The ‘Modest’ Ruling That Could Kneecap Our Legal System

The New York Times – no paywall: Stephen I. Vladeck,professor of law at Georgetown and writes the One First weekly Supreme Court newsletter. It is often difficult to persuade anyone other than lawyers to care about the more technical, procedural minutiae of Supreme Court decisions. But Thursday’s oral argument in three Supreme Court cases challenging President Trump’s efforts to restrict birthright citizenship is a powerful example of how such technicalities can sometimes be even more important than the substantive legal question the justices are purportedly answering. The Trump administration is asking the justices, in effect, to let the president’s (almost certainly unlawful) limits on birthright citizenship go into effect across most of the country without actually upholding them. If a majority of the court agrees, it will not just lead to widespread chaos and uncertainty over which babies born in the United States to immigrant parents are and are not citizens; it will also make it much harder for courts to halt any unlawful government action on a nationwide — or even statewide — basis. Such a holding would be a self-inflicted judicial wound, one from which the American legal system, and perhaps the rule of law itself, will not quickly recover. The substantive legal question at the heart of the three cases the court heard on Thursday is whether Mr. Trump can deny citizenship to children born in the United States to at least some noncitizen immigrant parents. Three lower courts (in Maryland, Massachusetts and Washington State) all said no, he could not — and issued what are known as “nationwide” injunctions. Such rulings barred the federal government from relying upon Mr. Trump’s executive order to deny citizenship not just to children born to the named plaintiffs, but also to those born in the United States to any immigrant parent. In a bit of legal chicanery, the Trump administration is not asking the Supreme Court to hold that the executive order is lawful. Rather, it’s seeking relief it characterizes as more “modest” but which would be, in reality, much broader: It is asking the justices to do away with the use of nationwide injunctions. If the court agrees, lower federal courts could only block government officers from acting against specific plaintiffs and no one else — unless they successfully bring their own lawsuits or the Supreme Court conclusively resolves the question. Not only would filing lawsuits challenging the same federal policy in each federal court across the country take a lot of time and money, but such a ruling would also leave open the possibility that while these cases progress, children born to immigrants could be denied citizenship based on any number of random factors: the rules in the state in which they are born, the status of their parents’ lawsuits and even the date on which they entered the world…”

Compare and Contrast – Robert B. Hubbell – Trump administration in retreat on multiple legal fronts. “The Trump administration has been an ongoing constitutional violation since Inauguration Day. The courts are catching up. Specious arguments are having their day in court and are losing badly—so badly, in fact, that the Trump administration has adopted the tactic of slow-walking judicial and congressional consideration of those specious arguments. That development should give us hope and confidence that justice will prevail ultimately, and possibly sooner rather than later!”