The firehose of commentary on last Thursday’s birthright citizenship/nationwide injunction Supreme Court argument is now more a squirt gun. But I’ve had two very smart takes clipped for days now, and I think it’s time to get them out to readers:
Justice Ketanji Brown Jackson put it well in [last Thursday’s] argument:
[T]he real concern, I think, is that your argument [meaning that of the federal government] seems to turn our justice system, in my view at least, into a “catch me if you can” kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights.
Justice Kagan says let’s assume for the purpose of this that you’re wrong about the merits, that the government is not allowed to do this under the Constitution. And yet it seems to me that your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to… file a lawsuit, hire a lawyer, et cetera. And I don’t understand how that is remotely consistent with the rule of law
This is especially true when, as in the birthright citizenship case, there are hundreds of thousands of victims of the government’s illegal policies, and many of them are poor or otherwise unable to readily file a lawsuit.
Ilya Somin, A Simple Defense of Nationwide Injunctions
Only the Supreme Court, the Administration asserts, can declare the policy unconstitutional as to persons who are not party to any lawsuit, and only the Supreme Court can enjoin the government from revoking the citizenship of persons similarly-situated to Able, Baker, and Charlie but located in other judicial districts.
It’s not a totally unreasonable position: only the Supreme Court has truly nationwide jurisdiction, and it alone should be permitted to decide “the law of the land,” not some district court in Texas or Massachusetts or Colorado.
But Justice Kagan identified the fatal flaw in the argument:
If [the government] wins this challenge and we say that there is no nationwide injunction and it all has to be through individual cases, then I can’t see how an individual who is not being treated equivalently to the individual who brought the case would have any ability to bring the substantive question to us…. In a case like this, the government has no incentive to bring this case to the Supreme Court because it’s not really losing anything. It’s losing a lot of individual cases, which still allow it to enforce its EO against the vast majority of people to whom it applies. . . . I’m suggesting that in a case in which the government is losing constantly, there’s nobody else who’s going to appeal; they’re all winning! It’s up to you, [the government], to decide whether to take this case to us. If I were in your shoes, there is no way I’d approach the Supreme Court with this case.
Which is exactly what happened here! …
… paradoxically enough, the more egregious the executive’s conduct – the more obviously and incontrovertibly unconstitutional it is – the more likely it is that it will lose every case, which will mean that the question of its constitutionality never gets to the Supreme Court for a conclusive ruling.
Clever, no? Another seam, or fault-line, in the web of constitutional protections and the separation of powers has been exposed.
I regard this as a fatal objection to a rule prohibiting non-party injunctions in all cases because it fails what we might call the Hitler Test: if we are ever so unfortunate as to have a president who wanted to do Hitler-ian things, would this rule help to prevent that from happening or not? It’s not a terribly high bar, but a rule prohibiting non-party injunctions in all cases doesn’t make it over.
David Post, Nationwide Injunctions and the Rule of Law
I have almost no doubt that the Trump administration will never bring the merits of its absurd birthright citizenship theories to the Supreme Court so long as it can continue acting on them against everyone who lacks the moxie or the wherewithal to file a lawsuit and get an injunction preventing enforcement against them personally. It will feel just fine if 10,000 successful plaintiffs can’t be deported so long as hundreds of thousands or millions can be plausibly threatened because they haven’t sued.
By the way: there are almost no honest politicians in the immigration fights. Everyone knows how to reduce illegal immigration to almost nothing: Congress must make e-Verify mandatory. They won’t do it because the economy relies on the mostly-menial labor of illegal immigrants, but they will bluff and bluster. And I’d give you pretty good odds that Donald J. Trump won’t deport them all for that reason, too. There will be just enough performative cruelty to keep MAGA happy.
Your enemies are not demonic, and they are not all-powerful and the right hasn’t always lost and the left hasn’t always won. But if you convince yourself of that, you give yourselves all sorts of permission to do a lot of stupid and terrible things under the rubric of “Do you know what time it is?”
Regarding said “lot of stupid and terrible things,” my failure to call out anything about the current regime does not mean I approve. There’s just too much, and on some of the apparent illegalities I don’t want to abuse my credentials without thinking it through.
I don’t do any of the major social media, but I have two sub-domains of the domain you’re currently reading: (a) You can read most of my reflexive stuff, especially political here. (b) I also post some things on the only social medium I frequent, because people there are quirky, pleasant and real.
Tipsy Teetotaler ن 