what the lower courts do into perspective, and they have fallen far behind. Thank you for being one of the leading voices in analyzing what is happening.
Speaking of constraining Trump, is there any way for anyone to legally challenge the administration's bombing of speedboats that president Trump claims are being used by drug traffickers? The people who were in the boats are dead, so they obviously can't bring a lawsuit.
This was very helpful to me and anyone whose peripheral vision is clogged with screaming monkeys of doom. I certainly did not track the pace or percentage of admin. responses.
I have also been wondering how they will manage minus all the people who’ve been fired or forced to resign at DoJ. I wonder how many truly adept lawyers are left to build and argue these cases.
"screaming monkeys of doom"
A rather pejorative way to refer to realists.
Sorry about that. I'm not talking about realists or anyone other than me. I'm talking about what *my* lens does to reality. Or my amygdala, I guess. I do try to look squarely at reality. Peripherally, the adrenalin contorts the picture as panic builds, rendering me far less likely to see the things Professor Vladeck wrote about today. That's why I find it helpful. I did not intend to impugn anyone.
Something like the Buddhist concept of a "monkey mind".
https://www.namchak.org/community/blog/the-buddhist-story-of-the-monkey-mind/
I think there are two other conclusions we can draw from the many lower court losses the administration isn't appealing:
(1) The SG's office is the one part of DOJ that can still tell the White House "no." After some brushbacks earlier in the year, for example in the Abrego Garcia case, John Sauer seems to have convinced his political bosses that they'll be better served by letting him decide which cases to bring to the court and (largely) how to argue them. He seems now to be bringing applications where he thinks the government has a very good chance or ones where a loss is likely to be narrow. Of the five applications you list, I see four as likely government wins at the preliminary stage (Slaughter, Global Health Council, Orr, and National TPS Alliance) even if only on procedural grounds, and one as a likely loss (Cook). The fact that Sauer has succeeded in part because he has a measure of independence should (but won't) provide a lesson for the WH about the positive benefits of an arms length relationship with DOJ.
(2) For all their early bluster about defying judges, this administration doesn't want to get in an extended direct confrontation with the courts. They'll denounce judges on Fox, take aggressive positions in the lower courts, read injunctions narrowly, and break the law where they think they can avoid litigation, but when faced with an unambiguous court order they will largely comply. Even the Garcia case shows that after some initial posturing, they'll eventually find their way to begrudging compliance.
These both strike me as spot-on.
Appreciate the summary, but just to highlight to not allow it to be missed:
"denounce judges on Fox, take aggressive positions in the lower courts, read injunctions narrowly, and break the law where they think they can avoid litigation"
Break the law. BTW, saw an article noting the budget does not have an increase for judicial security except for SCOTUS justices. Marching orders from the White House.
For now.
Point (1) is also relevant context for the Administration's record in the Supreme Court. While one can fairly criticize the Court's decisions in the cases being brought before it, the Administration's raw success rate is at least as much a product of picking their battles as it is a measure of partisan bias.
I believe that there are few if any rulings on whether individual notice to each class member is required in a rule 23(b)(2) injunctive relief class action. That the lower courts are not stopping to address this is a sign that they are outraged by the government’s position and willing to do anything they can to put a stop to it.
A conservative position would be to stop and ask this: can an absent class member be bound by an adverse judgment if they have never received notice? A further potential complication is that it is very difficult to identify the class members — and the class is constantly enlarged with new members. I suspect that these questions are not being raised by the government because, as the note argues, its lawyers know that it has a low chance of succeeding in these cases. Another distinct possibility is that they are overwhelmed by the number of cases (and as we know the competency and number of DOJ attorneys are on a downward path).
Thank you Prof. I had no idea that the majority of Trump cases were proceeding uneventfully in the lower Courts and that they were also slow-walking the Birthright cases post-Casa.
Off topic, but goodness gracious I miss the late lamented National Security Law podcast. As the "administration" has declared war on drug runners (?) in the Caribbean and is summarily executing people, and for a hundred other reasons, I'd love to hear what you and Bobby have to say.
Alas, one of us currently has a job in which such public commentary would be ... unwise.
