The Nationwide Injunction in Trump v. CASA
Supreme Court Justices have an unfortunate tendency to pretend that difficult issues are easy. Both Justice Barrett's majority opinion and Justice Sotomayor's dissent in Trump v. CASA, Inc. commit this sin. (For ease of presentation, I'll focus on the majority and the main dissent, but the same could be said for the other opinions, as well.)
The case asked whether district courts had overstepped in issuing nationwide injunctions halting the implementation and enforcement of President Trump's birthright citizenship Executive Order. That Executive Order purports to deny U.S. citizenship to persons born in this country (A) if the person's mother was unlawfully present in the U.S. and the father was not a U.S. citizen or lawful permanent resident, or (B) if the person's mother's presence in the U.S. was lawful but temporary and the person's father was not a U.S. citizen or permanent lawful resident. Plaintiffs argued that the E.O. violated the Fourteenth Amendment's stipulation that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
As expected, the Court's opinion focused not on the merits issue, but the remedial one. When, if at all, may lower courts issue nationwide injunctions (otherwise known as "universal injunctions")? The Court sharply narrowed the availability of nationwide injunctions, holding that nationwide injunctions are only permissible if they are necessary to provide complete relief to each plaintiff with standing to sue. (As Professor Vladeck notes, a paradigmatic example of when an individual plaintiff may need an order extending a remedy to people who are not parties to the litigation is in a redistricting case when a state may have to redraw a statewide map to redress a single plaintiff's harm.)
On the day that Trump v. CASA was handed down, Professor Dorf argued that the ruling might have made more sense if issued during the course of a "normal" presidency, when the executive branch could be expected to comply with court orders. Towards the end of this essay, I'll say a few words about how the Roberts Court may have calibrated its decision to the Trump administration, but I'll focus my attention principally on the doctrinal question of nationwide injunctions more generally.
Though Justice Barrett (correctly in my view) identified serious problems with the sharp rise of nationwide injunctions in recent decades, her majority opinion was nevertheless flawed in several important respects. (Her unpersuasive opinion comes as a disappointment given her very thoughtful, fair-minded questions at oral argument in this case.)
Justice Barrett's opinion for the Court placed great weight on the scope of equity in 1789, when Congress passed the First Judiciary Act. Its reasoning was that the Judiciary Act endowed federal courts with jurisdiction over "all suits...in equity," so courts' equitable powers today must be congruent with those powers at the founding. Citing the Court's 1999 decision in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., Justice Barrett emphasized that the statutory grant of equitable authority "encompasses only those sorts of equitable remedies 'traditionally accorded by courts of equity' at our country's inception.'" (Justice Scalia, for whom Barrett clerked, wrote the Grupo Mexicano opinion.)
As Justice Barrett herself acknowledges, though, equity is supposed to be a flexible remedy. It borders on incoherent to admit, on the one hand, that equity is flexible, but to say, on the other hand, that it can't exceed its 18th century contours. History-and-tradition analysis is often problematic (in part because what counts as "history" is so easily manipulated), but it is especially so here. The whole point of equity is that it allows courts to craft a suitable remedy when remedies at law are inadequate. As Justice Sotomayor explained in dissent (quoting Justice Story), equity courts could "adapt their decrees to all the varieties of circumstances, which may arise, and adjust them to all the peculiar rights of all the parties in interest."
The statutory grant of equity jurisdiction, then, likely encompassed not only courts' remedial authority to deal with problems with which the First Congress was familiar but new problems that would arise down the road. The majority (and the Grupo Mexicano precedent upon which it relies) muddle this tradition by effectively holding that novel equitable remedies are off the table, even if they might address situations that never would have arisen in 1789. Justice Barrett is correct, of course, that there are limits on courts' powers, including their remedial authority, but in concluding that the first Judiciary Act forever froze courts' equitable power, she misuses the history.
A related flaw of the majority opinion is that it tethers the federal courts' equitable powers to founding era practices, even though the power of the executive branch (and the federal government generally) has grown exponentially since then. The Court's reasoning warps separation of powers, allowing the presidency to aggrandize itself through the generations but insisting that the judiciary's authority must remain frozen in "amber" (to borrow Justice Sotomayor's wording). A more coherent use of history in legal interpretation is what Professor Lessig calls "fidelity in translation," which posits that faithful constitutional interpreters must account for changes in context when they use history. In completely ignoring the tremendous growth of presidential power since the late 18th century, the Court completely ignores massive contextual changes. Judges ought not use history so mindlessly.
