A vexing decision on universal injunctions
What to do about Trump's bull in the Constitution's china shop?
For those of us who believe Donald Trump is the bull in the Constitution’s china shop, the recent U.S. Supreme Court decision on universal injunctions is vexing. Not clearly wrongly decided. Just a disarming at an inopportune time. Not that such considerations would be appropriate for the justices to weigh.
The decision arises in the context of Trump’s Executive Order purporting to put an end to birthright citizenship, the doctrine that anyone born in this country, irrespective of the legal status of his or her parents, is a citizen. Courts have held that the 14th Amendment to the Constitution enshrines the doctrine.
A court interpretation of a constitutional provision cannot be overturned by a presidential Executive Order. Legally, Trump’s EO is a procedural nullity. If the Trump administration wants to relitigate the meaning of the 14th Amendment, a different means needed to be concocted.
Three different district courts have held that Trump’s EO was likely unconstitutional and issued universal preliminary injunctions against its implementation. In other words, forbidding its enforcement not only against the plaintiffs who brought the case, but its enforcement anywhere against anyone. Three courts of appeals have upheld the universal injunctions.
The Trump administration appealed to the high court not the rulings on the EO’s unconstitutionality but only the reach of the preliminary injunctions. A court majority severely restricted the ability of district court judges to issue universal injunctions or any relief to those beyond the plaintiffs in a case.
The majority opinion, written by Justice Amy Coney Barrett, is an exercise in pure originalism. The federal courts’s jurisdiction in equity cases was established by the Judiciary Act of 1789. At the time, according to Barrett, there was nothing resembling a universal injunction in equity jurisprudence. Therefore, it is not a remedy available today to district court judges.
In dissent, Justice Sonia Sotomayor disputes this historical reckoning. From an originalist perspective, the question gets down to whether a “bill of peace” proceeding in the England of those times, in which relief could be granted to parties not direct plaintiffs in the case, is sufficiently analogous to today’s universal injunctions to serve as an antecedent. Sotomayor says it is. Barrett says it instead resembles today’s class action lawsuits.
Universal injunctions weren’t a thing until the 20th Century. But they have been a thing, and the high court has accepted them, for at least a half century.
From an originalist standpoint, whether allowing district court judges to issue universal injunctions is good or bad policy isn’t a relevant consideration for the justices. The only question for the justices is whether Congress has granted the authority to issue them. The court majority found that Congress has not. If Congress believes that universal injunctions should be an available tool, it can amend the Judiciary Act to clearly grant that authority.
Whether universal injunctions are good or bad policy is a difficult inquiry. As a general proposition, judges are supposed to limit themselves to the cases and the disputants before them. Is it really a good idea to give over 650 federal district court judges the individual power to invalidate, nationwide, a law or regulation at the preliminary injunction stage, before there is a full adjudication on the merits?
Way too much policy is being decided in the courts, well beyond the role intended by the founders. If there is a Democratic president, Republican state attorneys general sue over virtually any policy initiative. If there is a Republican president, Democratic AGs do the same thing. And they forum shop, filing in jurisdictions thought to have sympathetic district court judges. A universal preliminary injunction allows a single district court judge to stop a popularly elected national administration dead in its tracks. That’s a judicial veto, not a check and balance.
On the other hand, the problems with the Barrett decision cited in the dissents by Sotomayor and Katanji Brown Jackson are real and troubling. Is the only way to secure protection against unconstitutional action to file a lawsuit or have someone file a class action lawsuit that includes you, with or without your knowledge? Do district court judges really have to turn a blind eye to known consequences of unconstitutional actions on those not a direct party in the lawsuit before them?
Those consequences are particularly acute in the birthright citizenship case. The curious appellate strategy by the Trump administration – appealing the scope of the remedy, not the finding of likely unconstitutionality – sets off alarms. Is the administration going to try to abolish birthright citizenship in Republican states in which lawsuits challenging the Executive Order have not been filed? And is the high court going to permit that?
The Barrett decision remanded the cases to the district courts with guidance to look at narrowing the scope of the preliminary injunctions. And the majority opinion acknowledged that granting relief to the state plaintiffs might require something similar to a universal injunction, just framed differently.
In a healthier political environment, this decision would provoke a productive policy discussion. What should the scope of the remedies available to a district court judge be given a preliminary finding of likely unconstitutionality? Should appellate courts have the authority to expand the scope of a preliminary injunction if that of a district judge is limited? Should there be limits on forum shopping? Should the standing requirements for state attorneys general be increased?
These are not, or shouldn’t be, partisan considerations. The courts are being excessively weaponized by both parties in ways not contemplated by the founders. Recalibrating the checks and balances between the executive and judicial branches would neither benefit nor disadvantage either political party going forward. It would just provide clearer rules of engagement.
But we don’t live in a healthy political environment. And there is a bull loose in the Constitution’s china shop.
Reach Robb at robtrobb@gmail.com.