Bonus 147: Shell Games and Nationwide Injunctions

The Trump administration's geographic gamesmanship with immigration detainees crystallizes the need for the Supreme Court to preserve (at least some) nationwide injunctions.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter (and unscheduled issues) will remain free for as long as I’m able to do this, I put much of Thursday’s bonus content behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit.

A “shell game” is a classic confidence trick in which an unsuspecting mark is duped into betting that he can find a small object (often a pea) supposedly hidden under one of a series of shells after the shells have been moved around. (“Three-Card Monte” is a variation on the same theme.) The scam is that, thanks to the dealer’s (literal) sleight of hand, the object isn’t actually under any of the shells—so there’s no chance that the mark will guess correctly. No matter what odds the dealer gives to the mark, he’s not going to have to pay.

I’ve been thinking about shell games a lot this week—especially as we’ve had a bevy of rulings from different lower federal courts in cases in which the Trump administration has tried to defeat, or at least slow down, judicial review by physically moving high-profile immigration detainees into and out of different geographic areas.

Just yesterday, the Second Circuit held that a federal court in Vermont did have jurisdiction to order the Trump administration to return Rümeysa Öztürk—a Tufts¹ graduate student (whose alarming arrest was captured on video)—to Vermont, because Öztürk had been transferred to an immigration detention facility in Louisiana after her lawyers had filed a habeas petition in the Green Mountain State. That ruling (which, notably, was signed by all three of the judges on the panel) came just one day after a ruling by a federal district judge in Alexandria, Virginia, that a postdoctoral fellow at Georgetown University could bring a habeas petition challenging his immigration detention in Virginia—after the government’s representations about the need to transfer him to Texas turned out to be … flawed. And a district judge in New Jersey is likewise proceeding to the merits of the habeas petition brought by Mahmoud Khalil—even though he, too, remains in immigration detention in Louisiana.

The good news in all of these developments is that the shell games failed, at least in these high-profile individualized immigration detention contexts. But what these cases really drive home, in my view, is the growing importance of nationwide (or “universal”) relief. It’s not that such relief is an unalloyed good; I remain conflicted on whether any federal judge should always have the power to enjoin any federal policy. But just as there are costs to universal relief, there are also benefits. And here, the specter of nationwide relief would make it much harder for the government to even play shell games in these cases—let alone to for it to win them. For if there’s a single case challenging a nationwide policy on a nationwide basis, the government won’t be able to thwart judicial review just by playing Whac-a-District-Court with the plaintiff.

More to the point, now is an especially critical time to underscore the significance of universal relief, for the Supreme Court is set to hear oral argument next Thursday (in the birthright citizenship cases) on whether it should narrow or get rid of nationwide injunctions. In my view, these cases—and, as I explain below the fold, the Alien Enemy Act cases—drive home how universal relief can provide a uniquely effective check on a government that is so regularly and transparently trying to manipulate procedural rules to thwart judicial review. Getting rid of nationwide injunctions now would only enable (if not affirmatively incentive) that kind of unbecoming litigation behavior on an even broader scale.

For those who are not paid subscribers, we’ll be back on Monday (if not sooner) with our regular coverage of the Court. For those who are, please read on.