Category: Rule of Law

A hill to die on: protecting the rule of law in our constitutional republic

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“Nationwide” Injunctions, Birthright Citizenship, and the Supreme Court Decision in Trump v. CASA

The case is here. For a variety of takes from the commentators, see, e.g.,

Amy Howe (SCOTUSblog), Supreme Court sides with Trump administration on nationwide injunctions in birthright citizenship case

Washington Post Editorial Board, Justices need to own the consequences of their injunction ruling: the court has significantly weakened district courts’ ability to halt illegal presidential actions.

Jason Willick (Washington Post), Justice Kavanaugh explains what the injunctions ruling won’t change

Philip Rotner (The Bulwark), Ignoring Substance, SCOTUS Permits Lawlessness

Nicholas Bagley (The Atlantic), The Supreme Court put Nationwide Injunctions to the Torch: That isn’t the disaster for birthright citizenship that some fear. 

N.Y. Times, Guest Essay, ‘There’s Just Too Much Lawlessness’: Three Legal Experts on an Embattled Supreme Court

See also yesterday’s update from the ACLU. 

I discussed the executive order on birthright citizenship in the preceding post. 

What is a “Nationwide Injunction”?

The term “nationwide injunction” is inapt and misleading, but lots of people want to use it anyway. So let’s define it for present purposes. For present purposes, a “nationwide injunction” is an injunction issued in a case brought by one or more persons (either two-legged persons or juridical persons such as corporations) that protects not only the individual plaintiff(s) but also everyone else in a similar legal position, even though there is no certified “class action” in accordance with Rule 23 of the Federal Rules of Civil Procedure. 

As so defined, a nationwide injunction is an end run around the normal requirements for class certification under Rule 23.[1]

To illustrate and explain the point: Plaintiffs in the CASA case include four new mothers and their babies, one pregnant woman and her unborn child, and three undocumented immigrant women who might become pregnant. If the plaintiffs wanted to secure a ruling protecting not only their children but also all children whom Trump threatened to deprive of citizenship, then the normal/traditional route would be to ask the district court to “certify” such a “class” of similarly situated mothers. That class certification process involves a number of inquiries about whether it would be advisable for the litigation to go forward on a class basis, not an individual basis. But Liza, Andrea, and the other expectant mothers asked for nationwide/universal relief, without going through the certification exercise.

Before Trump v. CASA, Was There a Legitimate Legal Controversy about Whether Courts Could Issue “Nationwide Injunctions”?

Yes. Long story. But yes. 

In fact, the Biden administration asked the Supreme Court to impose severe limitations on “nationwide injunctions.”

Some Say it was Odd—and Inadvisable—for the Court to Rule on the “Nationwide Injunction” Question but Kick the Can Down the Road on the Substantive Issue of Birthright Citizenship. Do You Agree?

Yes, I do agree. And if anyone reading this post wants to delve deeper, many of the sources cited above will be useful.

But I think the much more interesting question is whether plaintiff can represent a class of similarly situated mothers, babies, and unborn children.

And whether, by so complying with Rule 23, they can find effective legal relief against Trump’s illegal position on birthright citizenship.

What’s Going to Happen Next in the Birthright Citizenship Cases?

I’ll write about that in my next post, which will appear immediately above this one, because the posts on my blog appear in reverse chronological order.

[1] Related, but distinct, issues are raised by lawsuits with plaintiffs claiming to represent a category of other people—for example, a suit brought by a state government on behalf of all its citizen or a suit brought by a trade association on behalf of all its members. Team Trump challenged the “standing” of states and associations to bring such cases, but the Court decided to kick this can down the road. 

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Trump’s Executive Order on Birthright Citizenship

What Does the Executive Order Claim to Accomplish?

The executive order is prospective. It purports to deny citizenship to future babies born in the United States if (1) the baby’s mother is unlawfully present in the United States and (2) the baby’s father is not a U.S. citizen or lawful permanent resident.[1]

What is the Legal Basis for the Executive Order?

