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.
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).
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.
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.
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.
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.
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.
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.
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).
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.
“Make Denominators Great Again”!!!!!!!
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.
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.
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.
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.
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.
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.