Some questions/comments based on the podcast and reading the opinion:
1. 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?
2. If I heard him correctly, Professor Baude sounded okay that the government could enforce laws that are almost assuredly illegal until the case makes it way to a final SCOTUS decision on the merits. That would give the President a huge amount of authority and result in really challenging outcomes (e.g., see item #1).
3. Did the majority opinion also imply that SCOTUS can't issue universal junctions? I understand that SCOTUS merit decisions become precedent and thus can act like universal injunctions. But I also understood emergency docket decisions are not precedents.
One thing that I did not understand - if the opinion was essentially answering the statutory interpretation question of whether the 1789 Judiciary Act gives district (and circuit?) courts the authority to issue universal injunctions, and the court concluded that it does not, why would the Supreme Court have that power? The thrust of Kavanaugh's opinion was that the Supreme Court should serve the function of deciding interim status of laws, which seems plausible as a policy position, but I don't understand what the legal basis could be for the Supreme Court to have that power without the district courts also having that power. (Edit: I also see McGoogles had a similar question)
Also, no one suggested the name "the Denny's docket" as an option in the mix with "shadow docket" and "short order docket!"
I don’t think Kavanaugh is suggesting that the Judiciary Act gives SCOTUS and only SCOTUS the power to issue universal injunctive relief. I think Kavanaugh is saying that because SCOTUS is final, binds all lower courts through vertical precedent, and SG represented to court the admin would follow SCOTUS rulings on law, it would effectively stop a policy.
I think that's right, though I'm not quite sure what that looks like. Now, District Courts will enter narrow injunctions limited only to the party before them. If the government appeals that ruling up to SCOTUS (as Sauer said they would, to ensure SCOTUS gets a chance to review) they presumably would only determine the validity of that individual ruling. And the equitable interests at play in one individual case (like irreparable harm) could be party-specific and not representative of the whole pool of possible plaintiffs.
In order to ensure lower courts nationwide, and the executive branch, follow SCOTUS's ruling in that case they would have to give an opinion discussing the determinative factors, which they don't always do in shadow docket cases. For example, they would have to specifically state that they're upholding an injunction because the plaintiff is likely to succeed on the merits.
My understanding is that the Court was defining the limits of all federal courts, not just lower federal courts. The last sentence of the opinion (stating that the E.O. would not go into effect for 30 days) creates some doubt on this point, but it might be that the Court just slipped.
If that's right, here's my question. How does Biden v. Nebraska come out under CASA? I take it only Missouri is entitled to relief, and only to the extent that MOHELA (the Missouri loan servicer) has customers who could take advantage of the student loan forgiveness. (At the very least, the lower courts would have to figure out whether anyone else had standing.) And suppose the Biden DOJ takes a departmentalist view: "Thank you for your opinion, Supreme Court, and we will comply completely with the appropriately narrow injunction providing complete relief for Missouri. But we disagree with your interpretation of the Congressional statute at issue and will forgive borrowers with no connection to MOHELA."
More generally, which party is more likely to have an administration whose potentially illegal edicts will be difficult to challenge because of standing issues? I would think it might be Democratic administrations who are more likely to offer benefits not authorized by law. (Think DACA and DAPA, for example.) If Texas challenges some DACA-like policy, what kind of "complete relief" would it be entitled to?
I found this piece from the majority opinion super interesting and to me, it echoes the problems that Will has with Cooper v. Aaron. On that note, real quick, I think that Will’s take on Cooper was ridiculous and there is certainly no way he truly believes that desegregation would have been more effective in his proffered counter factual. Write that short novel though, maybe you’re right and you’ll manifest good things into existence. After all, we’re not afar from the world of Derrick Bell’s Space Traders.
Barrett writes…
Finally, the Government must show a likelihood that it will suffer irreparable harm absent a stay. Nken, 556 U.S. at 434–435, 129 S.Ct. 1749. When a federal court enters a universal injunction against the Government, it “improper[ly] intru[des]” on “a coordinate branch of the Government” and prevents the Government from enforcing its policies against nonparties. INS v. Legalization Assistance Project of Los Angeles County Federation of Labor, 510 U.S. 1301, 1306, 114 S.Ct. 422, 126 L.Ed.2d 410 (1993) (O'Connor, J., in chambers). That is enough to justify interim relief.
Is this seriously correct? No peek at the merits, no real consideration of the balance of equities, no concern for the status quo; the government gets interim relief from an injunction anytime that injunction protects nonparties. That just doesn’t seem right at all. The majority doesn’t even try to be persuasive here in my eyes. I mean, so much for the supposed logical leaps and law-free reasoning in Justice Jackson’s dissent, this clearly takes the cake.
On a less substantive note, really, what are we doing here? The president could plausibly enforce a blatantly unconstitutional EO because “reestablishing the proper role of the federal courts” is that much more important to law and our Constitution than ensuring that the very provision we fought a Civil War over shall never be in doubt in its continued force and application. If that is what our law demands then count me out!
The balancing-the-equities portion of the Nken analysis is the one part of the majority opinion where I am not 100% satisfied, so in that sense I agree, But I think the majority is just following exactly what the Court has been doing in cases since Nken, so that's really a broader question about how to think about equitable balancing in Supreme Court cases about procedural issues.
On the "less substantive note," I guess one question is if one stops caring about "the proper role of the federal courts" why is one still entitled to demand that the President follow the judgments of those courts that have, by hypothesis, decided not to stay in their "proper role"?