Oof! Yes.
“Make Denominators Great Again”!!!!!!!
Steve, thanks for reassuring us that SCOTUS is “less nihilistic” than media has been reporting.
If SCOTUS is “less nihilistic,” then what’s the big whoop?
Meanwhile, the Overton Window slips and slides downhill.
Soon Steve will be reassuring us that SCOTUS is “less nihilistic” because it ruled that habeas hearings must be held someday in 4 of 7 cases in which Trump political opponents were subjected to warrantless arrests and indefinite detentions without charges in secret foreign gulags.
He didn't say that ... his comment was about "the role of the courts—and of the law, more generally". But I would agree that he is overly optimistic and insufficiently alarmed.
Vladek’s statement is rather ambiguous, filled as it is with pronouns with uncertain antecedents:
“Because this reality doesn’t make for quite as attractive headlines, it’s one to which too many folks are largely oblivious. That’s a problem worth fixing—not only because it’s important to tell both sides of the litigation story, but because including these cases paints a more complicated (and, in my view, far less nihilistic) picture of the role of the courts—and of the law, more generally—as a check on the Trump administration.”
Notwithstanding the ambiguity, he seems to suggest that an accurate picture of the “role of the courts” as a whole would still be at least somewhat nihilistic. Since “the role of the courts” in the present crisis is going to be “whatever SCOTUS says it is” or allows it to be, it’s not wrong to infer that Vladek has implicitly admitted (perhaps unintentionally) that SCOTUS has been acting in a nihilistic manner—especially if one defines nihilism to be a perspective that rejects the possibility of principled conduct. Even if you want to interpret Vladek’s words as meaning that the courts as a whole have been less less nihilistic than portrayed in the popular media, it’s fair to say the lower courts have been ”less nihilistic” than SCOTUS, and SCOTUS has been more nihilistic than the lower courts. That logic does not describe a reassuring picture.
Question: If there is a government shutdown, do the lower federal courts also shut down? I have read that they do when they run out of money saved from court fees - about two weeks. (Criminal cases keep going.)
If the courts do shut down it seems we lose a valuable tool that currently stops or slows this administration and shines a light on it. Not a good result - administration would be delighted with a shutdown it seems to me.
"And although there are certainly some high-profile examples of apparent non-compliance (and other shady litigation behavior), those, too, are the exceptions that prove the rule."
If an administration chooses to ignore or even defy court rulings, when do those exceptions no longer "prove the rule"? Where's the line between exceptions proving the rule and no longer having a working system of checks and balances?
That's an important question. If Donald Trump were to be deterred from committing illegal acts 99 times and then allowed to murder someone on Fifth Avenue, the fact that he was deterred 99% of the time wouldn't be very reassuring to people who might need to walk on Fifth Avenue.
I would like to believe that it is true that, as Steve says, the Trump Administration is not getting emergency relief in a majority of the cases in which it has lost in the lower courts. But his analysis certainly does not support that conclusion. Trump may be losing in the birthright citizenship and law firm cases, but Steve does not identify any other categories of cases in which he is losing. Trump’s efforts to rescind funding appropriated by the Congress, to fire federal employees without cause, to arrest people without probable cause, and to abrogate free speech by punishing universities and corporations who displease him seem to be proceeding unabated, thanks to the Supreme Court’s supine deference to the “unitary executive” (the Supremes seem to think “unitary” means the whole government, not just the whole executive branch). I look forward to Steve offering evidence from other categories of cases that the “majority” of cases are going against the Administration.
Without walking through every example, I'll just note that we're now over 140 distinct cases in which district courts have issued preliminary relief against activities by the Trump administration. Some of those rulings have been paused on by courts of appeals (roughly 25, by my count). Another 25 or so have been paused by the Supreme Court. That leaves more than 90 adverse district court rulings that, as of today, are still intact.
I don't mean to downplay the massive and disruptive effects of the rulings allowing policies/actions to go forward (and have been quite clear in other posts about my critiques of many of those decisions). But we shouldn't ignore these other cases, either.
Good to know! I hope you can return to this issue in more detail in a future post.
