Trump v. CASA, Inc. et al.

The recent Trump case was one of the most eye-opening and confusing judgments I've read.

For context, Trump signed an executive order to re-interpret "birthright" citizenship limiting it to children born in USA by at least one parent with US citizenship. A couple district courts ordered preliminary injunctions against its enforcement. The government eventually argued to the Supreme Court that the preliminary injunctions were too broad in scope.

The court with an apparently 6:3 majority decided that the lower courts had no right to award "universal injunctions" beyond the scope of the plaintiffs seeking the injunction. Federal courts' power to issue injunctions apparently stems from the Judiciary Act of 1789, which endowed federal courts with jurisdiction over "all suits... in equity". This is nothing exciting, except that the USSC then declares that the scope of "equity" is basically the jurisdiction of the High Court of Chancery in England at the time the constitution and Judiciary Act of 1789 was established.

Apparently this isn't a new stance of the USSC, but hits me as a rather weird and backward looking one. The USSC cites a prior decision in Grupo Mexicano (1999) and also Payne v. Hook (1869) that "The equity jurisdiction conferred on the Federal courts is the same that the High Court of Chancery in England possesses".

I couldn't help myself. Screenshotted the paragraph and posted it on social media, asking whether the US is reverting to feudalism. I was only half joking, because why take such a stance when even England of all places, which has a proper monarch, the courts would not hesitate to declare a government order null and void if it deems the order to be unlawful.

But is this what the majority decision actually entails? This is the confusing part. I actually have no idea.

First, some of the plaintiffs are states, so any injunctive relief, if granted, would presumably have state-wide application. There are only so many states, so it would more or less be "universal" in that way, at least not limited to "plaintiffs" in the usual manner.

Second, what about class action suits? A nationwide class action suit could render the argument academic.

Third, and more crucially, is the majority opinion simply talking about preliminary injunctions, or does it apply to final decisions as well? If a government makes an unlawful order that has nationwide impact, is the USSC saying that it is not going to declare it unlawful and thus the order null and void?

Alito's concurring opinion (joined by Thomas) deals with issue #1 and #2. (Which honestly, in the grand scheme of things, isn't a big issue.) He seems to attempt to preemptively close the loophole with respect to class action suits and state actions. The weird thing is that his opinion is only joined by one justice (Thomas). Why did the other justices who concurred with the majority opinion not adopt Alito's opinions? The last paragraph is weird as well: 

Lax enforcement of the requirements for third-party standing and class certification would create a potentially significant loophole to today’s decision. Federal courts should thus be vigilant against such potential abuses of these tools. I do not understand the Court’s decision to reflect any disagreement with these concerns, so I join its decision in full.

What did he say? I might be stupid but I don't understand the "so"... Did the other justices intentionally leave open the possibility of nation-wide class action suits against presidential executive orders as a workaround? If so the political motivations of the majority are blatantly obvious...

Kavanaugh's "concurring" opinion deals with the third issue, the much more important one IMHO. The majority opinion does not seem to make a distinction between preliminary/interim injunctions and injunctions issued in a final decision. Kavanaugh makes it painfully clear that he wants to limit the current judgment to preliminary ones. He asserts that even for interim situations where the legal status of a new law or executive decision is unclear, the USSC will provide guidance as usual after this decision.

When a stay or injunction application arrives here, this Court should not and cannot hide in the tall grass. When we receive such an application, we must grant or deny. And when we do—that is, when this Court makes a decision on the interim legal status of a major new federal statute or executive action—that decision will often constitute a form of precedent (de jure or de facto) that provides guidance throughout the United States during the years-long interim period until a final decision on the merits.

This sounds fine and dandy, except that this seems to be in logical contradiction with parts of the majority opinion:

JUSTICE JACKSON appears to believe that the reasoning behind any court order demands “universal adherence,” at least where the Executive is concerned. [...] In her law-declaring vision of the judicial function, a district court’s opinion is not just persuasive, but has the legal force of a judgment. But see Haaland v. Brackeen, 599 U. S. 255, 294 (2023) (“It is a federal court’s judgment, not its opinion, that remedies an injury”).

Perhaps the majority opinion was concerned with district courts when they wrote this, whereas the USSC's opinions, presumably, command more than mere respect? It is hard to fathom that the USSC is actually saying in its majority opinion that its opinions as to what the law is don't matter, only the outcome or judgment.

The fact that this crucially important point is left vague when the USSC declares that federal courts do not have the authority to issue universal judgments is pretty mind-blowing. If opinions of federal courts don't count, and it cannot issue universal injunctions, is there actually anything that prevents the government at all from doing unlawful things at scale, to the point that it is infeasible to remedy every affected person due to its sheer scale?

Well, the answer used to be "yes", because if anyone is doing serious unlawful things at scale they'd likely run foul of criminal law eventually, get locked up and won't be able to do further harm. But with the recent decision of Trump v. United States, 603 U.S. 593 (2024).... well, that doesn't really apply. (So that's why I mentioned the government specifically.)

Of course, the discussion is kind of "academic" in the sense that a court's "mere" opinion stating the government's actions are unlawful and a court's universal injunction to stay such actions are all mere words on paper that as a matter of physics, could be ignored given aforementioned presidential immunity. The only thing preventing either from happening is that it doesn't look good on the government's part, and up to this point we're still assuming civil society.

So why don't the justices in the majority adopt Kavanaugh's "concurring" opinion? Why don't they limit this decision to preliminary injunctions, and why are they actively suggesting that federal courts do not have power to stop the government from doing unlawful things until an affected party files suit and only then does the government have an obligation to stop doing the unlawful thing to that specific party?

I wish I had an answer.

Generally though, every political savvy court realizes that it is dangerous to weld too much power when dealing with "judicial review" situations where it makes a decision as to the legality of government actions. Courts in developed countries generally hold considerable authority since we were born, so it's easy to presume authority of a constitutional court, one where appointed judges opine about the legality of actions taken by people with political power, as a given. But reality is far from that.

One of my fondest memories in law school was in a tutorial where (now disgraced) Benny Tai was sharing his views on how a constitutional court establishes its authority in the beginning -- it must make calculated trade offs and politically savvy decisions, prove its worth and cement its reputation as impartial and fair. The radical idealists may have a moral high ground, but it doesn't mean anything if the court is undermined by political forces that weld actual power.

Marbury v. Madison, a case cited by the majority opinion, was such a political savvy decision where the USSC declined to force the government to take an action (which could result in the executive branch actively trying to undermine the court's authority in retribution), but "in exchange" asserted its power to strike down laws as unconstitutional. I presume there must be deep political considerations with the current USSC court adopting such a strange and nuanced position in this kind of delicate matter.

Perhaps ambiguity is the key to survival. For example, a couple years after I stated the question, I still do not know whether Ng Ka Ling was overturned (by Kwok Cheuk Kin v Director of Lands, not Ng Ka Ling No 2... although arguably the latter easier to rationalize).

All this just shows that we have much to learn, I guess.