SCOTUS Ruling in Universal Injunction Case Treats Trump Like a Normal President

Much will no doubt be written (perhaps including more thoughts from me) about today's SCOTUS ruling in Trump v. CASA. Headline writers predictably will--indeed already have--tell the public that the Supreme Court expressed a favorable view on the merits of the Trump administration's executive order restricting birthright citizenship, even though the Court specifically disclaims any view on the merits.

In today's column, I raise two questions: (1) Is the decision ideological? (Answer: yes). (2) Is the decision practically important, given the workaround suggested in Justice Kavanaugh's concurrence? (Answer: probably yes, given doubts about whether the workaround will work.)

(1) There will be some gnashing of teeth over whether the decision is ideologically based. It's true that the upshot of the ruling is to limit the ability of federal district courts to constrain the Trump administration, but as the majority opinion of Justice Barrett and the concurrences illustrate, Democrats were frustrated by universal injunctions during the Obama and Biden administrations. One might think that the universal injunction question is not left/right ideological but depends on which party controls the White House. To my mind, however, the case does have an ideological valence for three reasons.

First, other things being equal, liberals favor broader standing rules and broader remedial options for federal courts than conservatives do.

Second, the Trump v. CASA majority applies an ostensibly historical test for deciding whether district courts have the power to issue universal injunctions, relying on the Grupo Mexicano precedent. Absent congressional authorization for a particular equitable remedy, federal courts may issue it only if it is the kind of remedy that courts of equity issued at the Founding. As a general matter and in today's ruling, liberals are both more skeptical than conservatives of historical tests and tend to want to apply such tests (if at all) at a higher level of generality.

Third, the current administration is a unique threat to the rule of law. Most administrations--Democratic or Republican--will make good-faith efforts to comply with the law, and certainly will typically comply with court orders. Not so the Trump administration, which goes well beyond any prior administration both in the aggressiveness of its substantive legal positions and in its willingness to defy the courts. Removal of a useful tool for the judiciary to constrain the president at this particular moment is, as Justice Jackson says, "an existential threat to the rule of law"--but not because universal injunctions are essential to the rule of law in general. It's such a threat because it empowers an administration of lawbreakers led by a convicted criminal and insurrectionist to further evade the law. To be clear, that's not a conservative position in any meaningful sense, but it does explain the ideological breakdown insofar as the Court's Democratic appointees recognize, as its Republican appointees do not, that Donald Trump is not a normal president.

(2) In his concurrence, Justice Kavanaugh argues that whenever Congress enacts a major new law or the executive branch adopts a major new policy of questionable legality, there should be a uniform national approach to whether it can be implemented during the interim period between the law's enactment or the policy's adoption and final adjudication. He further argues that the Supreme Court is the best (and perhaps the only) court that can provide for such a uniform approach.

Readers might be wondering how that is consistent with the majority opinion that Justice Kavanaugh joins. Justice Barrett says for the Court (in an opinion Justice Kavanaugh joins in full) that courts of equity at the Founding lacked the authority to issue universal injunctions and that therefore federal courts lack that power today (because it has not been granted by Congress). But the Supreme Court is a federal court, so how can it have such a power?

The answer is that Justice Kavanaugh does not think SCOTUS needs to rely on universal injunctions. Rather, when the Supreme Court decides on the validity of a law or policy, its ruling binds lower courts as a matter of precedent, so that a uniform rule is established as a practical matter.

One potential objection to that approach is that in reviewing the grant or denial of interim relief, the Supreme Court--like the lower courts--assesses only the likelihood of success on the merits, not the merits themselves. Thus, a decision to grant or deny a preliminary injunction lacks the full precedential force of a decision on the merits.

I don't regard that objection as very strong, however, because the SCOTUS ruling in such cases is precedential on the question of likelihood of success on the merits itself. Thus, if SCOTUS has ruled that a preliminary injunction was proper in one case challenging some statute or policy, lower courts in other cases involving challenges to that statute or policy will be bound by the ruling in their own consideration of the appropriateness of interim relief.

Nevertheless, I have serious doubts about the likely efficacy of Justice Kavanaugh's workaround in the present moment. If the Supreme Court holds that some executive policy is unlawful and that preliminary relief against it was therefore justified, a normal administration would not thereafter attempt to enforce the policy, even if the case in which the Supreme Court so holds did not involve universal or class relief. But we do not have a normal administration, and precedents are not self-executing.

The Court allows for the possibility of the certification of a class action under Federal Rule of Civil Procedure 23 but only if, as Justice Alito says in his concurrence, the rule's "rigorous" standards are met. So consider what will happen when the Court next upholds (or reverses the denial of) preliminary relief against the Trump administration's enforcement of either the birthright citizenship executive order or some other unlawful executive order in a non-class case involving only a handful of private plaintiffs. What is to stop the administration from continuing to enforce the unlawful policy against every non-plaintiff even after the Supreme Court ruling? Such enforcement would not violate any court order. An administration that doesn't fully comply with court orders that clearly apply to it would not likely hesitate to proceed where court orders don't apply.

To be sure, anyone against whom the policy is enforced could sue to block it and would obtain relief based on the SCOTUS precedent. But enforcement targets would need knowledge, time, and resources to bring their lawsuits, and many of the Trump policies--especially with respect to immigration--may be executed before they have a chance to get to court even if they have the wherewithal to do so.

Accordingly, Justice Kavanaugh's workaround--in which SCOTUS is very active on the emergency docket--only works against a normal administration. Perhaps some day we once again will have a normal generally law-abiding president and administration. But in the meantime, the workaround probably won't work.

-- Michael C. Dorf