The 14th Amendment provides, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …” 

Thus, if you want to argue that babies born in the United States to undocumented parents are not citizens, then you have to hang your hat on the words “and subject to the jurisdiction thereof.” And you have to make a very strained and slanty-eyed interpretation of that phrase. 

That strained interpretation is the position Trump takes in the executive order. 

A Frontal Challenge to an 1898 Supreme Court Case

Back in 1898, the Supreme Court considered—and rejected—the legal position that Team Trump now espouses. So Trump has to argue (among other things) that the Supreme Court got it wrong in 1898, and that the law has stayed wrong for the past 127 years.

Four Ways to Read the Executive Order

(1) A Test Case before the Supreme Court. A charitable reading is that the executive order is intended as the predicate to a test case, in which the Supreme Court would revisit the issue it decided back in 1898. 

Trump may argue that it’s OK to set up a test case. After all, we all have a constitutional right to be wrong, and we all, including His Most High Excellency, have a right to ask the Supreme Court to embrace our erroneous legal claims.[2]

(2) Defiance of the Supreme Court. An uncharitable reading of the executive order is that Mango Mussolini claims that HE ALONE, not the Supreme Court, may divine the definitive definition of the words in the Constitution. 

(3) Evasion of Supreme Court Review, or, the Cuter Than Bambi Reading. A third interpretation—perhaps even more uncharitable, though very possibly accurate—is Team Trump is attempting to evade Supreme Court review of his novel constitutional argument by 

  • losing all the cases brought by people aggrieved by the order, 
  • avoiding all appeals of such losses, and 
  • enforcing their erroneous legal interpretation against everybody else. 

Some lawyers—not that many, but some—are under the impression that they are cuter than Bambi. This is the sort of horseshit that they come up with. 

(4) The FAFO Reading. Lastly, one may read the executive order as implying that Team Trump hasn’t thought through how to get their novel legal theory accepted. Under this interpretation, they just plan to Fuck Around and Find Out.

What about Retrospective Application of Trump’s Position against Birthright Citizenship?

Someone other than me must surely have spotted this issue—but, if so, I haven’t seen any evidence of it. Here’s the issue. 

Suppose that—some way, somehow—Team Trump gets the courts to all enforcement of the executive order in respect of future babies born to undocumented immigrants. Bear with me on that. Just entertain the supposition.

Logically, that would imply everybody already born in the United States to undocumented parents also lacks U.S. citizenship. 

Would Team Trump be prepared to take that position?

That’s at least five million people, and probably more.

[1] The order also addresses another distinct issue/problem, that of “birth tourism.” That’s an interesting issue, but pales in importance compared to the issue of babies born to undocumented immigrants.

[2] That right flows from the First Amendment right to petition for redress of grievance. And, BTW, Trump also has a constitutional right to ask Congress to pass a law endorsing his view of citizenship. But that wouldn’t work, because any such law would be unconstitutional unless and until the Supreme Court changes its mind about its 1898 interpretation of the Fourteenth Amendment. 

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Mango Mussolini’s Moronic Manufactured Mayhem

Today, many talking heads are talking about the events in Los Angeles as a step on the road to authoritarianism—and an attempt to distract from Team Trump’s many failures.

All true.

And yet there remains an elephant in the room for Team Blue.

As a movement, we do not yet have a coherent and politically viable answer about

  • How to deal with the undocumented people currently present here, 

or about

  • What the rules and procedures for political asylum ought to be,

or about

  • Apart from people with legitimate asylum claims, how many—and who—should be permitted to enter the United States.

Not to have coherent and politically viable answers to these questions is political malpractice.

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Clients are Fleeing Cowardly Law Firms, and Other Significant Legal Developments

Trump Isn’t Appointing Judges Because He Can’t Find People to Appoint

The Wall Street Journal Does a Deep Dive Into All the Big Clients Saying Ixnay to the Cowardly Law Firms

Wall Street Journal, The Law Firms That Appeased Trump—and Angered Their Clients:

Support for the law firms that didn’t make deals has been growing inside the offices of corporate executives. At least 11 big companies are moving work away from law firms that settled with the administration or are giving—or intend to give—more business to firms that have been targeted but refused to strike deals, according to general counsels at those companies and other people familiar with those decisions.

