This morning, on the Fourth of July, I watched an hourlong seminar on constitutional law. The host was Preet Bharara, fellow graduate of Columbia Law School, widely admired for his work as the U.S. Attorney for Manhattan, fired by Trump for doing his job with competence and integrity, and current partner of WilmerHale (one of the Big Law firms resisting Trump’s illegal targeting).
Guest commentators were
- Melissa Murray, the Stokes Professor at New York University School of Law, and the daughter of Jamaican immigrants,
- Jack Goldsmith, the Learned Hand[1] Professor of Law at Harvard, and
- Trevor Morrison, professor and dean emeritus at New York University School of Law, and former attorney with the Office of Legal Counsel under President Obama.
Scrolling down, you will find several of my recent posts on Trump v. CASA, birthright citizenship, and “nationwide”/universal injunctions. Unlike me, the four people in the video have spent their lives studying constitutional law and federal civil procedure. That is one reason why they bring many valuable insights to the “nationwide” injunctions kerfuffle—and why, if the subject interests you, watching the video will richly repay your time.
And also why watching the video will provide valuable insights into how good constitutional law is done.
And why, moreover, good constitutional law reasoning is hard—an activity not best left to people whose thinking consists of bumper sticker slogans.
All that said, I am gratified that these people mostly agreed with my amateur understanding of the big legal issues—though they made their points will more precision and detail than I brought to bear.
With one exception. I think I missed the boat on a subtle but important point.
Did the Supreme Court Reserve to Itself the Power to Issue “Nationwide” Injunctions—All the While Denying that Power to the Lower Courts?
Justice Barrett’s majority opinion makes a big bloody deal of the claim that, in the Judiciary Act of 1789, Congress did not grant the courts any general power to issue “nationwide” injunctions. (If I were writing for fellow shysters, I would say that the justice’s interpretation of the Judiciary Act was the ratio decidendi—the rationale for her decision. But since I’m not writing for other shysters, I’ll just say “big bloody deal.”)
Now, if Congress gave no such power to the district courts or to the courts of appeal, then it must follow, as the night the day, that Congress did not give any such power to the Supreme Court, either. For that reason, I was puzzled by certain commentators’ claim that the Supreme Court reserved for itself the power to issue universal injunctions in cases where there had been no class certification.
My mistake.
As one of the speakers in the video—Prof. Goldsmith, I think—pointed out, the very last sentence of the majority opinion is in fact a “nationwide”/universal injunction! That sentence reads, “Consistent with the Solicitor General’s representation [that Team Trump won’t play games with the Supreme Court], §2 of the Executive Order shall not take effect until 30 days after the date of this opinion.”
For context, note that Section 2 is the operative language of the executive order—the part that claims to declare the policy of the United States government about who is, and who isn’t, a birthright citizen.
The Learned Hand Professor of Law at Harvard did not know what authority the Court might claim to justify writing that sentence and issuing that order.
And if he doesn’t know, then neither do I.
[1] For anyone who might wonder, “Learned Hand” does not refer to Prof. Goldsmith’s penmanship, but rather to Judge Learned Hand, a distinguished jurisprude and federal appellate judge who died in 1961.
Facing MAGA 