The President is claiming a "huge" victory in his fight to restrict birthright citizenship by Executive Order. It might not be, though. It IS a major decision limiting the power of individual District Courts to grant so-called "universal injunctions". Every District Court that has considered the EO has decided that it is unconstitutional on its face and enjoined its enforcement on a nationwide basis. Every Court of Appeals that has considered the matter on appeal has refused to lift those injunctions. The Administration has thus far refused to appeal those rulings on the merits. That means that in the Circuits where those cases are pending, the EO is and remains legally void. The Supreme Court could not (legitimately) decide whether the EO is constitutional because no one has appealed that specific issue. Chances are, if the matter were to reach the Court, the EO would not survive (but who knows. Trump's lawyers are too cagey to find out for sure.) The Supreme Court instead declared that District Courts have no power to enter injunctions binding on non-parties. This is fundamental jurisprudence. Even Abraham Lincoln complained about the Supreme Court binding non-parties in his First Inaugural Address. So what happens now is that the cases will go back to their respective District Courts with instructions to narrow the scope of the injunctions so as to provide "complete relief" to the named plaintiffs alone. What that means will vary with each case. This is where the "huge win" might prove illusory. The Supreme Court opinion points out that there IS a way to make non-parties into parties (unless individuals choose to opt out) and that is to certify as a class "all others similarly situated". Once again, the Supreme Court says "No" but then provides a road map to "Yes". My own observation is that such a class action would be greatly eased by the existing state of the law which is that the EO is unconstitutional in those Circuits that have considered it. If any Circuit comes down the other way in the future, the plaintiffs will have standing to bring the issue up to the Supreme Court. In short, the EO is doomed one way or another. Stay tuned!
Apparently, the ACLU just filed a class action and CASA, Inc is trying to convert their existing action to certify a class. Both efforts will probably succeed. Personally, as a lawyer and maybe a budding "jurisprude", I shed no tears for the nationwide injunctions. Remember the abortion pills business? Two can play the nationwide injunction game.
I It IS exciting to see American law develop actual theories of jurisprudence. Throughout most of my life and career, we were strict positivists.
As always, I recommend reading the opinion for yourself. Justices Sotomayor and Jackson joined in a withering attack on the majority wherein they argue everything except the point...the lawfulness of the EO IS NOT BEFORE THE COURT! One of the few checks on judicial power is the "case or controversy" requirement. A Judge has zero power to act in any matter that is not properly before him. Nor is it necessary that the Supreme Court do so here. In the 1st, 4th, and 9th Circuits (so far), the EO is unconstitutional. In NO Circuit has it yet been found to be lawful. The instant any Court of Appeal decides the EO is lawful, the matter will reach the Justices.
I'm not sure that I understand correctly what this means, "It IS exciting to see American law develop actual theories of jurisprudence.". But, based on my guess as to what it means, my comment is that it seems the SCOTUS should make some kind of rule like if 3 different courts rule something unconstitutional then the injunction could be made nationwide by that third court or any subsequent ruling court. Or alternatively, perhaps this could be made a federal law in a future administration? Of course, the amount of illegal things being done by this administration is unprecedented. So we're in kind of uncharted territory. It will take some time for the courts to adjust.
Jurisprudence isn't the study of the law, exactly. Rather, it's looking for the theoretical basis underlying and informing a legal system. This is my definition but it isn't very different from what you'll find in a dictionary. For most of my life and career, there was only one "rule" in American jurisprudence; the Supreme Court could do what it liked and there was no whisper of a restriction. That's a peculiar kind of positivism and a very scary thing. Over the last decade or so, that Court has begun to act as if there are limits to its power. These decisions seem to me to describe at least a nascent, but consistent, theory of jurisprudence. As to your proposed rule, one recognized function of the Supreme Court is to decide when there is a conflict between Circuits. At the moment, no conflict exists. Every Circuit thus far agrees that the EO is unconstitutional.
This post is off topic. The only post in the Political Discussions forum today is the thread Steve started up, "A Tenured MIT Professor Accused Me of Having a ‘Zionist Mind Infection’". It just says loading (when I do a mouse look) and won't open the thread. When I click on the thread it puts out an error message that I don't have permission. I've seen this before by threads started up by others. So Steve, what is this weird error? Another question, the title sounds interesting. Is there something to see or is it just some weird mistake?
Yeah, that occasionally happens with posts that include links. I've seen no pattern what will set it off. I'll delete that one and try again.
The ACLU just convinced a New Hampshire District Judge to certify a class and issue a temporary nationwide injunction. Figures. Tbe state of the law is clear, whether I agree or not, and the plaintiffs as a class will suffer immediate harm if the injunction isn't issued.
Given that the various Circuits that have considered the EO have found that earlier injunctions should not be stayed, I'd expect those Courts to reject any efforts to stay the class action injunctions. Will Trump appeal? This is harder because there's no question the District Courts have the power to do what they're doing. The sole ground to appeal to SCOTUS I can see is to argue that the plaintiffs are unlikely to prevail on the merits and that means ruling on the validity of the EO itself. That would PROBABLY be the end of the EO.
