Where do we go from here? The Supreme Court dropped a bombshell on Friday. It was not unexpected, but that did not make it any less dramatic.
You’ve likely already seen that decision in Trump v. Casa, the birthright citizenship case. In a 6-3 decision, the Supreme Court held that “universal” injunctions (nationwide injunctions) exceed the power of the federal courts. The decision rejects the nationwide injunctions entered by federal district judges in three different districts that halted Trump’s efforts to end birthright citizenship. Justice Amy Coney Barrett’s majority opinion granted the government’s request to stay those nationwide injunctions, but only partially. What “partially” means here is that they remain in effect to the extent necessary to provide “complete relief” to the existing plaintiffs. The cases themselves—this appeal involved only the question of whether the courts can order nationwide injunctions—now go back to the lower courts for further proceedings. As we’ve noted, the government cannily maneuvered to avoid bringing the substantive issue at the heart of the case, the president’s ability to do away with birthright citizenship, into the appeal. Although there were whispers about it around the edges, it wasn’t the issue. That’s up next. So it’s helpful to look at the exact relief the Court ordered. Here it is, as set forth by Justice Barrett:
Now, we get to the part of the decision that makes it appropriate as the topic of “The Week Ahead” column. The impact of the ruling in Trump v. Casa extends beyond this case. It applies to all cases where nationwide injunctions are currently in place. It also means litigants will lose this tool as a way of countering some of the most egregious, unconstitutional steps taken by this administration. Few things that happen quickly in a courtroom. Although lawyers will still be able to obtain temporary or preliminary injunctions on an emergency basis, they will only be applicable to individuals who are identified victims and have access to a lawyer. The decision signals the loss of one of the best tools lawyers have had in their arsenal for dealing with this administration’s constitutional excesses. It is not the only tool, but it was a significant one. Under the decision, district judges may only enter injunctive relief for the parties in front of them, or perhaps in some limited cases to larger groups where it is essential to giving the plaintiffs before the court “full relief” (stick a pin in that; what constitutes “full relief” is a question the lower courts are going to get to fairly quickly). That means individual lawsuits can be filed, districtwide injunctions may still be on the table, and some lawyers have already converted or are in the process of converting their cases to class actions. Class actions are authorized by the Federal Rules of Civil Procedure. They allow one or more plaintiffs to file a case and then ask the judge for permission to proceed on behalf of a larger “class” of people who are similarly situated, have the same claims, and will be made whole by the same relief. If you’ve ever received a notice in the mail advising you of court proceedings if you had a certain kind of car or certain kind of phone, etc., during a certain period of time, you get the idea. There are different kinds of class actions, but what is envisioned here are proceedings under Rule 23(b)(2), which allows a district judge to certify a class where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” In our scenario, the “party opposing the class” is the United States of America, as Donald Trump seems to systematically strip out basic constitutional and legal protections. The class mechanism is good insofar as it goes, but it takes time, sometimes months, to certify a class. It’s a cumbersome mechanism compared to the nimble temporary restraining order. It remains to be seen whether judges will attempt to move them more quickly under these circumstances, but by their nature, they’re going to take more time. It is possible to certify a nationwide class, although, as with nationwide injunctions, there is some criticism of these devices. At the end of a class action, the outcome applies to all members of the class and binds the defendants. To be fair, it’s not just Republicans who have questioned nationwide injunctions. Democrats looked askance as a Texas judge purported to limit access to medicated abortion. When nationwide injunctions are used to prevent the president from taking certain steps, the opposition to the decision is usually animated by politics. Justice Barrett’s criticism was grounded in our history: “Because the universal injunction lacks a historical pedigree, it falls outside the bounds of a federal court’s equitable authority under the Judiciary Act.” The Court held that since nothing like nationwide injunctions existed at the time of the founding, the courts didn’t have the power to use them now. (In footnote 10, something else we’ll put a marker on for the future, Justice Barrett noted that “Nothing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action”—this could mean there is a carve out that allows nationwide injunctions against an executive branch agency where a challenge under the APA is involved, but we’ll take that complicated subject up another day.) We can rail against her reasoning, but that is now the law. This is one of those decisions where even those who disagree with it will find a legal basis underlying it. It’s not an abrupt departure from stare decisis, or precedent, like Dobbs, the abortion decision, was. The plaintiffs argued that “the universal injunction ‘give[s] the Judiciary a powerful tool to check the Executive Branch.’” Justice Barrett’s response was that “federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them.” She concluded that “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.” The concern here extends beyond the ruling itself. It’s that it happened in this particular case. The Supreme Court has discretion over which cases to hear. It