As the dissent points out, the Court's rejection of the universal injunction is especially bizarre in this case, given that the Executive Order is blatantly unconstitutional under just about every constitutional modality. As a matter of constitutional text, precedent, history, and longstanding practice, this is an unusually easy case (or, at least, seems to be--more on that below). The government argues that undocumented migrants are "not subject to the jurisdiction" of the United States, but the Court already rejected that argument in United States v. Wong Kim Ark. The Court, of course, could overrule Wong Kim Ark, but, in the absence of a massive change in constitutional law, it is strange that the Court would find overbroad a lower court injunction that merely says the government cannot do something that the Supreme Court has already said the government cannot do. It is even odder that the Court does not adequately address this argument.
Phrased differently, even though nationwide injunctions can often be very problematic (a point the dissent shortchanges), the Court fails to explain why such a remedy is inappropriate in this case where the President has unilaterally tried to override clear statements from both Congress (the Nationality Act of 1940) and the judiciary (Wong Kim Ark) on a point of law that has been settled for well over a century. In this respect, the Court's decision mistakenly treated this as a normal executive order, when it was anything but.
Without a nationwide injunction, plaintiffs in many parts of the country will have to file their own suits to protect their rights (at least plaintiffs in states without statewide relief). For this issue and others, the Court's approach invites a flood of litigation without grappling with potential judicial capacity problems. Nor does it grapple with the fact that some affected persons may lack the knowledge or resources to bring suit to protect their rights. Depending on how events play out, it is plausible that in the coming months some persons born in the United States to undocumented mothers may have the benefits of U.S. citizenship whereas other similarly situated newly born persons may not (at least temporarily). This inequity could cause grave injustice to individuals and their families. It could also create administrative chaos burdening federal, state, and local officials. What happens, for instance, if a child born to an undocumented mother and father moves from a state without a judicial order protecting birthright citizenship to a state with such an order (or vice versa)? More historically than practically minded, Justice Barrett's majority opinion does not grapple adequately with those complications or with serious arguments in favor of nationwide injunctions in certain circumstances.
At the same time, neither does Justice Sotomayor's dissent adequately address universal injunctions' potential for mischief. Nationwide injunctions can halt even legitimate executive or legislative policies due to a single (potentially biased) federal district judge's views. Consequently, it encourages forum shopping as plaintiffs seek out the "best" judge or district in the country for their issue. And, as the majority explains, nationwide injunctions often aren't necessary to provide the plaintiffs complete relief. (Whether they were necessary in this case remains an open question about which the majority could have spoken more clearly.) While Justice Sotomayor is correct that nationwide injunctions in this litigation do not seem problematic, she didn't really address the broader concern that they often do.
Nor did Justice Sotomayor articulate a limiting principle for the use of nationwide injunctions. It's hard to believe that she thinks that nationwide injunctions are always appropriate. Given her objection to the majority's cramped understanding of the nationwide injunction, it would have been helpful if she had offered more guidance for when she would permit their use.
Towards the end of her dissent, Justice Sotomayor does gesture vaguely towards a standard, writing, "If there is a genuine lack of clarity as to the lawfulness of challenged Government action, district courts may well abuse their discretion by reflexively issuing universal injunctions." If that is the standard, though, then the disagreement between the majority and dissent might be pretty narrow. In many, perhaps most, cases, there is "a genuine lack of clarity as to the lawfulness of challenged Government action." Of course, it's unclear what constitutes "a genuine lack of clarity," but, oftentimes, there are plausible, even strong, arguments on both sides of the ledger. If, in fact, a universal injunction is inappropriate in such cases, then perhaps the nine Justices agree that universal injunctions should be the rare exception, not the rule. It might be comforting to think that the distance between the majority and dissent is this small, but the tone of the opinions certainly does not leave that impression.