Among them are technology giant Oracle, investment bank Morgan Stanley, an airline and a pharmaceutical company. Microsoft expressed reservations about working with a firm that struck a deal, and another such firm stopped representing McDonald’s in a case a few months before a scheduled trial. 

In interviews, general counsels expressed concern about whether they could trust law firms that struck deals to fight for them in court and in negotiating big deals if they weren’t willing to stand up for themselves against Trump. The general counsel of a manufacturer of medical supplies said that if firms facing White House pressure “don’t have a hard line,” they don’t have any line at all. …

Not long after Latham struck a deal in April, the firm’s chair, Richard Trobman, met with Morgan Stanley’s chief legal officer, Eric Grossman, people familiar with the meeting said. Grossman heard him out about the firm’s reasoning for striking a deal and acknowledged that companies have to do what is best for themselves.

Soon after that meeting, Grossman and other Morgan Stanley lawyers communicated to law firms targeted by the White House that hadn’t signed deals that they were looking to give them new business, the people familiar with the meeting said. …

A top legal executive at another company said she called partners at Paul Weiss before it cut its deal to reassure the firm she would remain loyal, even though doing so risked millions in government contracts. She was shocked when the firm chair Brad Karp announced a deal, she said, and her company has plans to move work away from Paul Weiss.

The day after Paul Weiss struck its deal, female general counsels gathered for a conference in Washington. During a panel at the Women’s General Counsel Network event, a lawyer stood up and said her company had taken steps that morning to pull its business from Paul Weiss. The lawyer received thunderous applause.

About two weeks later, McDonald’s told a court that star Paul Weiss lawyer Loretta Lynch was withdrawing as its attorney in a high-profile lawsuit accusing the fast-food giant of discrimination against Black-owned media companies. Lynch, who had served as attorney general under former President Barack Obama, had been involved with the case for several years. It is unusual for companies to shake up representation close to trial. …

Emotions have run high inside some firms that struck deals, particularly among younger lawyers. At Skadden, Simpson, Latham and Kirkland, some associates have quit over the deals. One associate leaving Simpson wrote in his departure email, shared on LinkedIn, that he refused to “sleepwalk toward authoritarianism.” Partners, too, have left some of the firms that made deals. 

At Sullivan & Cromwell, some lawyers have bristled at the role that co-chair Robert Giuffra played in facilitating a deal for Trump to drop an executive order against rival firm Paul Weiss. Giuffra, one of Trump’s personal lawyers, participated by phone in an Oval Office discussion with the Paul Weiss leader, who was there to work out a deal.

The New York Times Does a Deep Dive Into the Legal Issues Raised by Trump’s Purported Invocation of the International Economic Emergency Powers Act

N.Y. Times, A Fiery Brief Fueled by Conservatives Helped Put Trump’s Tariffs in Peril

This is a legally sophisticated yet understandable exposition of the legal issues. Despite the Times’ headline, the article shows how there is a large degree of bipartisan agreement among legal scholars that Trump’s tariffs are unconstitutional. 

That bipartisan agreement should help the Supreme Court if and when it rules against Trump on the tariffs. 

And, apart from the legal niceties, there is the fact that the tariffs are sending the economy to hell in a handbasket. 

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The Con Man Twice Conned

Washington Post, Trump blames conservative legal world and one of its leaders for tariffs ruling: The President called the prominent judicial activist Leonard Leo a “real ‘sleazebag’” and said the Federalist Society had led him astray in his first term.

N.Y. Times, Trump, Bashing the Federalist Society, Asserts Autonomy on Judge Picks: The president has grown increasingly angry at court rulings blocking parts of his agenda, including by judges he appointed.

Executive Order, Addressing Risks from Susman Godfrey

The First Con

During Trump 1.0, because he thinks like a mob boss, Trump thought he was filling the federal judiciary with sycophants who would always rule his way, no matter about the facts, no matter about the law.

