Trump Admin Admits It Could Game Court System Without Nationwide Injunctions

Here’s an interesting hypothetical: the White House wins its nationwide injunction case before the Supreme Court. Judges can no longer issue these national holds on various forms of federal government action, or face an exceedingly high bar to do so.

At the same time, the high court has not ruled on the core issue of birthright citizenship. The result: lone people affected by President Trump’s executive order have to sue — each individually — to say that the order is illegal. One of them, a New Yorker, makes it up to the Second Circuit Court of Appeals, and wins.

What then? Would the Trump administration then treat its executive order as invalid for everyone else affected within the Second Circuit’s jurisdiction, which includes New York, Connecticut and Vermont?. Or would it continue to deny citizenship to every other person born to undocumented parents in the area, forcing each of them to sue and receive an individual order declaring that the executive order was unlawful and cannot be applied to them?

An appeal only happens when a losing party believes it is in the right, and wants a higher court to agree, overturning and adverse ruling. But would the Trump administration do that in this case? It could, hypothetically, refuse to appeal to the Supreme Court, which could then issue a national, precedent-setting order striking down the executive order. By not appealing, it could force thousands of people to file individual lawsuits against an executive order widely known and affirmed to be unconstitutional, but that, in a world without lower-court injunctions, only the Supreme Court can block.

This was the nightmare scenario articulated by Justice Elena Kagan, and further buttressed by Justice Amy Coney Barrett, at oral arguments in the birthright citizenship nationwide injunction case on Thursday.

The hypothetical illustrates the potentially very messy consequences of the Supreme Court stripping district courts of their ability to issue nationwide injunctions in cases like those challenging the birthright citizenship executive order. Justice Kagan raised it to Solicitor General John Sauer as an extreme example, the kind of hypothetical that he would need to confront in order to buttress his argument for why this could work in practice.

But Sauer couldn’t reassure Kagan or, later, Barrett. He said that “our practice generally is to respect circuit precedent within the circuit.”

Kagan replied that it “generally is your practice.” She added: “I am asking whether it would be your practice in this case?”

Sauer replied more clearly: “There are circumstances, as I was suggesting, where we think we would want to continue to litigate that in other district courts in the same circuit.”

Kagan replied later, after Sauer said that the administration would obey a Supreme Court ruling finding the executive order invalid, that for the years it would take for a case to wind its way up from the district level, through the appellate courts, and on to the high court, “there are going to be an untold number of people who, according to all the law this court has ever made, ought to be citizens who are not being treated as such.”

Sauer replied with the same: individuals could always go to court and ask a judge to declare that the executive order was unlawful and cannot be applied to them.

It’s a stunning argument, in part because of the nature of the order. The government would not be treating them as U.S. citizens. They would be subject to deportation, though it’s not clear to where: some of them could be stateless, obtaining neither the citizenship of their parents nor that which the U.S. Constitution has guaranteed them for 150 years.

The administration could further game the system, Kagan suggested.

She asked Sauer to assume that they “lose in the lower courts as uniformly as you have been,” and that the government then never decides to appeal. Doing so would only offer the court with a chance to invalidate the policy nationally; not appealing would mean that they could keep the executive order in effect while losing each individual lawsuit.

“Why would you take this case to us?” Kagan asked, adding later: “If I were in your shoes, there is no way I would approach the Supreme Court in this case.”

“The government has no incentive to bring this case to the Supreme Court, because it’s not really losing anything,” she added.

Sauer said eventually that a person injured by the government’s failure to comply with a Second Circuit precedent could file a lawsuit that eventually makes its way up to the Supreme Court.

Later on, Justice Amy Coney Barrett pressed on the same point: would the administration continue to implement the executive order in the Second Circuit, even if it lost an individual case about the same order in the same circuit?

Sauer replied again by saying that there were some cases where certain precedents were “not categorical.” He added that he believed it was nothing new: all administrations do that.

Barrett replied with a loud “really?” to that argument. She remarked later that Sauer seemed to be saying that the government would respect “the opinions and judgments of the Supreme Court” but that it would only respect the “judgment but not necessarily the opinion of the lower court.”

The practical impact of this all would be to allow the government to continue enforcing its executive order — depriving people born in the U.S. of their citizenship — even after appeals courts ruled it unlawful.

Justice Ketanji Brown Jackson summed up the result later.

“Your argument turns our justice system 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,” she said.