Can the courts stop a lawbreaking president from taking away people's rights? Yes. But only one plaintiff at a time.

     "The Court took the case specifically to decide the proper scope of injunctions that command federal officials to abide by the law." 

                   Scott Nelson

White House media announcement

Democrats didn't like that anti-abortion plaintiffs would file cases of national significance in, of all places, a federal district court in Amarillo, Texas. The one judge in that district is an arch-conservative and abortion opponent. The plaintiffs were forum shopping. Now it is Trump's turn to be unhappy. Trump did not like that multiple judges in federal courts across the country issued nationwide injunctions blocking enforcement of his executive orders, including the one blocking the 14th Amendment's birthright citizenship. 

I asked Scott L. Nelson if he could explain what the Supreme Court did this week. Unlike many of my guest post writers, Scott Nelson is not a college classmate. He is a decade too young to be in the class of 1971.  He is a retired attorney with Public Citizen Litigation Group, a public-interest law practice in Washington, D.C., where he specialized in Supreme Court practice. He was a law clerk for Supreme Court Justice Byron White from 1984-86 after graduating from Harvard Law School, where he was president of the Harvard Law Review. He was born and raised in Medford, Oregon, and currently lives in Ashland, Oregon.

Guest Post by Scott Nelson

Even well-informed people who knew the Supreme Court was considering a case involving a challenge to President Trump’s executive order purporting to eliminate “birthright” citizenship may have been surprised Friday when the Court issued its opinion in the case without deciding whether Trump’s order is unconstitutional. Instead, the Court decided something else altogether: that federal courts can’t issue orders designed to protect people who aren’t parties to the cases before them from unconstitutional or illegal actions by federal officials.

Those who study the Supreme Court closely, and especially lawyers well versed in the issues posed by cases challenging federal government actions, weren’t surprised either by the Court’s focus on a procedural issue rather than the underlying constitutional question, or by the way the Court decided that issue. The Court took the case specifically to decide the proper scope of injunctions that command federal officials to abide by the law, and a number of Justices in the Court’s conservative majority have long sent signals that they are inclined to rein in the power of lower courts to issue broad, “universal” injunctions that extend beyond the parties to a case.

The Court’s decision will significantly affect cases brought against Trump’s executive orders, as well as the actions of future Presidents, and will make the process of settling questions of national importance slower and more cumbersome. In the end, however, the decision won’t stop courts from hearing challenges to unconstitutional executive branch actions, and the Supreme Court will ultimately be able to provide definitive answers that will settle issues such as birthright citizenship for the nation as a whole. A case involving the merits of the birthright citizenship issue, in particular, is likely to reach the Court sooner or later, and a decision by the Court on that issue will be binding nationwide even if it does not result in an injunction that, as a formal matter, applies to people other than the parties to the case.

To help explain all this, it’s useful to briefly review what this case (called Trump v. CASA, Inc.) was about. The 14th Amendment to the U.S. Constitution says, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Based on its words and on Supreme Court decisions that interpreted it long ago, the 14th Amendment has been understood for many decades to mean that children born to immigrants on U.S. soil are citizens even if their immigrant parents are not—and even if the parents are here illegally. A birth certificate showing a person was born here has long been good enough to get her a U.S. passport and entitle her to vote and exercise all the other rights and privileges of citizenship.

However, some lawyers and others aligned with the Trump Administration’s ideology have argued that children of aliens who are not lawful permanent residents are not “subject to the jurisdiction” of the United States and thus should not be considered citizens under the 14th Amendment even if they were born here. Shortly after taking office, President Trump signed an executive order that adopted that view and directed that the federal government no longer accept birth in the United States as proof of citizenship if neither parent was a citizen or lawful permanent resident.

A number of individuals, organizations, and state governments filed several lawsuits challenging the executive order and asking the courts to issue injunctions preventing federal officials from taking any action to implement it. In three cases, the lower courts issued preliminary injunctions that did just that, based on the courts’ determination that the plaintiffs were likely to succeed in their challenges and that the injunctions were necessary to prevent irreparable injury to the plaintiffs during the time it would take the courts to reach a final determination of the constitutionality of the executive order. Those injunctions didn’t just order federal officials not to enforce the executive order against the specific people who brought the lawsuits; instead, they said that the order couldn’t be applied to anyone, anywhere in the country.

The federal government asked the Supreme Court to take up the cases not to decide the constitutionality of the executive order, which the lower courts themselves hadn’t finally decided, but only to consider whether an injunction can be designed to protect people who aren’t parties to a case in circumstances where a narrower order would fully protect the people who are parties. The Supreme Court agreed to take the case because many of the Justices had become concerned in recent years about individual federal judges issuing “universal injunctions” that control how federal officers must behave toward everyone in the country. As Justice Barrett noted in her opinion in the Trump v. CASAcase, the Biden Administration had also been the target of many such injunctions (often issued by federal courts in Texas), and the Justice Department under both Democratic and Republican administrations had argued that such injunctions are improper.

