Reading Tea Leaves
A listener could not help but be fascinated by the Supreme Court argument May 15 over nationwide injunctions considered against the backdrop of birthright citizenship. The substantive question of birthright citizenship was not presented; only the validity of nationwide injunctions issued by a single district court, but the background issue was ever-present. The practice of nationwide injunctions, courtwatchers agree, trouble a majority of the justices. At the same time, there seems to be little support for a change in birthright citizenship.
Context matters. And that’s what makes whatever the Court does all the more interesting. On his first day in office, President Trump signed an executive order directing federal officials not to recognize U.S.-born children of those who migrated to the United States without proper documentation as Americans. Lawsuits ensued. Three district courts issued nationwide injunctions against its implementation.
A central question during the oral argument was what should happen when the president gets the law wrong. The administration’s position is that district courts and even intermediate courts of appeal lack jurisdiction and equitable powers to issue nationwide injunctions. Instead, it claims that any injunction should be specific to the person or persons who brought the lawsuit. If another similarly situated person is about to face the same issue, that person can bring a new lawsuit and point to the earlier decision to support the case. (N.B., no one during the argument mentioned that a federal district court’s decision is not biding precedent in any other district court or even on itself in subsequent cases).
Under that approach, Solicitor General Sauer seemed to suggest that separate lawsuits would have to be filed by every person affected or, if a result can be binding district-wide, in every judicial district, so that there would be parts of the country where the executive order challenged would be in effect and others where it would not be in effect. That approach would put a premium on getting the case to the Supreme Court, where the ruling would have nationwide effect. Sauer said the administration would honor such a decision, but also suggested that the Court’s own precedents indicate its decisions are also specific to the litigants.
Chief Justice Roberts, using the example of the TikTok case, said that the Court can entertain cases expeditiously, but others expressed concern that any gap would irreparably harm those affected. At the same time, Justice Kagan put a practical concern on the table: if, as in this case, you are losing every time, an administration could simply not appeal and never face the Supreme Court.
Sauer’s solution to the dilemma was to suggest a class action, nationwide in scope. If a class were certified, the district court decision could have nationwide effect, he said. At the same time, he admitted that the Justice Department would challenge any class on grounds of typicality and commonality, appearing to make his solution no solution at all.
One day after the argument, the Supreme Court issued an opinion in the shadow docket case of A.A.R.P. v. Trump, which concerned two detainees that the administration claims are members of Tren de Aragua, the gang designated as a foreign terrorist organization by the administration. This was the Court’s second opinion in the case. The named plaintiffs represent a putative class of similarly situated detainees in the Northern District of Texas, all seeking to prevent deportation to the prison in El Salvador where others have been sent.
In that yet-to-be-certified class action, the administration took the position that it would obey an order covering the two named plaintiffs, but not the rest of the putative class. Earlier in the case, the administration had represented that they would not deport the detainees on the day of the district court hearing, but could not commit beyond that. The Court, aware that detainees have been shuffled between judicial districts in an attempt to escape the type of localized order that is the limit of district-court authority and the claims that the administration is helpless to retrieve Abrego Garcia from that prison despite a Supreme Court order to facilitate his return, issued an unusual order: the detainees may not be deported under the Alien Enemies Act (but may remove them under other lawful authorities) must stay in the United States while the Fifth Circuit determines whether a preliminary injunction should be issued under the usual criteria and what type of notice of deportation is due for members of the putative class. And the Supreme Court ordered that its injunction against removal from the United States continue until disposition of a cert petition after the Fifth Circuit’s decision or, if cert is granted, until judgment by the Court.
The juxtaposition of the birthright citizenship injunction question and the real-time test of the removal issue appears to send signals that the Court, inclined against nationwide injunctions, is still searching for a solution that respects the dangers an unconstitutional executive order poses for at least some people covered by it. Although all we can do now is attempt to read the tea leaves of what the A.A.R.P. decision means for the birthright citizenship case heard a day earlier, the result we see relatively soon will have far reaching implications beyond the weighty issues in these constitutional challenges for it will affect the types of class actions the Court has discouraged though not eliminated more generally and the appeals that ensue in those cases.