235. Hypothetical Jurisdiction in Mullin v. Doe

Justice Alito's TPS opinion stakes out an expansive new claim for how courts can resolve "interim relief" appeals. It's a good thing Justices Gorsuch and Barrett (silently) refused to endorse it.

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A lot of the focus on last week’s Supreme Court rulings has gravitated toward Mullin v. Doe (the “Temporary Protected Status” or “TPS” cases), and for good reason. There’s quite a bit to say about Justice Alito’s whitewashing of President Trump’s racism toward Haitians (much of which was said by Justice Kagan in her dissent, and also by Adam Serwer in The Atlantic), and, more generally, about picking this moment in American history to read ambiguous language in a statute to foreclose judicial review of statutory challenges to executive branch decisions that directly implicate, as in the Haiti case, the lives and livelihoods of hundreds of thousands of individuals.

But I wanted to use today’s “Long Read” to pick up on a piece of Justice Alito’s opinion that hasn’t gotten a lot of attention—Part III-A, in which he purports to explain why the Court could reach the merits of the plaintiffs’ constitutional challenge to the revocation of TPS for Haiti (that it was motivated by unconstitutional racial animus) without deciding if it had jurisdiction to do so. Hard though it may be to believe, this may be the most transsubstantive part of the decision—even though it’s also the most technical. (Major kudos to my former Civil Procedure student—and rising Georgetown 2L Paul Michaud—who flagged this passage before I’d focused on it.)

Across four (very-lightly-cited) paragraphs, Alito argues that, when appellate courts are reviewing grants or denials of “interim” relief (including, one presumes, grants or denials of emergency relief), they can reach the merits without resolving whether they have jurisdiction to do so—at least so long as it doesn’t affect the outcome (that is, so long as the party that would’ve won on jurisdiction also wins on the merits).

This theory has a name: “hypothetical jurisdiction.” And it has been emphatically and repeatedly rejected by the Supreme Court ever since Justice Scalia’s 1998 opinion for the Court in Steel Co. v. Citizens for a Better Environment. To adopt it in the context of “interim” or “emergency” relief is not only impossible to reconcile with the entire theory of Steel Co., but would empower the Supreme Court (and courts of appeals) to be even more aggressive when it comes to emergency relief by empowering them to grant relief in contexts in which they literally lack jurisdiction to do so. Indeed, Alito’s opinion has echoes of his March concurrence in the Malliotakis case—where he offered a highly problematic explanation for why the justices could reach all the way down to stay a state trial-court ruling before the state supreme court had had a meaningful opportunity to do so.

Alito was wrong then, and he’s even more wrong now. That may explain why Justices Gorsuch and Barrett didn’t join this part of the opinion (which thus spoke only for a four-justice plurality of the Court), but it’s more than a little disturbing that both Chief Justice Roberts and Justice Kavanaugh, who often claim to be sticklers about such things, did.

More on why this is such a big deal below. But first, the (loads of other) news.

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On the Docket

The Merits Docket

The Court handed down nine rulings on the merits docket last week (this is one of the challenges of trying to provide comprehensive coverage of the Court in late June; there’s just too much to cover). I’m going to reduce those rulings to incredibly superficial summaries here, but I hope to come back to many of them in future issues. (There’s also Thursday’s “Decision Day Summaries” video for paid subscribers.) And I’m putting in bold the names of the seven of the nine rulings that sorted the justices into their (alas, far-too-usual) 6-3 ideological/political camps:

1. Cisco Systems, Inc. v. Doe: In a 6-3 ruling written by Justice Barrett, the Court dramatically narrowed the scope of the Alien Tort Statute, holding that it reaches only the narrow set of international-law claims Congress recognized when it enacted the statute in 1789. Justice Sotomayor’s dissent objected that the decision “closes the courthouse doors” to virtually every future victim of even the most egregious human rights violations, even those for which U.S. corporations are responsible. An 8-1 majority (everyone except Justice Sotomayor) also held that the Torture Victim Protection Act of 1991 doesn’t authorize aiding-and-abetting liability—making it harder to sue defendants who provide indirect support for torture.