If there is lingering confusion, it might be partially because this is a bizarre case. One great irony here is that the Court resolved a very difficult remedial question to avoid deciding an easy merits one. Another irony is that the Court's ostensible resolution of that procedural question raises but does not help resolve many more difficult questions. How should courts determine whether a nationwide injunction is necessary to afford plaintiffs complete relief? Is this such a case? Might plaintiffs in this and other cases meet Rule 23's stringent certification requirements? And might the Rule 23 issue inform whether a nationwide injunction is "necessary" to obtain complete relief? (In his concurrence, Justice Alito emphasized the high bars for class certification, urging district courts to "not view today's decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23." If four of his colleagues agree with him, Rule 23 may provide only an illusory alternative.)
Why might the Court have turned an easy case into a difficult one? One answer is that the Court answered the question the government brought to it. That's technically correct, but the Court is pretty good at shaping its docket to decide the issues it wants to decide, so there's probably more going on here.
A different explanation is that a majority of the Court was determined to address the problem of nationwide injunctions against Trump administration policies, and this was the first case it could take to resolve that issue expeditiously. This is quite plausible, but it doesn't reflect well on the Court. For one, if you're going to put your foot down against universal injunctions, it's weird (and inefficient) to do so in a case where such a remedy might be justified. Moreover, there were several nationwide injunctions handed down against Obama and Biden policies, and the Court didn't race to rule on the propriety of nationwide injunctions then, even though the merits issues were usually substantially closer legal questions than that presented in Trump v. CASA. In fairness, the Court did reverse some lower court judges who had overstepped in ruling against those Democratic administrations, but it seemed like it was in no hurry to address the threat nationwide injunctions posed to those presidents' policies.
The timing of the Court's decision to finally wade into the problem of nationwide injunctions now is especially suspect given that, as Professor Dorf wrote last week, we do not have a normal President. To the contrary, President Trump is uniquely contemptuous of the rule of law. All presidents push legal boundaries, but Trump does not seem to care about the law at all. Perhaps most worrisome, he uses power to try to punish dissent, attacking universities, law firms, and journalists. He also threatens members of Congress who thwart his will. Those threats have been successful; Congress cannot be considered a meaningful check on presidential power. Likewise, the President has sidelined the Department of Justice's Office of Legal Counsel, thus sweeping aside a potential internal guardrail against executive abuse. Collectively, these measures have not only aggrandized the administration's power but also reduced the possibility of meaningful checks on executive abuse. In light of this context, judicial checks are more important than ever. This is not to say that universal injunctions are not problematic in ways, but the Court's opinion treats the issue as an abstract intellectual exercise completely divorced from this moment in history.
Of course, another possible reason why the Court decided this case as it did is that some or many of the Justices don't see the merits of birthright citizenship as an easy at all. Perhaps there are some votes to overturn Wong Kim Ark. Perhaps some Justices buy the administration's argument that children born within the United States to undocumented parents are somehow not subject to its jurisdiction. Given constitutional text, precedent, and history, it seems unlikely that this position would have five votes, but it is not impossible. This Court has certainly not been shy about overruling precedent, and a lesson from Trump v. United States is that it sometimes rejects the common wisdom.
Yet another possibility is that the Roberts Court wants to avoid too many direct conflicts with the Trump administration. President Trump has repeatedly castigated courts that have ruled against him, even calling for judges to be impeached. The administration has repeatedly challenged judicial authority and suggested that it might ignore rulings with which it disagrees. Wary of a direct confrontation with the President, the Court might be looking for a way to defuse the birthright citizenship issue, to give Trump what looks like a win while forcing lower courts to do the dirty work of ruling against him. The merits issue, of course, may well get back to the Supreme Court, but if it does so after even more lower courts have struck down the E.O., the Court may think it has more "cover" for invalidating it.
Predictably, some media coverage overstated the wrongness of the Court's opinion. Justice Barrett's opinion, as I have argued, was flawed and myopic in serious ways, but she also raised important, non-frivolous concerns about the use of nationwide injunctions. For her part, Justice Sotomayor was correct to recognize that in this case the remedial question was bound up with the merits, but she didn't really grapple with the harms nationwide injunctions can cause in some circumstances. The full implications of Trump v. CASA won't be apparent until we see how the courts, including the Supreme Court, handle these issues moving forward, but this wasn't the Justices' finest hour.
--Eric Berger