Some questions/comments based on the podcast and reading the opinion:
1. 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?
2. If I heard him correctly, Professor Baude sounded okay that the government could enforce laws that are almost assuredly illegal until the case makes it way to a final SCOTUS decision on the merits. That would give the President a huge amount of authority and result in really challenging outcomes (e.g., see item #1).
3. Did the majority opinion also imply that SCOTUS can't issue universal junctions? I understand that SCOTUS merit decisions become precedent and thus can act like universal injunctions. But I also understood emergency docket decisions are not precedents.
One thing that I did not understand - if the opinion was essentially answering the statutory interpretation question of whether the 1789 Judiciary Act gives district (and circuit?) courts the authority to issue universal injunctions, and the court concluded that it does not, why would the Supreme Court have that power? The thrust of Kavanaugh's opinion was that the Supreme Court should serve the function of deciding interim status of laws, which seems plausible as a policy position, but I don't understand what the legal basis could be for the Supreme Court to have that power without the district courts also having that power. (Edit: I also see McGoogles had a similar question)
Also, no one suggested the name "the Denny's docket" as an option in the mix with "shadow docket" and "short order docket!"
I don’t think Kavanaugh is suggesting that the Judiciary Act gives SCOTUS and only SCOTUS the power to issue universal injunctive relief. I think Kavanaugh is saying that because SCOTUS is final, binds all lower courts through vertical precedent, and SG represented to court the admin would follow SCOTUS rulings on law, it would effectively stop a policy.
I think that's right, though I'm not quite sure what that looks like. Now, District Courts will enter narrow injunctions limited only to the party before them. If the government appeals that ruling up to SCOTUS (as Sauer said they would, to ensure SCOTUS gets a chance to review) they presumably would only determine the validity of that individual ruling. And the equitable interests at play in one individual case (like irreparable harm) could be party-specific and not representative of the whole pool of possible plaintiffs.
In order to ensure lower courts nationwide, and the executive branch, follow SCOTUS's ruling in that case they would have to give an opinion discussing the determinative factors, which they don't always do in shadow docket cases. For example, they would have to specifically state that they're upholding an injunction because the plaintiff is likely to succeed on the merits.
My understanding is that the Court was defining the limits of all federal courts, not just lower federal courts. The last sentence of the opinion (stating that the E.O. would not go into effect for 30 days) creates some doubt on this point, but it might be that the Court just slipped.
If that's right, here's my question. How does Biden v. Nebraska come out under CASA? I take it only Missouri is entitled to relief, and only to the extent that MOHELA (the Missouri loan servicer) has customers who could take advantage of the student loan forgiveness. (At the very least, the lower courts would have to figure out whether anyone else had standing.) And suppose the Biden DOJ takes a departmentalist view: "Thank you for your opinion, Supreme Court, and we will comply completely with the appropriately narrow injunction providing complete relief for Missouri. But we disagree with your interpretation of the Congressional statute at issue and will forgive borrowers with no connection to MOHELA."
More generally, which party is more likely to have an administration whose potentially illegal edicts will be difficult to challenge because of standing issues? I would think it might be Democratic administrations who are more likely to offer benefits not authorized by law. (Think DACA and DAPA, for example.) If Texas challenges some DACA-like policy, what kind of "complete relief" would it be entitled to?
I found this piece from the majority opinion super interesting and to me, it echoes the problems that Will has with Cooper v. Aaron. On that note, real quick, I think that Will’s take on Cooper was ridiculous and there is certainly no way he truly believes that desegregation would have been more effective in his proffered counter factual. Write that short novel though, maybe you’re right and you’ll manifest good things into existence. After all, we’re not afar from the world of Derrick Bell’s Space Traders.
Barrett writes…
Finally, the Government must show a likelihood that it will suffer irreparable harm absent a stay. Nken, 556 U.S. at 434–435, 129 S.Ct. 1749. When a federal court enters a universal injunction against the Government, it “improper[ly] intru[des]” on “a coordinate branch of the Government” and prevents the Government from enforcing its policies against nonparties. INS v. Legalization Assistance Project of Los Angeles County Federation of Labor, 510 U.S. 1301, 1306, 114 S.Ct. 422, 126 L.Ed.2d 410 (1993) (O'Connor, J., in chambers). That is enough to justify interim relief.
Is this seriously correct? No peek at the merits, no real consideration of the balance of equities, no concern for the status quo; the government gets interim relief from an injunction anytime that injunction protects nonparties. That just doesn’t seem right at all. The majority doesn’t even try to be persuasive here in my eyes. I mean, so much for the supposed logical leaps and law-free reasoning in Justice Jackson’s dissent, this clearly takes the cake.
On a less substantive note, really, what are we doing here? The president could plausibly enforce a blatantly unconstitutional EO because “reestablishing the proper role of the federal courts” is that much more important to law and our Constitution than ensuring that the very provision we fought a Civil War over shall never be in doubt in its continued force and application. If that is what our law demands then count me out!
The balancing-the-equities portion of the Nken analysis is the one part of the majority opinion where I am not 100% satisfied, so in that sense I agree, But I think the majority is just following exactly what the Court has been doing in cases since Nken, so that's really a broader question about how to think about equitable balancing in Supreme Court cases about procedural issues.
On the "less substantive note," I guess one question is if one stops caring about "the proper role of the federal courts" why is one still entitled to demand that the President follow the judgments of those courts that have, by hypothesis, decided not to stay in their "proper role"?