To understand the issue clearly, consider a hypothetical lawsuit brought on behalf of Jane Doe, a child born in the United States to two undocumented immigrants. Jane wants to establish that the federal government must treat her as a citizen and issue her a U.S. passport so that if her parents leave the country and take her with them, she can return here when she is old enough to live on her own. She asks for an injunction that prevents the government from applying the executive order to her or to anyone else born in the United States. The government’s position in the Trump v. CASA case was that if Jane succeeds in establishing that the executive order is unconstitutional, an injunction that just tells the government to treat her as a citizen will remedy her injury. In the government’s view, there is no reason for the court in her case to issue an injunction that also applies to someone who isn’t a party to the case—whether it’s her cousin, or a neighbor who lives down the street, or a stranger on the other side of the country

There were lots of arguments both ways on that issue, but the key point is that the Supreme Court majority adopted the Trump Administration’s position. In its own words, what the Court ruled is that an injunction can’t be “broader than necessary to provide complete relief to each plaintiff with standing to sue.” In other words, to go back to our Jane Doe hypothetical, a court can issue an injunction telling the federal government it has to treat Jane Doe as a citizen, but it can’t issue an injunction requiring the federal government to treat Richard Roe (who isn’t a party to the lawsuit) the same way, because that isn’t necessary to provide Jane with complete relief: In the view of the Supreme Court majority, it’s no skin off Jane’s nose if Richard doesn’t get a passport.

The consequence of the decision is that it will be a lot more difficult to get broad remedies quickly for unconstitutional actions by the federal government. The decision will allow people who face imminent injuries to get orders preventing the government from treating them unconstitutionally, but the government will be able to continue to treat other people who aren’t parties to a case unlawfully. That means challenges to unlawful actions are likely to require more litigation, and it will take longer for those cases to result in decisions that effectively put an end to abuses of power.

The decision doesn’t, however, make effective challenges to unconstitutional federal policies impossible. You may have heard or read news accounts saying the decision means that, to put a stop to the unlawful federal policy, each person affected will have to bring their own individual case. That view is an exaggeration, for three reasons.

First, the decision recognizes that things are different when a plaintiff brings a class action seeking injunctive relief on a classwide basis. If the requirements for a class action under the rules of the federal courts are met, a court in the class action can issue an order providing a remedy for every member of the class as defined by the court. And class actions are easiest to bring in cases where the defendant has acted toward a group of similar individuals in a way that make it appropriate to grant each class member injunctive relief. To be sure, a class action doesn’t provide universal relief, because only people who are “similarly situated” can be members of the class. But if you think about our Jane Doe example, it would be pretty straightforward to define a class of all persons born in the United States to undocumented parents since the date of the executive order, and craft an injunction that would provide relief to members of that class. Such an order would go a long way toward protecting those threatened with injury by the executive order.

Second, the decision also recognizes that when state governments are affected by unconstitutional federal government actions, remedying the injuries suffered by a state may require relief that affects how the federal government treats everyone in the state. The birthright citizenship order, for example, presents lots of problems for states by effectively requiring them to treat people they regard as citizens as if they are not citizens. Rectifying those problems may require an injunction that affects how the federal government treats everyone in that state.

Third, and maybe most importantly, even if a case only involves an individual plaintiff, and the injunction issued in the case only affects one person, the case can still present an opportunity for the Supreme Court to issue a precedent that is binding nationwide. To go back to our Jane Doe example, suppose the lower courts in her case hold the Trump birthright citizenship order unconstitutional and issue an order requiring the federal government to recognize her citizenship. The Supreme Court would then be highly likely to take that case to review the merits of the birthright citizenship issue. And whatever it ruled on that question would be the law of the land, binding on all federal and state courts and on the other branches of government. Even though the order the Court upheld just affected Jane Doe, the precedent the case would set on the meaning of the Constitution would apply nationwide.

For example, when the Court held in Obergefell v. Hodges that states must recognize same-sex marriages, the specific cases its decision addressed involved 14 same-sex couples in four states, and the result was an order that directed the governors of those four states how to treat the couples who were parties. There was no universal injunction. But everyone recognized that the legal principle established—that the right to marry extends to same-sex couples—applied to everyone nationwide. The same will be true when the Supreme Court ultimately addresses the birthright citizenship order, as I believe it will.

For exactly this reason, the Trump Administration’s lawyers assured the Supreme Court that, universal injunction or not, if and when the Supreme Court decides the merits of the birthright citizenship order, the federal government will follow the Supreme Court’s decision. Of course, the Administration might go back on its word and thumb its nose at the Court. But an Administration willing to do that probably would also be willing to disregard a universal injunction. Either way, disregard of a Supreme Court decision would present a constitutional crisis, and the American people would be unlikely to tolerate such an action by the President.

The bottom line is that Friday’s decision kicks the can down the road, but won’t prevent the Supreme Court from eventually facing and definitively deciding whether Trump’s reading of the 14th Amendment is correct. For what it’s worth, my view is that the Trump order rests on an untenable reading of “subject to the jurisdiction thereof.” Children born in the United States to immigrants, documented or not, are fully subject to the “jurisdiction” of the United States in every meaningful sense of the word and hence are citizens. The plain text of the Constitution, and the chaos that would follow if birth certificates could no longer provide a reliable means of determining a person’s citizenship status, make it unlikely that a majority of the Court will go along with Trump on this issue. But, as we learned Friday, that is a question for another day.

[Note: To get daily delivery of this blog to your email go to: https://petersage.substack.com/ Subscribe. Don't pay. The blog is free and always will be.]