A blow to judicial power and a win for Donald Trump

Mint

3 days ago

A year ago John Sauer, then Donald Trump's personal lawyer, persuaded six justices to hand the presidential candidate sweeping immunity from criminal prosecution. On June 27th Mr Sauer, now Mr Trump's solicitor general, notched another huge victory for his boss—one that will enhance the power of future presidents, too. Whereas Trump v United States articulated a capacious standard of presidential immunity and cleared the way for Mr Trump to complete his campaign free of legal jeopardy, Trump v CASA liberates him from nationwide injunctions—the most potent tool judges have been using to thwart his agenda. It was, as Mr Trump wrote on social media, a 'GIANT WIN'.
On the surface, Trump v CASA was about Mr Trump's executive order denying citizenship to babies born to undocumented immigrants and temporary-visa holders. That proclamation, issued on his first day back in office, departed from more than 125 years of understanding that the 14th amendment promises citizenship to 'all persons born or naturalised' in America. Three district courts issued nationwide injunctions blocking the order, with one judge (appointed by Ronald Reagan) calling it 'blatantly unconstitutional'.
But when the Department of Justice (DoJ) approached the Supreme Court, it did not request a wholesale reversal of any of these decisions—an apparent recognition that the justices, too, would likely see the order as unconstitutional. Instead the DoJ asked the justices to limit the injunctions to the litigants who brought the cases: a group of pregnant women, the members of two immigrants-right organisations and 22 states, plus San Francisco and the District of Columbia. By doing so the DoJ invited the justices to turn from the question of 'birthright citizenship' to the broader question of district judges usurping executive power by issuing nationwide or 'universal' injunctions.
The tack may have been cynical, but it was effective. Justice Amy Coney Barrett's 26-page majority opinion is an indictment of such injunctions. The trend of individual district-court judges blocking presidential actions has held 'across administrations', wrote Justice Barrett. During the first 100 days of the second Trump administration, the tool was used about 25 times. Congress has granted judges 'no such power', she argued, and universal injunctions are not a valid application of the judicial role. The practice was unheard of until the 20th century. 'No one disputes that the executive has a duty to follow the law,' she wrote. 'But the judiciary does not have unbridled authority to enforce this obligation'.
The three liberal justices dissented vigorously. Justice Sonia Sotomayor warned that '[n]o right is safe in the new legal regime' of Trump v CASA. Justice Ketanji Brown Jackson wrote that the majority's decision gives the president authority 'to violate the constitution with respect to anyone who has not yet sued', posing 'an existential threat to the rule of law'. Soon, she cautioned, 'executive power will become completely uncontainable, and our beloved constitutional republic will be no more'. To this, Justice Barrett had a rejoinder: 'When a court concludes that the executive branch has acted unlawfully, the answer is not for the court to exceed its power, too.'
The blast zone from Trump v CASA could be wide. As the majority noted, judges across America have been issuing nationwide injunctions to stymie a host of Mr Trump's policies, from eliminating foreign aid appropriated by Congress to imposing new voter-identification rules. The DoJ is expected to promptly file motions to lift the injunctions. Moving forward, America's 677 district-court judges will be deprived of a particularly powerful tool.
But there are other ways that the judicial system can deal with broad violations of the constitution or individual rights. One is class-action lawsuits, whereby one or several named plaintiffs, or an organisation, sue on behalf of similarly situated plaintiffs across America. All pregnant women without legal status, for example, could be a 'class' that courts recognise as entitled to relief from Mr Trump's birthright-citizenship proclamation. But this form of litigation has high procedural hurdles and classes can take months to certify—a process the Supreme Court has made increasingly difficult in recent years.
In the case of birthright citizenship, there is another possibility that Justice Barrett's opinion explicitly leaves open to the lower courts. The cost and administrative burden of tracking the immigration status of babies traveling around the country, for example, could make anything less than a comprehensive bar on Mr Trump's policy unworkable for the 22 states seeking relief. So these states have a plausible argument that the only injunction that can ease their burden is one that blocks Mr Trump's executive order everywhere.
Justice Barrett closed her opinion by delaying implementation of the court's decision for 30 days. That gives the plaintiffs until July 27th to hasten back to district courts to file class-action cases or argue that a blanket injunction against Mr Trump's policies is required to grant the suing parties 'complete relief'. If neither of these efforts is successful, the country could be left with a patchwork of rules that grants citizenship to the baby of an undocumented mother born in Minnesota, but not one born in Mississippi (at least until the constitutionality of Mr Trump's executive order is decided by the high court).
The 6-3 split in Trump v CASA reveals a court that remains deeply divided over executive power. For those hoping to challenge the president's more aggressive policies, the courthouse doors remain open—but the path to meaningful relief is considerably narrower.