2. Exxon Mobil Corp. v. Corporación Cimex, S. A. (Cuba): For the same 6-3 majority, Justice Kavanaugh held that the Helms-Burton Act abrogates the sovereign immunity of Cuban agencies and instrumentalities, so plaintiffs suing those entities under the Act need not separately satisfy one of the Foreign Sovereign Immunities Act (FSIA)’s enumerated exceptions. Justice Kagan wrote for the three Democratic appointees in arguing that the better reading of the relevant statutes (and the Court’s foreign sovereign immunity jurisprudence) is that the FSIA’s exceptions should still govern.

3. Landor v. Louisiana Dep’t of Corrections and Public Safety: I already covered Justice Gorsuch’s deeply significant opinion for the same 6-3 majority in last Thursday’s bonus issue—so I won’t rehash that here.

4. Pung v. Isabella County: Justice Alito wrote for an effectively unanimous Court in holding that the proper baseline for “just compensation” after a fairly conducted tax-foreclosure sale is the auction sale price rather than the property’s hypothetical fair market value, and that the Eighth Amendment’s Excessive Fines Clause does not require the government to return more than the surplus proceeds.

5. Blanche v. Lau: For the usual 6-3 majority, Justice Thomas cleared the way for immigration officers to more readily treat returning lawful permanent residents (green card holders) as applicants for admission—holding that the Immigration and Nationality Act does not require clear and convincing evidence that a green-card holder committed a disqualifying crime before doing so. Justice Jackson wrote for the dissenters, arguing that the ruling will let the government strip returning residents of their admitted status first and justify that decision later—undermining the statutory protections attached to lawful permanent residence. NYU law professor Nancy Morawetz has much more about what she describes as the Court’s “highly disingenuous” ruling here.

6. Monsanto Co. v. Durnell: For a 7-2 majority, Justice Kavanaugh held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) expressly preempts a state-law failure-to-warn claim that would have required Monsanto to add a cancer warning to Roundup’s EPA-approved label. Justice Jackson dissented, joined by Justice Gorsuch, objecting that the preemption ruling wrongly forecloses state tort remedies for injured plaintiffs by reading into the statute preemptive effects that Congress could never have reasonably intended.

7. Wolford v. Lopez: For the usual 6-3 majority, Justice Alito struck down under the Second Amendment Hawaii’s “no-carry default” law, which made it a crime for concealed-carry permit holders to bring firearms onto private property open to the public without the property owner’s express consent. Justice Jackson’s principal dissent argued that the Hawaii law simply applies the property-law “right to exclude” and does no harm to the Second Amendment. More generally, the dissent went to some length to argue that the Court has inserted even more subjectivity into the deeply controversial (and malleable) “history and tradition” test for Second Amendment claims that it first articulated in Bruen. Indeed, Wolford’s significance is probably more about how the majority explains the Bruen test than its specific application here, but it’s a big deal either way.

8. Mullin v. Al Otro Lado: For the usual 6-3 majority, Justice Alito held that a noncitizen who is stopped at a port of entry in Mexico does not “arrive in the United States,” so the Immigration and Nationality Act neither entitles such a person to apply for asylum nor requires an officer to inspect him—allowing officials to turn back asylum seekers at the southern border. Justice Sotomayor wrote for the dissenters, warning that the consequences for asylum-seeking refugees would be “predictable” (including that “more people will die,” and that “more people will attempt to cross the border illegally, and some will make it while others will not”). Of especial note, Sotomayor read parts of her dissent from the bench—which prompted an unprecedented verbal retort from Justice Alito. As NPR’s Nina Totenberg reported, Alito said “There is much that I would have added to my bench statement had I known there would be a dissent read.” He then offered a short, extemporaneous rebuttal—something that … doesn’t happen. On Friday, the Court issued a statement to NPR—that “Justice Alito was notified in advance by Justice Sotomayor’s chambers that she would be reading a dissent from the bench. It was a misunderstanding on Justice Alito’s part.” It was also a highly unusual breach of protocol—and, not for nothing, gives us yet another example of why the Court should be live-streaming its opinion hand-down announcements; sometimes, the announcements themselves are newsy.