Federalist Society lawyers did a splendid job of conning Trump into thinking they were doing his bidding in their judicial selections.

Now, it has become apparent even to those of the meanest intelligence that most of the Federalist Society judges will not bend the knee to Trump, regardless of the facts, and regardless of the law. 

Because Trump is a person of the meanest intelligence, he has now figured this out, and is busy this week throwing a hissy fit. 

Specifically: where the law affords discretion to the President, it appears the Supreme Court will probably allow him to exercise that lawful discretion, even if he’s acting stupidly, in bad faith, with bad judgment, in ways that harm vast numbers of people. 

BUT … BUT … BUT there is good reason to anticipate that the Supreme Court, along with the majority of the lower courts, will not endorse Trump’s actions when he or his agents

  • unconstitutionally refuse to spend money appropriated by Congress,
  • unconstitutionally dismantle federal agencies, without congressional authorization,
  • unconstitutionally deprive persons present in the United States of life, liberty, or property without due process of law, or
  • unconstitutionally use the powers they have—or claim powers they do not in fact possess—to punish people for the exercise of their civil rights, including free speech, freedom of the press, freedom of association, and freedom to petition for redress of grievances (and note that the latter freedom encompasses the freedom to file lawsuits).[1]

The Second Con

Throughout the four dreadful months of Trump 2.0, Team Trump has repeatedly—relying only on ipse dixit—asserted that it has legal powers that it does not actually have. It’s metaphysically possible that Trump has just acted without any legal advice at all. And it’s metaphysically possible that Trump has received legal advice, but decided to ignore it. That sort of thing does happen. 

But I don’t think he actually acted without legal advice, or that he decided just to ignore the advice he received. It seems much more likely that he got legal advice, but that that advice was deeply flawed. If so, why? Are Trump’s legal counselors merely incompetent—or, on the other hand, are they intentionally maneuvering him into a place where the Supreme Court tells him to back down?

Take the Susman Godfrey executive order cited above. Who the hell drafted that thing? Who the hell told him it was a good idea? Who the hell told him that the courts would go along with him.

Read it. It might as well say, in all caps boldface type, at the top of the page, “THIS EXECUTIVE ORDER IS AN ATTEMPT TO PUNISH CITIZENS FOR EXERCISING THEIR CIVIL RIGHTS, AND TO DETER THEM FROM DOING SO, IN VIOLATION OF THE UNITED STATES CONSTITUTION.”

The current White House Counsel, David Warrington, is a Trump loyalist but has good credentials and has apparently never been subject to legal discipline.

Pam Bondi, the Attorney General, received her law degree from the number 98 ranked school in the country. Her lengthy Wikipedia biography reveals an astonishing number of regrettable circumstances in her legal career—notably, her exuberant embrace of the 2020 stolen election claim.

My thoughts: I don’t care that she’s the Attorney General. If you have the bad sense to ask Pam Bondi for legal advice, then you deserve what you get.

And then, of course, there is Vice President J.D. Vance—a Yale Law graduate who has come to believe Trump should just ignore Marbury v. Madison (decided in 1803, holding that “It is emphatically the province and duty of the judicial department to say what the law is”). 

I don’t know whether anyone is duping Trump about the legal underpinnings of his various attempted usurpations—and, if anyone is doing so, who it is. As I implied above, maybe it’s just Trump gaslighting himself. 

I do know that if any lawyer told Trump he was likely to prevail on, for example, the Susman Godfrey executive order, then that lawyer needs to be disbarred, and that right soon.

And I suspect that when the dust settles and we learn the truth, the chief culprits are going to be Bondi and Vance.  And I think the evidence will show they conned Trump, intentionally misleading him about his chances with the Supreme Court–all with the goal of provoking a constitutional crisis.

[1] And then there are the tariffs. Trump purports to rely on a squinty-eyed interpretation of the International Emergency Economic Powers Act. As a matter of statutory interpretation and application, Team Trump has the legally weaker position, and his adversaries have the stronger position. But his legal case is not so ridiculous that his attorneys should be disbarred for asserting it.