You may have a different take when President Ocasio-Cortez unconstitutionally orders the National Guard to seize bibles and guns and your only direct remedy is to hire a lawyer and get comfortable for about four years. You will win, of course. But, you will be the only guy on your block with a legal gun and a bible.
almost right. on the birthright citizenship merits, I put the odds at 60-40 against Trump, not 100%. The legal arguments on his side are not frivolous and the policy arguments are strong. The issue is pending before a 9th Circuit panel, and after listening to the argument, I suspect the panel may well uphold the order. Whether than would withstand en band review is another question entirely, and frankly I'm not sure how it would come out if it ever gets to SCOTUS on the fully briefed merits.
Birthright citizenship comes from the English common law and has been the law of the land in the US since before the Constitution was written. What possible legal argument can be made that the courts have consistently misinterpreted the 14th amendment, which explicitly writes birthright citizenship into the Constitution? Or what argument can be made that congress did not actually put birthright citizenship into statute when they passed the Immigration and Nationality Act?
Policy arguments are irrelevant to the legal challenge.
I might agree with you as a policy matter, but I’m not persuaded that courts cannot issue universal injunctions as a matter of law. The reference to equity in the Judiciary Act could be read to incorporate a body of law capable of development, absent congressional override. At the very least, it doesn’t foreclose that reading—and one could imagine Congress deliberately wanting the judiciary to avail itself of equity’s dynamism. Today’s decision seems to rest, at least in part, on a normative judgment about what courts should do, cloaked in a strained reading of the Judiciary Act and grounded in an interpretive method that several in the majority have elsewhere been hesitant to embrace. So while universal injunctions may be unwise, that doesn’t make them categorically wrong, so long as they’re constitutional.
You hang your entire position on this one clause: “Given that the birthright-citizenship executive order is unconstitutional,” and that’s the kind of overstepping successful first-year law students at good law schools learn to not do right off the bat. Try again please.
I struggle to understand the practical implication of a lot of SCOTUS decisions. Say Trump issues an EO authorizing ICE agents effective beginning 5:00 pm today to execute at the time of apprehension any illegal or suspected illegal immigrants ICE comes across. Based on the CASA ruling, how does such an order get stopped before anyone is executed?
Thanks, Stu. Your reply raises a lot of my same concerns. I was surprised the ruling didn't allow universal injunctions for clear (I realize that can be a hard to define term) violations of constitutional rights. The majority opinion seems in tension with many individual rights in the Constitution.
Congrats on the 3,921 citations, Sam.*
*ok, not quite that many, but close.
You may have a different take when President Ocasio-Cortez unconstitutionally orders the National Guard to seize bibles and guns and your only direct remedy is to hire a lawyer and get comfortable for about four years. You will win, of course. But, you will be the only guy on your block with a legal gun and a bible.
Apparently modesty prevents the author of this blog post from mentioning that the majority opinion cited him.
almost right. on the birthright citizenship merits, I put the odds at 60-40 against Trump, not 100%. The legal arguments on his side are not frivolous and the policy arguments are strong. The issue is pending before a 9th Circuit panel, and after listening to the argument, I suspect the panel may well uphold the order. Whether than would withstand en band review is another question entirely, and frankly I'm not sure how it would come out if it ever gets to SCOTUS on the fully briefed merits.
Birthright citizenship comes from the English common law and has been the law of the land in the US since before the Constitution was written. What possible legal argument can be made that the courts have consistently misinterpreted the 14th amendment, which explicitly writes birthright citizenship into the Constitution? Or what argument can be made that congress did not actually put birthright citizenship into statute when they passed the Immigration and Nationality Act?
Policy arguments are irrelevant to the legal challenge.
I might agree with you as a policy matter, but I’m not persuaded that courts cannot issue universal injunctions as a matter of law. The reference to equity in the Judiciary Act could be read to incorporate a body of law capable of development, absent congressional override. At the very least, it doesn’t foreclose that reading—and one could imagine Congress deliberately wanting the judiciary to avail itself of equity’s dynamism. Today’s decision seems to rest, at least in part, on a normative judgment about what courts should do, cloaked in a strained reading of the Judiciary Act and grounded in an interpretive method that several in the majority have elsewhere been hesitant to embrace. So while universal injunctions may be unwise, that doesn’t make them categorically wrong, so long as they’re constitutional.
You hang your entire position on this one clause: “Given that the birthright-citizenship executive order is unconstitutional,” and that’s the kind of overstepping successful first-year law students at good law schools learn to not do right off the bat. Try again please.
Plus this decision is just the latest pawn movement in the grander chess game for our Republic.
https://open.substack.com/pub/stevenscesa/p/red-land-blue-flame-the-coming-american?r=28v6pr&utm_medium=ios
I struggle to understand the practical implication of a lot of SCOTUS decisions. Say Trump issues an EO authorizing ICE agents effective beginning 5:00 pm today to execute at the time of apprehension any illegal or suspected illegal immigrants ICE comes across. Based on the CASA ruling, how does such an order get stopped before anyone is executed?
As I understand it, the process is this (others feel free to chime in if I’m wrong):
-File a lawsuit in federal district court
-Create a putative class of illegal or suspected illegal immigrants
-Request the Court issue an emergency TRO before 5 PM enjoining the executions.
Missing the next couple steps:
-District Judge schedules a hearing for 4:30 PM because he's in the middle of a trial
-Plaintiff appeals because this constructively denies their request for TRO
-Fifth Circuit denies, saying they don't have jurisdiction because the District Court didn't have enough time
-Plaintiff appeals to SCOTUS, they never see it because they're all at the premiere of KBJ's new Broadway show and the venue doesn't have WiFi
-You get executed at 5:01 PM
-Josh Blackman and Judge Ho write articles about how the District Judge was trying his best, and you should've given him more time to decide
-Supreme Court later strikes down the putative class certification, with Justice Alito writing that class actions don't apply to habeas proceedings
Thanks, Stu. Your reply raises a lot of my same concerns. I was surprised the ruling didn't allow universal injunctions for clear (I realize that can be a hard to define term) violations of constitutional rights. The majority opinion seems in tension with many individual rights in the Constitution.
I think the outcomes of this are likely quite negative. For dissenting voices that I think frame the situation better, see https://www.dorfonlaw.org/2025/06/scotus-ruling-in-universal-injunction.html and https://reason.com/volokh/2025/06/27/a-bad-decision-on-nationwide-injunctions/.
Hopefully, class actions can fill in the gap this leaves.