SNAFU

 Professor Vladeck breaks it down for you:

The majority never actually explains why CASA (the lead private plaintiff in the Maryland challenge to the birthright citizenship executive order) can receive complete relief with an injunction that applies only to it and its members. Although the lower courts hadn’t spent much time on this issue (yet another issue with the Court deciding this question through emergency applications), CASA had specifically argued in the Supreme Court that it couldn’t get complete relief without a universal remedy. That said, given that the majority unambiguously voted to stay the injunction in the CASA case, it seems to have at least implicitly concluded that a CASA-specific injunction is sufficient.

The Court ruled that only where “complete relief” can be provided by a universal injunction, can such an injunction be valid. And what is “complete relief”? The Court declined to say (following in the tradition of Trump v US). But I’m interested in the parenthetical. The Court took this on emergency appeal, before the case had finished in the trial court, gone through appeals (which could include remands, new trials, new appeals. The ordinary course of business, IOW, before the Court decided its primary purpose is to protect Trump at all costs. After this opinion, that mask is definitely off.), and so before the parties had briefed ALL the issues raised by this case. None of that would have stopped the Court from ruling on the substantive legal question; but they planted their “Trump Uber Alles” flag when they took the emergency appeal; which was no emergency at all.

Elie Honig can suck it.

I’m still at a loss how a bedrock constitutional provision like birthright citizenship doesn’t require the defense of the Court for all persons, and how complete relief in this case doesn’t extend to all persons, as the 14th Amendment does. You know, like this:

But the other two cases before the Supreme Court have states as plaintiffs. And although the Trump administration had asked the justices to knock the states out, the Court (implicitly) declined in today’s ruling. So those cases go forward with state plaintiffs, for which the complete relief question is much harder.

Imagine, for instance, if the executive order goes into effect in, say, Texas (which is not one of the plaintiffs), but not in New Jersey (which is). New Jersey has pretty good arguments that the injunction has to cover babies born in Texas, or else it will be harmed both with respect to having to have different rules depending upon where babies are born and a concern that babies born in New Jersey will lose benefits (and maybe even face deportation) if they ever enter Texas. If a district court buys those arguments, then we could quickly see another universal injunction blocking the executive order—now with the analysis that the Supreme Court has held is necessary.

As I’ve said, the Court is more interested in questions of procedure and equity than in the issues procedure and equity are meant to ensure, which is justice. They take up Trump’s emergency appeals, and then use the “emergency” to limit their rulings to one issue, declining to address the consequences of their decisions until further proceedings can occur. In the case of Trump v U.S. that is practically an impossibility. How many criminal cases will come through the courts regarding the parameters of “official Presidential duties”? Since there has been only one criminal prosecution regarding a former president in American history. And I guess now the question of birthright citizenship has to “percolate” through the courts. And what about Professor Vladeck’s hypothetical?

New Jersey is a party to one of the cases ruled on yesterday. Their citizens are covered by the injunction, but those of Texas aren’t. Anybody really expect Ken Paxton to seek an injunction against Trump’s order on behalf of the citizens of Texas? Do we have to depend on a class action claim? A claim that will take a trial court months to certify, and which is subject to interlocutory appeals, which will have to make their way through the 5th Circuit and the Supreme Court. In the meantime, what? Paxton declares all children born to non-citizens in Texas are not U.S. citizens?

I’m surprised he hasn’t already. If he does, what happens to the babies born between certification of the class and the injunction? Irreparable harm? I’m pretty sure the Supremes have reserved that for the government alone, in this matter.