Nationwide Injunctions and the Rule of Law
At oral argument Thursday in Trump v. Casa, Inc., the “nationwide injunction” case, Justice Kagan put her finger on the question that is, in my view, decisive: If district courts do not have the ability to issue “nationwide injunctions”* against executive misbehavior, i.e., if they are limited to injunctions applicable only to the specific party/ies challenging the government’s actions in the cases before them, the courts cannot serve as an effective check on unlawful executive action.
*These injunctions might better be labelled “non-party injunctions” rather than “nationwide injunctions.” Listening to the oral argument, it appears that what gives some Justices heartburn with respect to these injunctions is not that they operate “nationwide” (i.e., outside of the geographic district within with the court is authorized to act) but that they purport to affect the rights of non-parties.
Justice Kagan asked the Solicitor General to assume, just for argument’s sake, that the Birthright Executive Order is unlawful, on the merits** – that it is an unconstitutional exercise of executive power contravening both the 14th Amendment and a number of Supreme Court precedents (as most of the courts that have looked at it have already concluded).
**This question about the merits – whether the Birthright E.O. is or is not a constitutional exercise of the President’s power – was not before the Court at this point, because the government, which was the losing party in the court below, sought SCOTUS review only on the question of whether the court’s injunction was valid, not on the underlying merits of the plaintiffs’ claim. That turns out to be a rather interesting omission – see below.
If you are uncomfortable making this assumption, because you are convinced that that the Birthright E.O. is not an unconstitutional exercise of presidential power, feel free to craft your own hypothetical here; think of something that a President could do that would be, in your view, clearly and incontrovertibly unlawful: An order requiring, say, the State Department to fire all Jews and African-Americans in its workforce; an order placing the words “Christ is our Savior” on one-dollar bills; an order declaring that ICE can execute warrantless searches whenever it deems them to be in the public interest. Just suppose.***
***Justice Sotomayor used this hypothetical: “A new president orders that becaus
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