Also. I hope I wasn’t unduly censorious in my comment. I value your work very highly, and rarely disagree, but I thought you just hadn’t adequately supported your argument in this case.
Russian 'birth tourists' are flocking to Miami, and Trump condos, to give birth to American citizens
https://theweek.com/speedreads/748344/russian-birth-tourists-are-flocking-miami-trump-condos-give-birth-american-citizens
...which doesn't change a letter of the Fourteenth Amendment.
But it does provide another date point ow two on where trump's interests lay.
You failed to mention that the article you cited is from January, 2018.
Not necessary, you found it. The point is if Trump profits, it’s okay. If white, wealthy, it’s okay. “Little Russia” in FL continues to grow so it remains a practice. You’re surprised the article hasn’t been updated?!? Who would report?
“Since 2000, the number of foreign nationals who give birth in the state of Florida has increased by 200%. Currently, there are no laws that dictate whether pregnant foreign nationals can give birth in the U.S., but a shifting political environment could lead to potential changes in the future.”
https://www.magazine.medicaltourism.com/article/miami-birth-tourism
Not buying your optimism and I don't think my law professors would have defined a legitimate concern as nihilism. I sued a Bar Association in Federal Court and won. Again, I ask you, why isn't any lawyer stepping up about PAFACCA sabotage?
I've been similarly pessimistic about how SCOTUS will respond in Trump v. GHC. The court send happy to simply issue unexplained stays... Letting Trump do what he likes so long as they do not have to explain how it could possibly comport with the law or the Constitution.
I've been really puzzled over this, though. Allowing pocket rescissions is nearly as damaging to the plain language of the Constitution AND the ICA as you can get. It's on the scale of the birthright citizenship case because it nullifies the central power of Congress in the Constitution. It's the first article! Standing seems clear. So I can't wrap my mind around the internal justifications of the justices for a stay. Is it possible they will sit on their hands until Oct 1, then declare the question moot? So they don't even have to decide on a stay?
Isnt this the time, especially in this "winter of discontent", to consider a suite of laws that need to be legislated to govern proper constitutional, egalitarian/democratic conduct of elections. Should we really wait til there is a change in government, or should we have a platform of election conduct laws ready for the time (not long, please, please) when they can be enacted (or re-enacted given the Supremes biases)?
This suite of political organizational legislation should, by its very nature, be enacted with the constitution-provided bar to their being subject to Supreme Court review.
It could include: the reform of campaign finance, upending C.U., under the principle that "money is NOT speech, it is the corruptor of free speech for all citizens".
The reinstituion of civil rights protections and review to ensure that all citizens have the unimpeded and protected right to vote.
A national set of standards for the conduct of elections, not to take away the states prerogatives, but to set bounds that will exclude wilfull attempts to limit and exclude voting.
The would include a set of standards, applied across the entire country, on the apportionment of House of Representative districts.
If we apply our wit, it could include a work-around of the electoral system, bringing the election of President out of the slavery-based constitutional framework, and moving as close as possible to a one person, one vote (regardless of state residence) standard.
If we could debate and prepare such reforms of the political system now, we could be ready to legislate them in the certainly coming New Times.
And we might not have to otherwise "reform" the Supreme Court, self-crippled as it is proving to be in the current era.
Your comment about preparing a set of reforms to be enacted when there is a change of government is spot-on. Why are we not learning from the Heriage Foundation and Project 2025? However, I think the Supreme Court has to be reformed regardless because the doctrinaire, conservative majoruty would try to any reforms enacted.
We cannot know what the cumulative effect the Trump Administration litigation has had on the separation of powers and the Constitution without knowing how the cases are going at the lower levels. And just as important--as you point out--if the lower courts speak in opinions and are not heard, because they are drowned out by SCOTUS or by a press that cannot keep up that is dangerous for the rule of law and democracy. The public relies on the press to inform them and put what the lower courts do into perspective, and they have fallen far behind. Thank you for being one of the leading voices in analyzing what is happening.
Speaking of constraining Trump, is there any way for anyone to legally challenge the administration's bombing of speedboats that president Trump claims are being used by drug traffickers? The people who were in the boats are dead, so they obviously can't bring a lawsuit.