Universal Injunctions and the Birthright Citizenship Cases

The arguments in the responses filed last week at the Supreme Court

On Friday, responses were filed in the three cases at the Supreme Court that present the issue of the scope of the injunctions in the birthright citizenship cases: Trump v. New Jersey, Trump v. Washington (and the individual plaintiffs’ response is here), and Trump v. CASA, Inc.

Since the national injunction in United States v. Texas in 2015, which put universal relief at the center of the relationship between the federal judiciary and the other branches, this might count as the most extensive amount of briefing the Supreme Court has received in favor of universal injunctions. In other cases, the scope of relief has been just one of several questions presented, but here it is the only question before the Court (albeit on a motion for a partial stay).

A few thoughts:

First, a background problem is that the executive order purporting to reject birthright citizenship is unconstitutional and designed to introduce maximum chaos. I say that for several reasons. One is that the originalist arguments against birthright citizenship are weak (for previous posts on this blog, see here and here). Another is that given more than a century of judicial precedent and executive and congressional practice and legislation, the standard for reconsideration by the courts cannot be “we’re just asking questions” or “well, it could have gone either way” or even “this is the best reading” but rather an extremely strong showing of demonstrable error. And of course with enough water under the bridge, even that isn’t enough. What has been offered in the administration’s briefs and in the scholarship they rest on is not remotely close to meeting that kind of high standard.

Moreover, even assuming arguendo that the administration could show that all the birthright citizenship cases and practice are demonstrably wrong, and could show that its desired policy was consistent with statutes enacted by Congress, this is still not the way you do it. You have OLC opinions laying out your argument. You take seriously the reliance interests and the hugely negative effects of uncertainty on many people and on the states. You study the effects of a change on federal and state processing systems. And you choose an effective date that is well into the future to allow an orderly transition. And you do it with rules, not executive orders that lack the force of law. Our constitutional system isn’t designed for flagrantly unconstitutional executive orders that take care to cause chaos.

And to the point at issue, the merits interact with the scope of relief. There are reasons the birthright citizenship cases are an especially attractive vehicle for the Court to address universal relief. As I have previously argued, the Court will actually get to the scope of relief question, and it can consider that question without the additional complications of the APA. On the other hand, there are reasons to think, as Steve Vladeck has argued in his Substack, that the cases are especially unattractive as a vehicle because the merits are clear and the human cost in the interim is high.

Note those interim costs could be mitigated if the Court were to indicate in dicta the settled nature of the merits question, even as it curtails the overbroad relief. Or, in theory, the Court could also deny a stay and say it’s because the administration has failed to show a likelihood of success on the merits. Indeed, the states make this very argument, urging that the Court may not grant a stay without a substantial showing by the administration that it is right on the merits. But that seems less apt, for I take the relevant question for a stay to be about being right on the merits with respect to the requested stay, which here would be the “merits” of the scope of the injunction, not the merits of birthright citizenship.

Second, these cases do not seek declaratory judgments (I have not checked the complaints—I am going on the fact that the responses filed yesterday in the Supreme Court do not mention declaratory relief).¹ And there is something slightly odd about that.² There is a long and well established federal jurisdiction to declare citizenship, and it predates the Declaratory Judgment Act. In the Supreme Court decision that gave a green light for Congress to enact a declaratory judgment statute, Nashville, C. & St. Louis Railway Co. v. Wallace, Chief Justice Stone put naturalization proceedings first in the list of the “familiar examples of judicial proceedings which result in an adjudication of the rights of litigants, although execution is not necessary to carry the judgment into effect.” My article Preventive Adjudication discusses in some detail why legal uncertainty about citizenship is such a significant problem and why there is a need for declaratory judgments to provide clarity as quickly as possible. (Speaking of quickly, did you know that the notes for Federal Rule of Civil Procedure 57 even suggest that declaratory judgment actions can “docket[ed] . . . for early hearing”?) And these declaratory judgments would have binding issue-preclusive effect for the plaintiffs against the federal government. However it is done, whether in individual actions generating precedent or in class actions, the need for clarity about citizenship is indisputable.

Third, we should think carefully about the exact injuries at play in these cases. The states and the individual plaintiffs are presenting different kinds of injuries, and being very precise about the injury matters for what the court’s judgment can do (see, e.g., Haaland v. Brackeen, and also Proper Parties, Proper Relief). For the individual plaintiffs, the injury is being denied citizenship that they have under the Constitution. For the states, the injury is not in the denial of citizenship (unless we allowed parens patrie suits, but Massachusetts v. Mellon rejects that³). Instead, the injury to the states is primarily from the uncertainty, that is, the regulatory confusion from the administration insisting the states do something contrary to law, with its attendant financial costs.

