Further Thoughts on Non-Party Injunctions and the Constitution
As I listened to the oral argument and read through the Administration’s filings in Trump v. Casa (the “nationwide” or “non-party” or “universal” injunction case), I was puzzled by the Solicitor General’s repeated reference to the Supreme Court’s power to issue “binding nationwide precedent,” rather than its power to issue “binding nationwide injunctions” – the latter being what I thought the case was about.
A few examples:
JUSTICE SOTOMAYOR: So can I ask you a question? Your theory here is that Article III and principles of equity both prohibit federal courts from issuing universal injunctions. Do I have your argument correct?
GENERAL SAUER: We argue both of those and there are independent reasons.
JUSTICE SOTOMAYOR: You argue both of those?
GENERAL SAUER: Yeah.
JUSTICE SOTOMAYOR: If that’s true, that means even the Supreme Court doesn’t have that power.
GENERAL SAUER: The Supreme Court would have the authority to issue binding precedent nationwide, but as this Court —
JUSTICE SOTOMAYOR: But we couldn’t enforce it universally – is that your argument?
GENERAL SAUER: If there was a decision that violated the precedent of the Court, then the affected plaintiffs could get a separate judgment.
And again:
JUSTICE KAGAN:Â I think that the question that this case presents is that if one thinks that it’s quite clear that the EO is illegal, how does one get to that result, and in what time frame, on your set of rules without the possibility of a nationwide injunction?
GENERAL SAUER:Â On this case and on many similar cases, the appropriate way to do it is for there to be multiple lower courts considering it, the appropriate percolation that goes through the lower courts, and then, ultimately, this Court decides the merits in a nationwide binding precedent.
And again:
JUSTICE KAGAN: Suppose that there’s a single person who brings a suit and it gets all the way up to us after three or four or five years, and we say, you know, we really do agree with those four precedents that Justice Sotomayor started with and your Executive Order is illegal. Is
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