First #SCOTUS ruling today is birthright citizenship.So, for the time being, the 14th amendment to the constitution only applies to persons covered by the immediate jurisdiction of the courts in which relief was sought.
Justice Barrett, for a 6-3 majority (with the three Dem. appointees dissenting) holds that universal injunctions are only appropriate when necessary to provide "complete" relief to parties, and stays these injunctions insofar as they go further:
When a federal court issues a universal injunction against the government, it “improper[ly] intru[des]” on “a coordinate branch of the Government” and prevents the Government from enforcing its policies against non parties.
This explained without irony in a section that claims Justice Jackson’s dissent is incoherent.
The conclusion seems to be that the Executive can interpret constitutional provisions and call it “policy” and rewrite the Constitution as it applies to people who aren’t under the jurisdiction of whichever court is chosen to challenge such an interpretation. Which means the “policy” applies to the rest of us. Because, you know, equitable jurisdiction, and all that. No, really:
The individual and associational respondents are therefore wrong to characterize the universal injunction as simply an application of the complete-relief principle. Under this principle, the question is not whether an injunction offers complete relief to everyone potentially affected by an allegedly unlawful act; it is whether an injunction will offer complete relief to the plaintiffs before the court. See Califano v. Yamasaki, 442 U. S. 682, 702 (1979) (“[I]njunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs” (emphasis added)). 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. Extending the injunction tocover all other similarly situated individuals would not render her relief any more complete.
How the government is burdened by not being able to declare anyone it chooses a non-citizen despite the 14th Amendment is not explained. How that policy burdens the entire nation, is not addressed. This Justice Barrett and the majority consider “coherent” reasoning. The mind boggles.
And what happens if the government loses in that district, but decides to go full speed ahead in the rest of the country, never taking the case to the Supremes, who now alone have national jurisdiction over constitutional interpretation questions? Rest assured, O best beloved; the Court has been told by the Solicitor General that will never happen:
The dissent worries that the Citizenship Clause challenge will neverreach this Court, because if the plaintiffs continue to prevail, they will have no reason to petition for certiorari. And if the Government keeps losing, it will “ha[ve] no incentive to file a petition here . . . because the outcome of such an appeal would be preordained.” Post, at 42 (opinion of SOTOMAYOR, J.). But at oral argument, the Solicitor General acknowledged that challenges to the Executive Order are pending in multiple circuits, Tr. of Oral Arg. 50, and when asked directly “When you lose one of those, do you intend to seek cert?”, the Solicitor General responded, “yes, absolutely.” Ibid. And while the dissent speculates that the Government would disregard an unfavorable opinion from this Court, the Solicitor General represented that the Government will respect both the judgments and the opinions of this Court. See id., at 62–63.
Justice Sotomayor's dissent is worth quoting in whole, but I'll only do it in part. The best place to start is where she does:
Children born in the United States and subject to its laws are United States citizens. That has been the legal rule since the founding, and it was the English rule well before then. This Court once attempted to repudiate it, holding in Dred Scott v. Sandford, 19 How. 393 (1857), that the children of enslaved black Americans were not citizens. To remedy that grievous error, the States passed in 1866 and Congress ratified in 1868 the Fourteenth Amendment’s Citizenship Clause, which enshrined birthright citizenship in the Constitution. There it has remained, accepted and respected by Congress, by the Executive, and by this Court. Until today.
It is now the President who attempts, in an Executive Order (Order or Citizenship Order), to repudiate birthright citizenship. Every court to evaluate the Order has deemed it patently unconstitutional and, for that reason, has enjoined the Federal Government from enforcing it. Undeterred, the Government now asks this Court to grant emergency relief, insisting it will suffer irreparable harm unless it can deprive at least some children born in the United States of citizenship. See Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14160, 90 Fed. Reg. 8849 (2025).
The Government does not ask for complete stays of the injunctions, as it ordinarily does before this Court. Why? The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice. So the Government instead tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone. Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit.
The gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along. A majority of this Court decides that these applications, of all cases, provide the appropriate occasion to resolve the question of universal injunctions and end the centuries-old practice once and for all. In its rush to do so the Court disregards basic principles of equity as well as the long history of injunctive relief granted to nonparties.
The majority, as Justice Sotomayor says, is happy to let the government play games. And equally happy to ignore the consequences of those games. That issue, after all, is not "before the court."
The equities and public interest weigh decisively against the Government. For all of the reasons discussed, the Citizenship Order is patently unconstitutional. To allow the Government to enforce it against even one newborn child is an assault on our constitutional order and antithetical to equity and public interest. Cf. Salazar v. Buono, 559 U. S.700, 714–715 (2010) (plurality opinion) (“‘[A] court must never ignore . . . circumstances underlying [equitable relief] lest the decree be turned into an “instrument of wrong”’”).