9. Mullin v. Doe: The last of Thursday’s rulings was also, in my view, the most significant. Writing again for the same majority, Justice Alito held that the TPS statute’s bar on judicial review is broad and plain, so courts cannot postpone the terminations of TPS based on even meritorious statutory objections to the government’s behavior. As for the Haitian plaintiffs’ constitutional objection, the same majority held that the plaintiffs had failed to establish that the government’s actions toward Haiti were based on race. Justice Kagan, who was joined in full by Justices Sotomayor and Jackson, wrote a strident dissent—objecting that the statute still permits review of whether the Secretary followed mandated procedures; that the evidence of racial animus in the Haitian case was manifest; and that “hundreds of thousands of lives will be uprooted” while the litigation proceeds. More on Doe in a moment.

Just one overarching note about all of these rulings: Even before the final eight decisions this week (as many as five of which, I fear, could split the justices the usual way), last week’s rulings brought to 12 the number of 6-3 rulings from the Court in cases argued this term, 10 of which had the Republican appointees in the majority and the Democratic appointees in dissent. That’s already three more than last term (and the number will go up), without even getting to the emergency docket. However we define “big” cases, and whichever cases we do and don’t count, any claim that the defining characteristic of the Supreme Court isn’t this 6-3 split is an increasingly tired canard.

The Court also handed down yet another summary reversal as part of last Monday’s Order List—its ninth(!) of the term, and another ruling from which the Democratic appointees were the only visible dissenters. Specifically, in McCarthy v. Hernandez, the justices reversed a grant of federal post-conviction relief to an (infamous) New York state prisoner on the ground that it was never clear that the Court’s 2004 ruling in Missouri v. Seibert (about so-called “mid-stream Miranda warnings”) has any applicability to jury instructions.

The Emergency Docket

There were two emergency docket rulings of note last week: On Thursday, the Court denied a stay of execution (over no public dissents) to Florida death-row prisoner Dusty Spencer, who was executed later Thursday night. And late Friday afternoon, Chief Justice Roberts, in his capacity as circuit justice for the D.C. Circuit, issued an “administrative stay” of the mandate in the case of Fox News reporter Catherine Herridge, who was held in contempt for refusing to identify the government employee who leaked information to her in claimed violation of the Privacy Act. The D.C. Circuit had held on appeal that the plaintiff in the Privacy Act case had overcome Herridge’s qualified First Amendment privilege against revealing her source, and affirmed the contempt citation. Herridge is asking the Court to keep that decision on hold while she seeks plenary review. The Chief Justice ordered the plaintiff to respond to Herridge’s application by noon ET on Wednesday, so we may well get a ruling one way or the other this week.

The Week Ahead

Buckle up, because this week is going to be a doozy.

Here’s what we know for sure: The Court will hand down a regular Order List at 9:30 ET this morning. And the justices will take the bench at 10 ET to hand down some (but not all) of the eight rulings that are still outstanding in cases argued earlier this term. (We know we’re not getting all of them because the Chief Justice did not announce on Thursday that today is the last day.)

We also know two other things, albeit without the specifics. First, we know the Court will have at least (and, my guess, exactly) one more decision day—most likely either tomorrow or Wednesday. We’ll know more at the end of today’s public session, when either the Chief Justice or the Marshal will let us know when the next day is (and, if the next day is the last day). Second, we also know that the Court will hand down orders from the justices’ “Cleanup Conference” likely in the afternoon on the same day it hands down its last rulings from the bench, and no later than the following morning.

And that Order List often has a lot of quietly important stuff on it, including summary reversals; grants of certiorari for next term; and/or long-outstanding denials of certiorari, often accompanied by lengthy separate opinions. In other words, in addition to the eight remaining rulings in argued cases, the Court could (and likely will) make quite a bit of other news this week, too—before the justices head off on their summer recess.

Of course, it doesn’t have to be this way. But I digress.

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The One First “Long Read”:
Hypothetical Jurisdiction and “Interim” Relief

As I (try to) teach my Civil Procedure students every fall (and then try to re-teach my Federal Courts students every spring), Article III federal courts are courts of “limited subject-matter jurisdiction,” one of the consequences of which is that they must always be assured of their own statutory and constitutional authority to resolve the case before them—authority that can neither be waived by the parties nor assumed by the judges.

For a time, some lower courts tried to get around this ironclad rule through something they called “hypothetical jurisdiction.” To be fair, the theory wasn’t crazy; imagine a case in which there is (1) a difficult jurisdictional question; and (2) an easy merits question, the resolution of which will favor the party opposing jurisdiction. It would necessarily conserve scarce judicial resources for a court to simply assume, without deciding, that it had jurisdiction—in order to quickly resolve the merits in a way that produced the same ultimate victor. Put another way, if the plaintiff is going to lose either way, and the merits issue is straightforward, why spend pages puzzling through a thorny standing or jurisdictional question?

