Last week’s Supreme Court oral argument in the case involving the federal government’s emergency application to cut back on the so-called “universal” (nationwide) preliminary injunctive blocks lower courts have placed on President Donald Trump’s birthright-citizenship Executive Order was revealing and important, and we are glad that analysts, like our friend and colleague Mike Dorf, are providing insightful commentary on it. We too have some observations we think are worthy of discussion, and in the space below we offer a handful of the most important ones.
For starters, the oral arguments confirmed that, as one of us wrote last week, the constitutional merits of President Trump’s birthright-citizenship Executive Order are inextricably entwined with the question of the propriety of universal or nationwide injunctive relief that lower courts have granted. Just as the likelihood that a government action is unconstitutional factors into the balance of equities that determine whether a court should enter preliminary injunctive relief at all, so too the precise ways in which a government’s action is likely unconstitutional should be taken into account in deciding the proper scope of any preliminary injunctive relief. With regard to national birthright citizenship, the very nature of the right counsels against geographical disuniformity throughout the nation, even temporarily; the whole point of the first sentence in the Fourteenth Amendment is to codify a national (rather than state-specific) definition of citizenship that is consistent throughout the land. Not just a national floor—as may be true for other kinds of liberties—but a national definition. That is why Section One of the Fourteenth Amendment provides that U.S.-born persons are citizens not just of the U.S., but also of the states in which they live. States can’t alter the definition of state citizenship, the way they can supplement other federal rights, e.g., concerning speech, reproductive autonomy, etc. This reason alone (to say nothing of the practical fiscal and administrative problems that disuniformity visits upon the states, a topic helpfully elucidated by the Solicitor General of New Jersey at oral argument) justifies some kind of uniform, national rule that must be in place for citizenship at all times. True, there exist variations in the scope of many federal constitutional rights when different interpretations of constitutional provisions by courts across the land are not resolved quickly or not resolved at all by the Supreme Court. But citizenship strikes us as being in a very different category. Citizenship involves the most basic aspects of status. Whether one is designated a citizen or not has immediate, ongoing, and broad effects on fundamental aspects of an individual’s daily life.
Related to this is the important but under-appreciated sense in which citizenship rights, like other political rights in the Constitution, such as voting, free-speech and jury service, are more than individual entitlements: they are instrumental protections that enable Americans to come together to form a polity and make collective decisions. As one of us observed in a co-authored Stanford Law Review article over two decades ago, these liberties are “hybrid rights” in that they protect both individuals and groups of individuals in the political process. In this vein, note that the citizenship part of Section One of the Fourteenth Amendment itself speaks in pluralized, collective and aggregate language; “All persons . . . are citizens of the United States [and of the states] wherein they reside.” (emphasis added). The language does not, the way the Due Process Clause or Equal Protection Clauses do, focus on “any [singular] person.” (And those clauses could have been but were not written in the plural.) The pluralized language, along with historical and philosophical conceptions of what it means to be a citizen, underscore that whether someone is treated as a citizen or not is a matter of interest not just to that individual, but to the rest of the citizenry too. In the same way that the First Amendment protects listeners and not just speakers (and this is why “assembly” is also protected), and the voting-rights provisions of the Constitution (such as the Fifteenth, Nineteenth and Twenty-Sixth Amendments) protect not just the rights of individual voters but also the rights of voting coalitions to influence election results, so too the conferral of citizenship on a person is about more than that individual’s entitlements; it is about the entitlement of others (the many) to come together with that person to form the (one) body politic.
For these and other reasons, it was not surprising to hear multiple (at least three by our count) Justices on the Court discuss the ways in which President Trump’s Executive Order on its face seems to run afoul not just of settled Supreme Court and congressional and executive precedent going back many, many decades, but also of the very words of and historical backdrop of Section One of the Fourteenth Amendment. Tellingly, none of the other Justices said anything suggesting they disagreed with this characterization of the Executive Order and the uphill legal battle it seems to face, nor did any of the other Justices take issue with the mention or relevance of this characterization, even though the Trump administration and its representative in Court, Solicitor General John Sauer, in the papers before the Court tried to suggest that merits issue was not really on the table. Indeed, the government’s briefs made no attempt to argue, at this time, that the lower courts that had blocked the Order were actually wrong in their prediction of the ultimate constitutional fate of the Order. General Sauer did, in the short rebuttal part of his argument, assert that “the suggestion that our position on the merits is weak is profoundly mistaken,” but the apparent reason he felt the need to emphasize the point on rebuttal was that several Justices (without pushback from any of their colleagues on the bench) had made exactly the suggestion with which he disagreed.
We are heartened, then, that at least some of the Justices expressed deep skepticism about the constitutionality of the Executive Order, and that all the Justices (or at least all who spoke to the issue) seemed to want uniform rules about citizenship to be in place, even in the short run, during whatever time it takes for the Court to expeditiously resolve the merits as a final matter. (In this regard, we note that rules about justiciability and judicial relief in the realm of political rights are, and should be, often treated differently from rules that govern other substantive realms.) That still leaves, of course, the precise mechanism by which national uniformity could and should be maintained pending ultimate Supreme Court resolution. As Mike Dorf rightly correctly noted, the Justices seemed to be focused on whether individual district court judges should be permitted to issue universal injunctions or instead whether the better course would be to require plaintiffs to seek certification of a nationwide class under Federal Rule of Civil Procedure 23, and then obtain preliminary (and then final) injunctive class-wide relief on behalf of a putative national class.
