Today, the Supreme Court discovered that district court judges have no power to issue nationwide injunctions. It’s a brand new policy they unearthed after cheerfully blessing four years of nationwide injunctions issued by some wingnut in Amarillo. Justice Amy Coney Barrett’s 6-3 opinion cabins lower federal courts to issuing relief “to the plaintiffs before the court.” So unless you’re willing to sue, the government can violate your rights at will.
The six conservatives made this miraculous discovery in Trump v. CASA, a challenge to President Trump’s executive order banning birthright citizenship. And the president wasted no time celebrating his victory over the Fourteenth Amendment.
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Suck it, Wong Kim Ark!
The Supreme Court greenlit the administration’s plans to deny social security numbers and passports to thousands of American citizens. They’ll decide whether that’s legal some time next year.
Justice Barrett insists that plaintiffs are no worse off than they were yesterday: “Here, prohibiting 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.” But with respect to the rest of the country, “[e]xtending the injunction to cover all other similarly situated individuals would not render her relief any more complete.” So, unless and until each and every undocumented pregnant person in the country files a lawsuit — conveniently outing herself as someone to be deported post haste — federal courts are powerless to stop the Trump administration from violating the Constitution.
The opinion is larded with a waxy coating of originalism, rhetorical vaseline on the lens, softening the gross illegality and abject cruelty that is the conservative project. The issue isn’t un-personing babies, but rather “whether universal injunctions are sufficiently ‘analogous’ to the relief issued by the High Court of Chancery in England” in 1798. And — oh, too bad! —the answer they came up with was that the “bill of peace” used by a bunch of dudes in powdered wigs in the 18th century to issue nationwide injunctions isn’t quite close enough to count.
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Writing for the Court’s liberal dissenters, Justice Ketanji Brown Jackson ripped the majority’s deliberate use of “legalese” as a “smokescreen” designed to mask the “far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?” Apparently not.
She also notes that the majority was so busy on its field trip to Ye Old Englande, that it couldn’t be bothered with the threshold question of whether the government met its burden to justify the “extraordinary relief” of staying a lower court’s order: likelihood of success on the merits and “irreparable harm” in the interim absent such relief.
The majority devotes exactly one sentence to that question in its 30-page opinion, asserting that universal injunctions “improperly intrude” on the executive branch by preventing the government from “enforcing its policies against nonparties.”
As Justice Sotomayor points out, the government has no right to enforce an unconstitutional policy against anyone, regardless as to whether or not that person is a party before the court or not.
“Suppose an executive order barred women from receiving unemployment benefits or black citizens from voting,” she asks. “Is the Government irreparably harmed, and entitled to emergency relief, by a district court order universally enjoining such policies? The majority, apparently, would say yes.”
The majority, in fact, said nothing at all, handwaving away the question of whether the birthright citizenship order is unconstitutional as “not before us,” and therefore “we take no position on whether the dissent’s analysis is right.” Indeed, they seem wholly uninterested in ensuring that the president follow the law at all.
“No one disputes that the Executive has a duty to follow the law,” Justice Barrett chides the dissent. “But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so.” In support of this proposition, she cites Marbury v. Madison.
Oh, you thought the holding of that case was that “It is emphatically the province and duty of the judicial department to say what the law is?”
Well, not any more.
Liz Dye and Andrew Torrez produce the Law and Chaos Substack and podcast.