In 1998, Justice Scalia answered that question on behalf of the Court—and he wasn’t subtle about it. Scalia’s central objection in Steel Co. was constitutional, not prudential. A court without Article III jurisdiction has no power to declare the law, so anything it says about the merits is, by definition, ultra vires. In his memorable phrase, “[h]ypothetical jurisdiction produces nothing more than a hypothetical judgment—which comes to the same thing as an advisory opinion,” and the justices have rejected their authority to provide such rulings since 1793.

To be sure, Steel Co. drew one careful line—it distinguished merits questions like “does this statute create a cause of action” from true Article III questions like standing and subject-matter jurisdiction, and held only the latter must always come first. But on the core point, it was unambiguous: a court must decide whether it has subject-matter jurisdiction before it decides the merits. For 28 years, that’s been the catechism, even as lower courts have repeatedly tried to wriggle around it.¹

That brings us to Thursday’s ruling in Doe. The core of Justice Alito’s opinion interpreted the relevant provisions of federal immigration law to foreclose jurisdiction over non-constitutional challenges to any decisions relating to the granting, terminating, or revoking of TPS. Thus, the district court lacked the power to block the revocations of TPS for Haiti and Syria on statutory grounds (e.g., that Secretary Noem violated statutory procedural requirements). My own view is that Justice Kagan’s dissent has the better of the statutory arguments here, but that’s for another day.

The Haitian plaintiffs (unlike the Syrian plaintiffs) also challenged Secretary Noem’s revocation of TPS on constitutional grounds—arguing that it was motivated by racial animus, and thus violated the equal protection principles the Supreme Court has read into the Fifth Amendment’s Due Process Clause. The same majority rejected that claim on the merits, but only after a … curious … passage in which Justice Alito explained why the Court could reach the merits without deciding if the courts had jurisdiction to even reach them.

Specifically, in Part III-A of his opinion, Alito purported to distinguish Steel Co. on the ground that Doe came to the Court on appeal from a grant of a preliminary injunction—that is, on review of an award of interim relief, not a final judgment. Thus, he argued, the cardinal rule from Steel Co.—that a court “may not consider the merits of a claim without first making a firm determination that it has jurisdiction”—is a rule only about final decisions. “When interim relief is sought,” he wrote, “a court does not make a final decision on any matter necessary to the ultimate judgment”; it makes “only a predictive—not a final—decision about the outcome of the case.” Because both “the likelihood that the court has jurisdiction” and “the likelihood that the claim is meritorious” feed into the same likelihood-of-success calculus, he concluded that “courts may consider both”—and “need not always start with the jurisdictional ground if the claim for interim relief would also fail on the merits.”

To me, there are four problems with this passage, in escalating order of seriousness. First, it is awfully light on authority. The only relevant citation in the entire passage is to the Sixth Circuit’s opinion in Arizona v. Biden, which … doesn’t actually analyze the question of whether federal courts can assume jurisdiction when reviewing grants of interim relief. In other words, Alito’s only external support for the distinction on which this entire section depends is an opinion that neither articulated nor defended that distinction.

Second, as Will Baude noted in a thoughtful post over at Divided Argument, Alito’s “fails on either ground” framing runs into a probability problem that becomes obvious once you put real numbers on it. Recall that, at the interim stage, a court is not deciding anything for certain; it is estimating the odds—the likelihood that it has jurisdiction, and the likelihood that the plaintiff is right on the merits. Now suppose a court thinks the plaintiff is probably right on each question, but not certainly so—say, 71% likely to have jurisdiction and 71% likely to prevail on the merits. Because those are two separate hurdles, the plaintiff’s real chance of winning might be viewed as the two probabilities multiplied together: 0.71 × 0.71, or roughly 50%. (Professor Kevin Clermont has argued against this approach to the math, but that’s for another time.) In other words, a plaintiff who is more likely than not to clear both hurdles can still be, on the whole, no better than a coin flip to actually win—and yet, under Alito’s logic, a court could grant interim relief without ever satisfying itself that it has the power to hear the case at all—and an appellate court can reach the merits based on the same math. Alito’s opinion has nothing to say about how this scenario undermines his reasoning; its entire defense rises and falls on the thinly defended assertion that appellate review of interim relief is somehow “different” from review of relief after a final judgment.