Interestingly, it took Solicitor General Sauer a while to explain why, from the point of view of the federal government, a nationwide class action route is preferable. One reason for this is that many of the problems of universal injunctions – such as forum shopping by plaintiffs to seek a district court judge likely to be receptive, the short-cutting of percolation of legal issues that occurs when either a universal or class-wide injunction is issued—would seem to be similar in the two settings. But as General Sauer did point out, there is a basic asymmetry and unfairness to allowing individual plaintiffs to file multiple suits, with each plaintiff seeking to obtain a universal injunction: as Mike put the point, the federal government “must win every case brought against it to avoid a universal injunction, whereas a series of different plaintiffs suing in different courts can lose repeatedly until they win once.” By contrast, assuming a nationwide class action for injunctive relief under Rule 23(b)(2), which permits no opt-outs (and we note with interest that no one at argument discussed that issue; the assumption that any class action would not permit opt-outs is yet another implicit recognition that the merits of the constitutional challenge are relevant to the remedies at issue here), if a class were certified and the plaintiffs’ application for a class-wide final injunction were ultimately denied (presumably on the ground that the court found the government’s constitutional defense of the Order to be convincing), then all class members would be stuck with that final ruling until and unless it were reversed on appeal. In this respect, the class-action route gives both sides a single bite at the apple, unlike the universal-injunction route, which gives one side and only one side (the plaintiffs’ side) multiple bites. (This is similar to the problem of unfairness that might arise from the application of non-mutual collateral estoppel, or issue preclusion, a topic about which Brainerd Currie wrote a famous law Stanford Law Review article.)
This brings us, however, to a very interesting but underdeveloped set of exchanges between Justice Ketanji Jackson and the oralists. Justice Jackson started this line of questioning by observing to General Sauer: “I guess I don’t understand why you are saying that these kinds of [universal] injunctions are [improperly] giving relief to nonparties. . . The plaintiff is the only person who can go to court after you violate this order and enforce it. Other people are [merely] incidental beneficiaries of a court ordering you to follow the law.” At another point, she similarly asked: “Are nonparties in [the universal-injunction] situation actually getting relief, or are they just incidental beneficiaries of an order requiring the government not to do this harmful thing? I thought it was the latter.” And in her most elaborate presentation of her perspective in this regard, she said:
[O]f course, anybody who would have been harmed by the government doing X is benefitted by [a universal injunction against X], but they’re not really, I thought, getting relief. I thought they’re not getting relief because they can’t come into court independently and seek a contempt ruling if the government continues to do the thing. They weren’t parties. They don’t have the judgment. That’s what differentiates them from, say, the class action people or the plaintiff people.
The reason why we have the rules for class action, et cetera, is because, at the end of the day, the members of the class are getting a judgment that they can then use to enforce this obligation as against the government, whereas the people in the universal injunction world are just benefitting if the government actually, you know, follows the order (emphasis added).
We highlight the last part of Justice Jackson’s explication here because to us it raises the question (which unfortunately went completely unexplored at argument) of exactly what, under Justice Jackson’s view of universal injunctions, constrains “the government [to] actually, you know, follow[] court orders.” In other words, we want more analysis of what it is that prevents the government from respecting a universal injunction as to the parties but ignoring the “universal” part of the order as to everyone else in the nation. If Justice Jackson is correct (and, given the ordinary understanding that contempt exists to allow prevailing parties to ensure compliance with the judgments they have obtained in their favor, we think she very well might be) that non-parties have no ability to enforce universal injunctions via contempt, and if even the actual parties could not (as we think they couldn’t) easily invoke civil compensatory or civil coercive contempt if the government violates the universal injunction but does not enforce the challenged law as against the parties themselves (because the parties are suffering no harm by the government’s disobedience), then what does that leave? It is possible that the judge whose universal injunction was being flouted could initiate criminal contempt proceedings against defiant federal officials, but in light of a century-old Supreme Court ruling it is also possible (though not entirely clear because that ruling did not involve federal officials subject to contempt) that the President could pardon federal officials for federal criminal contempt. So that doesn’t seem to be a fully satisfactory route either. And for those of us who, in today’s world, are uncomfortable relying only on historical norms and political pressure to ensure executive compliance with judicial decrees from lower courts, all of this could be unsettling.
Ironically enough, this leads us to wonder whether the Rule 23 nationwide-class route may be not just fairer for the government, but also preferable for the plaintiffs as well. Justice Jackson (and Justice Elena Kagan and others) expressed the clear desire that injunctive relief against the government be adequate to prevent the government from playing a “catch me if you can” game in which the government defies rulings except as to particular parties who have a right of enforcement. But it may be—if Justice Jackson’s (limited) conception of universal injunctions is correct—that the only way to really prevent such a “catch me if you can” game is to make all affected persons actual parties to the litigation (so that all class members can, if necessary, invoke civil compensatory or civil coercive contempt, which may circumvent criminal pardons and the like), even though the language, history, procedural strictures and related time requirements of Rule 23 make class actions a somewhat awkward device to use.
If we are right about this, then there may be (or at least perhaps ought to be) more agreement among the Justices about how to resolve this case (and the more general issue of universal injunctions) than some commentators appreciate.