Meanwhile, newborns subject to the Citizenship Order will face the gravest harms imaginable. If the Order does in fact go into effect without further intervention by the District Courts, children will lose, at least for the time being, “a most precious right,” Kennedy v. Mendoza-Martinez, 372 U. S. 144, 159 (1963), and “cherished status” that “carries with it the privilege of full participation in the affairs of our society,” Knauer v. United States, 328 U. S. 654, 658 (1946). Affected children also risk losing the chance to participate in American society altogether, unless their parents have sufficient resources to file individual suits or successfully challenge the Citizenship Order in removal proceedings. Indeed, the Order risks the “creation of a substantial ‘shadow population’” for covered children born in the United States who remain here. Plyler, 457 U. S., at 218. Without Social Security numbers and other documentation, these children will be denied critical public services, like SNAP and Medicaid, and lose the ability to engage fully in civic life by being born in States that have not filed a lawsuit. Worse yet, the Order threatens to render American-born children stateless, a status “deplored in the international community” for causing “the total destruction of the individual’s status in organized society.” Trop v. Dulles, 356 U. S. 86, 101–102 (1958) (plurality opinion). That threat hangs like a guillotine over this litigation.
The Order will cause chaos for the families of all affected children too, as expecting parents scramble to understand whether the Order will apply to them and what ramifications it will have. If allowed to take effect, the Order may even wrench newborns from the arms of parents lawfully in the United States, for it purports to strip citizenship from the children of parents legally present on a temporary basis. See 90 Fed. Reg. 8449. Those newborns could face deportation, even as their parents remain lawfully in the country. In light of all these consequences, there can be no serious question over where the equities lie in these cases.
It is worth adding that Justice Sotomayor takes no prisoners (and read her dissent from the bench):
The Court’s decision is nothing less than an open invitation for the Government to bypass the Constitution. The Executive Branch can now enforce policies that flout settled law and violate countless individuals’ constitutional rights, and the federal courts will be hamstrung to stop its actions fully. Until the day that every affected person manages to become party to a lawsuit and secures for himself injunctive relief, the Government may act lawlessly indefinitely.
Not even a decision from this Court would necessarily bind the Government to stop, completely and permanently, its commission of unquestionably unconstitutional conduct. The majority interprets the Judiciary Act, which defines the equity jurisdiction for all federal courts, this Court included, as prohibiting the issuance of universal injunctions (unless necessary for complete relief ). What, besides equity, enables this Court to order the Government to cease completely the enforcement of illegal policies? The majority does not say. So even if this Court later rules that the Citizenship Order is unlawful, we may nevertheless lack the power to enjoin enforcement as to anyone not formally a party before the Court. In a case where the Government is acting in open defiance of the Constitution, federal law, and this Court’s holdings, it is naive to believe the Government will treat this Court’s opinions on those policies as “de facto” universal injunctions absent an express order directing total nonenforcement. Ante, at 6 (opinion of KAVANAUGH, J.).
Indeed, at oral argument, the Government refused to commit to obeying any court order issued by a Federal Court of Appeals holding the Citizenship Order unlawful (except with respect to the plaintiffs in the suit), even within the relevant Circuit. Tr. of Oral Arg. 61–63. To the extent the Government cannot commit to compliance with Court of Appeals decisions in those Circuits, it offers no principled reason why it would treat the opinions of this Court any differently nationwide. Thus, by stripping even itself of the ability to issue universal injunctions, the Court diminishes its role as “the ultimate decider of the interim [and permanent] legal status of major new federal statutes and executive actions.” Ante, at 3 (opinion of KAVANAUGH, J.).
There is a serious question, moreover, whether this Court will ever get the chance to rule on the constitutionality of a policy like the Citizenship Order. Contra, ante, at 6 (opinion of KAVANAUGH, J.) (“[T]he losing parties in the courts of appeals will regularly come to this Court in matters involving major new federal statutes and executive actions”). In the ordinary course, parties who prevail in the lower courts generally cannot seek review from this Court, likely leaving it up to the Government’s discretion whether a petition willbe filed here.10 These cases prove the point: Every court to consider the Citizenship Order’s merits has found that it is unconstitutional in preliminary rulings. Because respond- ents prevailed on the merits and received universal injunctions, they have no reason to file an appeal. The Government has no incentive to file a petition here either, because the outcome of such an appeal would be preordained. The Government recognizes as much, which is why its emergency applications challenged only the scope of the preliminary injunctions.
This started out as my reaction to a very poorly reasoned argument that withdraws entirely (and weakly, IMHLO) into arcane discussions of law while ignoring the impact on literally everyone except the Executive. Sound jurisprudence (by which I mean the philosophy of law guiding the argument) always considers the effect of law on persons; it is never about the rule of law for the rule of law’s sake. There is always an awareness of the need to balance conflicting interests. Except for the swipes at Justice Jackson, who clearly got under Barrett’s skin, this opinion could have been written by a robot programmed to cite the law and ignore the human consequences. That said, I defer to the expertise of Professor Vladeck as to what the future brings:
Super-quick take while reading the ruling:I defer because Professor Vladeck understands the law better than I, and because Justice Sotomayor notes that class action injunctions are still available under Rule 23(b)(2) of the Federal Rules of Civil Procedure, despite the ruling today. This may be what Professor Vladeck is referring to. I look forward to further explication of his reassurances. But the majority opinion here is not reassuring at all. This is a law for law's sake ruling, and damn the consequences! And that is not sound judicial practice at all.
This is going to be a much bigger deal for challenges to *other* Trump policies than to birthright citizenship (where it's likely that lower courts will still be able to block the policy on a nationwide basis even after this ruling).
*That's* the import.
No comments:
Post a Comment