has had numerous opportunities over time to address the constitutionality of nationwide injunctions. The fact that it chose to hear it and issue this rule in this particular case is what is most concerning. What does it foreshadow? The law regarding birthright citizenship is clear and well-established. Nor can Presidents rewrite amendments to the Constitution with a stroke of a pen. So why, in this particular case, where the injunctions prevent the administration from doing something that is so clearly wrong and will be so harmful—depriving newborns of citizenship—would the Court decide it’s the right time to take the step of pushing aside the injunctions? It’s hard to believe there was a sudden upswell of concern about protecting the defenseless presidency from overreach by the courts. This case will have real impacts on real people’s lives 30 days from now, and when, or rather if (because there are concerns the solicitor general will posture to keep the substantive birthright citizenship issue out of the sights of the Court) the Court decides that Trump was wrong a couple of years down the road, many people will have been damaged in ways that will be hard to undo. Not all of them will have the resources to find a lawyer and file a lawsuit of their own. Dismissing the nationwide injunctions makes Trump’s executive order ending birthright citizenship the law of the land in 30 days, unless something else happens. And if you’re feeling some deja vu, so am I. It reminds me of when Texas passed its vigilante justice law that allowed private citizens and government officials alike to pursue women who’d had abortions in the courts, and the Supreme Court, instead of letting a decision enjoining it stay in place, told Texas, “Naw, go ahead.” That was when we saw the writing on the wall for Roe v. Wade and knew it was only a matter of time. It’s hard to believe that could be the case here, that the Court would really sign off on a president’s ability to change the law with a wave of his newly minted magic wand (presidents didn’t have one of those at the time of the founding, but oh well). However, for those of us who didn’t believe a president was entitled to immunity from prosecution if he used SEAL Team Six to execute a political rival, well, the Supreme Court had news when it decided the presidential immunity case. Nothing is as certain as it used to be. The concern here is, of course, about more than just the ruling in Casa, it’s about what comes next. We will begin to find that out pretty quickly. Lawyers will be back in court this week, and we will watch the proceedings closely to see how district judges react to the Supreme Court’s ruling. In some ways, this is the Supreme Court putting the lower courts in their place and telling them to stay there. Justice Barrett wrote that the lower courts shouldn’t exceed their authority, even when a president does. “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.” That’s tantamount to saying there’s little that can be done about a president who runs amuck, except in a piecemeal fashion. The dissents to the opinion are brilliant and sad at the same time and have been widely quoted, but I’d encourage you to read them for yourself. Sometimes, the story of a case and an understanding of the rule of law it imposes are best understood through the dissents. I find that to be the case here. Justice Ginsburg used to say that dissents are written for the future. One hopes that is the case here and there will come a time when we will listen to the Justices who wrote in dissent. Justice Sotomayor exposes the government’s devious strategy—attacking the nationwide injunction mechanism in hopes that it can, as it now will be able to, exploit a ruling that cuts across more cases than just this one and allows it to continue dismantling democracy. She explains: The Government does not ask for complete stays of the injunctions, as it ordinarily does before this Court. Why? The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice. So the Government instead tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone. Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit. The gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along. A majority of this Court decides that these applications, of all cases, provide the appropriate occasion to resolve the question of universal injunctions and end the centuries-old practice once and for all. …No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship. The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit. Because I will not be complicit in so grave an attack on our system of law, I dissent.” Justice Jackson writes: “I lament that the majority is so caught up in minutiae of the Government’s self-serving, finger-pointing arguments that it misses the plot. The majority forgets (or ignores) that ‘[w]ith all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.’ … Tragically, the majority also shuns this prescient warning: Even if ‘[s]uch institutions may be destined to pass away,’ ‘it is the duty of the Court to be last, not first, to give them up.’” There is no denying our democracy is in a difficult place. But do not be hopeless, and do not give up. That is, quite literally, what this administration wants us to do. If anything, this decision makes it even more important for us to continue our citizen-led democracy movement. Keep protesting, stay informed, and prepare for the midterm elections. “A Republic if you can keep it,” is now. We’re in this together, Joyce P.S.: If you value fact-based legal analysis from a former United States Attorney with 25 years of experience at DOJ, I hope you’ll consider subscribing to Civil Discourse. Cut through the noise. Understand what’s really happening—and why it matters. You're currently a free subscriber to Civil Discourse with Joyce Vance . For the full experience, upgrade your subscription.
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Sunday, June 29, 2025
The Week Ahead
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