The Supreme Court stripped judges of a powerful tool to fight Trump's autocracy. Congress must give it back.

Boston Globe

a day ago

But now they can't. Based on the Supreme Court's reading of a 1789 law, lower courts can now only take such action on specific cases before them, meaning that even clear-cut violations of the law could continue against those without the wherewithal to go to court.
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Congress can and must correct this mistake. Lawmakers should pass legislation that protects judges' ability to provide robust equitable remedies when people's rights are threatened by legally or constitutionally dubious administration actions.
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Now, it's true that there have been problems with universal injunctions, and judges have sometimes misused them. But the court's ruling took a sledgehammer to a system that should have been fixed by Congress with a scalpel.
And in the case of Trump, the ruling opens the door for him to strip birthright citizenship from American-born babies, continue whisking migrants to countries foreign to them with little notice and without due process, and engage in other actions that threaten people's rights and freedoms.
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The court's 6-3 ideologically split opinion, authored by Justice Amy Coney Barrett, was based on the majority's interpretation of the Judiciary Act of 1789. The justices considered if the statute authorizes broad preliminary injunctions like that issued by Boston-based US District Court Justice Brian Murphy, which paused Trump's executive order to deny birthright citizenship to children born to some migrants.
'The answer is no,' Barrett wrote for the majority.
Instead, the court held, challengers of the policy who have standing to bring suit can only obtain such preliminary relief for themselves.
'[P]rohibiting enforcement of the Executive Order against the child of an individual pregnant plaintiff will give that plaintiff complete relief: Her child will not be denied citizenship,' Barrett wrote. 'And extending the injunction to cover everyone similarly situated would not render her relief any more complete.'
This is untenable, and will only lead to a cruel game of judicial whack-a-mole that fails to provide adequate protection to those most imperiled by these policies. The onus should not fall on those who are targeted by these policies to fend for themselves. It should fall on the administration to show that it is acting in a lawful way. The court did just the opposite, holding that it is the administration that will likely suffer irreparable harm if courts dare to exercise their authority as a check on the executive.
The overuse of universal injunctions has been an issue of increasing bipartisan concern, particularly since the Obama administration. In the last two decades, both the number of executive orders issued and the number of temporary injections blocking them have steadily ballooned.
But the number of executive orders Trump has issued in his second term is without historical precedent, even exceeding Franklin Delano Roosevelt, who issued a flurry of edicts in an effort to implement his New Deal agenda.
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And many of Trump's orders are based on strained legal or constitutional arguments, such as the administration's claim that the 14th Amendment's birthright citizenship protection only extended to children of enslaved people, that the Alien Enemies Act allows migrants to be deported without due process, or that the Immigration and Nationality Act allows the government to send migrants to countries where they've never been and to which they have no connection.
Judges must have the ability to decide when relief extending beyond named plaintiffs is warranted. Should there be limits on that power? Yes, and Congress can include them in its bill. It can also underscore that states can still seek statewide relief from policies they can demonstrate harm all of their residents, and ease the process for class actions to be formed at the earliest stages of litigation to give relief to groups of people who demonstrate a need for protection. Judges handling the flurry of Trump-related litigation need more tools, not fewer. It's lawmakers' duty to give those tools to them.
The Supreme Court must also swiftly take up and decide the constitutional and legal questions presented by Trump's orders. The justices could have rejected the Trump administration's erroneously limited reading of the 14th Amendment's birthright citizenship protections, but opted instead to leave that question for another day. But given the risks of the order, there is no time like the present.
And in the meantime, federal judges must do all they can to help challengers who will be harmed by Trump's policies. The Supreme Court did not tie judges' hands completely when it comes to equitable relief. Quick certification of class actions and swiftly granting relief to states that demonstrate the peril to their residents are among the arrows still in judges' quivers. They must use them.
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We are not as bound or doomed by history as the Supreme Court's justices believe. The public needs to demand that members of the legislative and judiciary branches stand up and reclaim their powers to check a president who believes he is above the law and the Constitution.
Editorials represent the views of the Boston Globe Editorial Board. Follow us