What the individual plaintiffs need is a declaration that they (or their children) are citizens. That would conclusively bind the federal defendants to treat them as citizens. What the states need is a declaration that the executive order is contrary to law and that it does not change the Constitution’s grant of birthright citizenship. That declaration would allow them to ignore the executive order in all of their own decisionmaking and processing of federal grants, etc. And recognizing this difference disposes of the states’ argument that a child of non-citizen parents could be born in a different state and then move to one of the plaintiff states. Such a case is fully governed by a declaratory judgment for the state plaintiffs that they—in all their dealings with the federal defendants—may ignore as contrary to law the executive order. Such a declaratory judgment would have issue-preclusive effect as between the parties (a state plaintiff and the federal defendants) without regard to whether the state was acting with respect to a citizen born within the state or a citizen born outside of it who subsequently moved to the state.

So one of the things that’s odd about the birthright citizenship cases is that neither the state plaintiffs nor the individual plaintiffs really need an injunction at all! They need declaratory judgments to resolve legal uncertainty, and they need them ASAP, and those declaratory judgments would then allow them to act with confidence.⁴ The injunctions in these cases are ersatz declaratory judgments.

Another way to put this: both the states and the individual plaintiffs are proper parties, but they are proper parties for different kinds of cases, with different kinds of declaratory relief being proper in those cases. And the more the state plaintiffs emphasize that they are representing not the interests of their own citizens but rather their own interests (and rightly so under Mellon), the more the injuries and needed relief for the different kinds of plaintiffs come apart.

Fourth, the responses emphasize that the universal injunctions below merely maintained the status quo. I agree that the status quo is important for preliminary relief, and courts should select as the status quo the state of affairs that will preserve their remedial options (as explored at length in The Purpose of the Preliminary Injunction). But the fatal flaw in the responses on this point is that they assume a district court’s injunction is supposed to preserve the status quo without reference to the case. By contrast, a preliminary injunction is meant to preserve the status quo for the parties. The Court stated the point this very term in Lackie v. Stinnie: “The purpose of the preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held” (quoting University of Texas v. Camenisch, emphasis mine). So the status quo argument is a good justification for a TRO or preliminary injunction protecting the parties, but it does not justify a universal injunction.

Fifth, I want to comment specifically on several features of the CASA, Inc. brief. It makes a valiant effort to defend universal injunctions on the basis of traditional equitable principles. In my view it can’t be done, and things like class actions and bills of peace cut in exactly the opposite direction—they show that equity could have an expansive view of a suit, drawing in everyone needed for a full resolution of the question. But the decree only resolved the rights of those in the suit. As Learned Hand said, equity cannot “enjoin the world at large.” Yes, pre-Hansberry there was more latitude about the moment when we would draw sharp lines about who was in and who was out—now we do that up front with class certification, while in the past it was often postponed until there was a question of enforcement. But conceptually, all of these devices are like the class action, which is emphatically not like one plaintiff getting a universal injunction.

Most of the argument on this point is in Multiple Chancellors, but the one thing I wish I had explored in that article are the treatises on parties in equity. Those treatises have many statements about how equity has to get all the affected parties into the suit (this is where necessary and indispensable parties doctrine comes from), and running through them is the theme of equity acting to decide the whole question but only because everyone involved is before the court. Equity’s doctrines about parties are good authority for modern class actions, not for postmodern universal injunctions.

The CASA brief has a number of good points. Its rejection of the government’s Opinions in Writing Clause argument is appropriately dismissive (p. 38 n.3). What a strange argument that was. And the argument for delay is sound—the brief puts it in the language of an administrative stay, but as noted below it could be made in terms of conditions on equitable relief. And, drawing on a possible government admission, the brief suggests the delay could be timed to allow the filing of a class action (p. 39).

There’s also the puzzle of associational standing. On the one hand, I understand why CASA, Inc. would want to litigate the question of citizenship for some of its members, and I concede that it can do this under current associational standing doctrine. On the other hand, citizenship is a deeply personal question (see the language quoted from Trop v. Dulles in one of the briefs). If we think of this in terms of who has the best standing to bring the claim—Richard Re’s relative standing—it’s hard to see how a public interest organization is the best party to litigate the question of a person’s citizenship. And the combination of associational standing (with all of its anomalies, as previously highlighted by Justice Thomas) and universal injunctions leads to some pretty unusual results if we are trying to ensure proper parties and proper relief. Nevertheless, I agree with the brief that this is not the case or posture to decide the continued vitality of associational standing.