But that brings us to the deeper problem:

Third, Steel Co.’s objection to hypothetical jurisdiction wasn’t that a final merits ruling without jurisdiction is an advisory opinion while a predictive one is fine. Scalia’s objection was about power. A court that lacks jurisdiction lacks the authority to “declare the law” at all—and a prediction about the merits is still a pronouncement on the meaning of federal law, even, as in Doe, when it comes as part of an appeal from a grant of preliminary relief. Indeed, Scalia’s whole point was that even a tentative or hypothetical judgment “comes to the same thing as an advisory opinion.” If anything, an interim ruling on the merits is more exposed to that critique, because the court is opining about a legal question it may never have had the power to touch. Even if Doe were an emergency docket ruling (and it isn’t), it seems like Steel Co. should apply, at a minimum, to any ruling that might have precedential value—because the whole point is that it can’t and shouldn’t have such effects if the court didn’t actually have jurisdiction to reach the merits. (I’ll also flag that Alito’s emphasis on “interim” relief in a merits case only reinforces several of the problems with the “interim docket” renaming enterprise.)

Fourth, and most importantly, if appellate courts “need not always start with the jurisdictional ground” when reviewing interim relief decisions in the lower courts, consider how much modern litigation against the federal government, specifically, runs through exactly that posture. Preliminary injunctions, stays, TROs, administrative stays, and the Court’s burgeoning emergency docket are all “interim relief”—so this is no narrow carve-out. Instead, Alito’s opinion would open the door to the Court jumping over jurisdictional questions to reach the merits in most of the high-stakes, fast-moving cases that define this era. (And given that most jurisdiction-stripping statutes involve claims against the federal government, it would provide the justices with yet another way to rule for the Trump administration, in particular, that shouldn’t be available under current law.)

Nor is this concern limited to Doe. As I noted above, in Malliotakis, the Court granted a stay of a state trial-court injunction in a context in which it clearly did not have jurisdiction under 28 U.S.C. § 1257 (and with Justice Alito’s concurring opinion openly distorting the procedural posture to make it seem like the Court did have that jurisdiction). In a world in which Alito’s “interim relief carve-out” to Steel Co. were a thing, the Court could have granted emergency relief on the merits even if it lacked jurisdiction to do so. That is, for lack of a better term, nuts.

The asymmetry cuts in a predictable direction. The shortcut is most useful when a court wants to deny relief to a challenger, because it can declare the claim meritless without confronting whether it ever had the power to hear it—the precise Steel Co. problem, except now the resulting pronouncements become precedents on questions like whether noncitizens have any equal protection rights at all. In that world, decisions about the scope of federal judicial power and the substance of constitutional rights will get made more often in the hurried, lightly-reasoned setting that emergency litigation invites. In other words, Part III-A of Doe would give the Court even more power not just in preliminary relief appeals, but on the emergency docket, because the formal constraints on its power would become less dispositive.

The good news is that Justices Gorsuch and Barrett, who joined every other word of Alito’s opinion in Doe, didn’t join Part III-A. That creates a bit of a lacuna, since neither explained how or why the Court could hold what it held in Part III-B, even though they must have had some theory for why there was jurisdiction to reach the merits of the Haitian plaintiffs’ equal protection claim. (That theory might have been difficult to articulate, since it’s hard to read the same statute to foreclose statutory claims but allow constitutional ones, and the only alternative would be a much more significant claim that the statute is unconstitutional insofar as it forecloses judicial review of constitutional challenges.)

But it also means, for now, that Alito’s attempt to revive hypothetical jurisdiction in Doe is not binding precedent on the lower courts. It shouldn’t be persuasive authority, either—because it just isn’t persuasive.

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We’re already approaching the length limits of a Substack post, so we’ll skip the trivia for this week. Even without trivia, I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to email me. And if you liked it, please help spread the word!

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1. The Supreme Court recognized one incredibly modest exception to Steel Co. in the Ruhrgas case, holding that courts can dismiss cases for lack of personal jurisdiction without deciding whether they also lack subject-matter jurisdiction.