Sixth, the response of the individual plaintiffs in Trump v. Washington notes that they moved to certify a class, but the court below combined their case with that of the plaintiff states, and then gave a universal injunction instead of certifying the class. Here we see a clear illustration of how universal injunctions are impeding class certification. That’s the proper route to getting a class-wide remedy, but it’s short-circuited by the universal injunction.

Finally, I want to underscore something about equity that will to some readers seem fairly adventuresome. In equity, relief and the absence of relief can always be the subject of conditions. This a longstanding principle, and in fact conditional relief is one of equity’s most distinctive features. An injunction can be conditioned on the plaintiff’s concession, or the denial of an injunction can be conditioned on the defendant’s concession, while no such conditions are possible for damages.⁵ Thus a federal court would be well within its powers to grant the relief requested by the administration, narrowing the injunction to protect each party’s interests, while also requiring as the price of that narrowing certain conduct by the administration in light of the ultimate merits, the equities, and the public interest. It might be wise for a federal court to request briefing on these matters, since to date neither party has discussed the possibility of conditions on relief. But in theory a partial stay of the injunctions below could, for example, be conditioned on a delayed effective date for the executive order for a period of time specified by the court to allow a class action (which might be congruent with the possible government admission noted in the CASA brief at p. 39), or be conditioned on a commitment by the federal government to pay from the Judgment Fund whatever costs the states incur from the needless regulatory confusion caused by the executive order.⁶ The executive emphatically has no power whatsoever to suspend statutes,⁷ but just as emphatically the executive does have the power to suspend his own orders. It would then be up to the executive to decide whether to do equity to get equity.

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A postscript: My previous post mentioned several developments last week related to the universal injunction. I should also flag two recent pieces of scholarship.

First, Jim Pfander and Mary Zakowski have a deep dive into patent cancellation, called “Non-Party Protective Relief in the Early Republic: Judicial Power to Annul Letters Patent.” They argue that patent cancellation illustrates the power of federal courts to give non-party protective relief, and their article is forthcoming in the Northwestern Law Review. In my view, they usefully show the range of the judicial power, but in rem suits, and suits that are conceptualized as in rem, are the exception that proves the rule. But read and judge for yourself.

Second, Gary Lawson has a symposium piece that connects the dots between the dispute-resolution model and universal injunctions. It’s called “Life, the Universe, and the Judicial Power” and is forthcoming in the Harvard Journal of Law and Public Policy.

1. Note that the failure to request a declaratory judgment does not prevent a federal court from granting one. Note 269 of The Myth of the Mild Declaratory Judgment reads: “This is especially so given that a declaratory judgment may be granted sua sponte. See FED. R. CIV. P. 57 advisory committee’s notes (1937); Katzenbach v. McClung, 379 U.S. 294, 295 (1964) (treating a request for an injunction as if it were a request for a declaratory judgment); see also FED. R. CIV. P. 54(c) (noting that for every final judgment except a default judgment the court ‘should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings’).”

2. So why didn’t the plaintiffs in these suits seek declaratory judgments? I have no inside information, but it’s possible it’s a mix of (1) declaratory judgments are often an after-thought now, with injunctions seeming like a default; (2) universal injunctions are allowed by circuit precedent, whereas the Declaratory Judgment Act itself suggests they are not universal but rather about the rights of “an interested party” (emphasis added); and (3) there may have been concern about whether government defendants would act consistently with a declaratory judgment (on which point see footnote 4 below).

3. I recognize that Massachusetts v. EPA blurred the lines on parens patrie suits, but the Court seems to be retreating from that decision, as discussed in Proper Parties, Proper Relief.

4. If the federal defendants were to ignore the declaratory judgment, an injunction could be granted under 28 U.S.C. § 2202, and that injunction could then be the basis for contempt proceedings.

5. See, e.g., Bhd. of Locomotive Engineers v. Missouri-Kansas-Texas R. Co., 363 U.S. 528, 531-532 (1960) (noting that conditions “may be made the price of relief when the injunctive powers of the court are invoked and the conditions are necessary to do justice between the parties”); see also Inland Steel Co. v. United States, 306 U.S. 153, 156 (1939); Meyers v. Block, 120 U.S. 206, 214 (1887). Two examples I teach in Remedies are Lindsey v. Clark, 193 Va. 522 (1952), and Spur Industries, Inc. v. Del E. Webb Development Co., 108 Ariz. 178 (1972).

6. The latter approach is analogous to “no-injunction bonds.”

7. E.g., the purported new suspension of the Tik Tok ban or the purported suspension of the Corporate Transparency Act.