Category: Rule of Law

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

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Trump, the Supreme Court, and Government Employee Firings: Let Us Now Rend Our Garments and Clothe Ourselves in Sackcloth and Ashes!

Washington Post, White House preps for legal fight over firings—despite court victory: A Supreme Court ruling last week means planned reductions in force can continue, but unions and other groups will battle the administration at each step.

N.Y. Times, Supreme Court Keeps Ruling in Trump’s Favor, but Doesn’t Say Why: In a series of terse, unsigned orders, the court has often been giving the green light to President Trump’s agenda without a murmur of explanation.

I’m Sorry, but to Understand Anything About What’s Going On, You Need to Know a Little Something About Preliminary Injunctions

Smith sues Jones, and asks the court for a preliminary injunction, claiming that Jones is quickly, and illegally, creating “facts on the ground” that cannot easily be reversed after a final decision finally arrives. How does the court decide whether to grant the preliminary injunction? Answer: by trying to answer four specific questions:

1. Which side is more likely to win the case, on the facts and the law?

2. If there is no injunction, and if the plaintiff, Smith, ultimately wins the case, can Smith still get justice, for example, by collecting damages? Or are Jones’s current actions doing harm to Smith that is “irreparable”?

3. If Smith is going to suffer “irreparable harm,” is that harm nevertheless outweighed by the harm that Jones will suffer if the court forbids acts that may ultimately be found to be lawful?

4. Apart from Smith’s interests, and apart from Jones’s interests, what is the public interest?

Whenever a legal rule requires a court to pour a bunch of factors into a pot, stir them around, and then see what the resulting brew tastes like, the process is likely to be somewhat messy and somewhat unpredictable. That said, most lawyers understand that the first factor—we call it “likelihood of success on the merits”—tends to be dispositive.

Trump v. American Federation of Government Employees

In this case, decided a week ago, eight of the nine justices joined in a short opinion saying that the government employees union should not get a preliminary injunction, because it was unlikely, at the end of the day, to prevail on its claim that Team Trump was illegally planning to fire lots of workers. I wrote about the case last week. 

McMahon v. New York

The McMahon Supreme Court ruling came a few days later, on Monday of this week. As in the American Federation case, the Court ruled for Team Trump. (The case was about whether mass firings at the Department of Education could continue, while the courts were dealing with the case on the merits.) Unlike the American Federation case, this was a 6 to 3 decision, not an 8 to 1 decision. And, unlike the American Federation case, the majority offered no explanation whatsoever about how it applied the four factor test, and about why it reached the result that it reached. 

In many quarters, McMahon engendered a noisy wailing and gnashing of teeth, and a call for all law-abiding citizens to rend their garments and dress in sackcloth and ashes—because the Supreme Court has gone over to Darth Vader. 

They may be right. But my view is that the catastrophists are a little premature. I shaved with Occam’s razor this morning, and Occam and I both submit that, having explained their reasoning in the union case, the majority probably acted differently in McMahon because there were not six justices who were willing to say in black and white that they thought the government would be proven right on the merits. 

And, if Occam and I are speculating correctly, the assumed caution is a reason for cautious optimism. And the assumed caution would be fully justified. Certainly, as to the massive government firings, there is one hell of a lot of litigation yet to come. 

Justice Sotomayor’s Dissent in McMahon (Joined by the Other Two Liberals)

I promised a friend that I would reproduce the dissent. So here it is.

24a1203_pol1Download
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As Predictable as Day Follows Night, As Friday is the Day After Thursday

Politico, ‘This is why people don’t trust government’: Nikki Haley pushes for Epstein files: The former ambassador to the U.N. called on the Trump administration to release the documents “and let the chips fall where they may.”

I had already written this post in my mind before I read the Politico story, published about an hour ago. 

Trump Has Scored a Famous Victory Over the MAGA Influencers. Or Has He?

Today, the talking heads are talking nonstop about how Trump seams to have beat the Epstein conspiracist MAGA influencers into submission—and how they’re singing a different tune from the one they sung on Friday, Saturday, Sunday, and part of Monday.

And whether or not Trump’s effort to tell his base to forget about Epstein will work or not. 

The answer is that it all depends. It depends on whether the lunatic part of our American brethren and sistern will choose to believe Trump or whether they will choose to believe what they have believed about the pedophile ring coverup for the past decade. And a basement full of trafficked children in a Washington pizza restaurant that doesn’t have a basement.

That’s because the term “influencer” is inaccurate and misleading. The MAGA influencers don’t really influence. What they are good at spouting back to their listeners and viewers what their listeners and viewers want to hear. 

As I would have said back when I was practicing antitrust law and relying on forensic microeconomists, the influencer competition for market share is fierce, the market is dynamic, and entry is easy. Just video yourself on your smartphone, post the video on YouTube, and start making money.

Given the market structure, given the incentives, and given the Zeitgeist, it is inevitable that some would-be influencers are going to come along spouting the theory that the pedophile ring has got to Trump and that he has gone over to the dark side. 

I didn’t predict—though I should have predicted—that Nikki Haley would be among the first to stride across the stage in her high heels and begin the competition to sell alternative conspiracy theories.

Others will follow. Many others.

Game on. Now it’s up to the base to see which competing conspiracy appeals to their deformed, paranoid minds.

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The N.Y. Times Finally Catches Up on Trump v. CASA, “Nationwide” Injunctions, and Class Actions

Adam Liptak (N.Y. Times), Trump’s Birthright Citizenship Ban Faces New Peril: Class Actions: In last month’s decision limiting one judicial tool, universal injunctions, the court seemed to invite lower courts to use class actions as an alternative.

And, While You’re Over at the Gray Lady, Check Out:

N.Y. Times Editorial Board, ‘I Am Not an Idiot’: Dozens of Federal Judges Have Had It With Trump

The U.S. Justice Department normally employs about ten thousand lawyers. When you fire all the competent ones and replace them with hacks who were lucky to survive the first week of law school, this is what you get.

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Chicken Little Clucks Again: The Supreme Court and the Federal Employees’ Lawsuit

A couple of days ago, on July 8, the Supreme Court issued its ruling in Trump v. American Federation of Government Employees. There was a two-paragraph unsigned decision by eight of the nine justices, there was a short concurring opinion by Justice Sotomayor explaining why she went along with the conservatives on this one. (Justice Kagan, who also went along with the conservatives but didn’t say anything on her own, presumably agreed with Justice Sotomayor.) And there was a lengthy and strong dissent by Justice Jackson.

The case involved Trump Executive Order 14210, dated February 11. You can read it here—and it might be a good idea to take a gander, because you will see that it orders the executive agencies to develop some plans, and to do so in accordance with applicable law. 

Now Team Trump has some pretty screwy notions about what applicable law requires and doesn’t require. And the plans to be developed—essentially, schemes for a massive reduction in the federal workforce—would call for very unwise and very probably illegal actions to be taken.

Still, they were just plans. And the question before the Court was whether Trump was likely to win in his claim that the Constitution doesn’t prevent him from making plans—plans that he claims will be in accord with applicable law. 

As I said, eight justices—two liberals, three wingnuts, and the three judges in what passes these days for the middle—all agreed that “The District Court enjoined further implementation or approval of the plans based on its view about the illegality of the Executive Order …, not on any assessment of the plans themselves. Those plans are not before this Court.”

In the Wake of the Decision

A number of lawsuits involving specific federal agencies remain ongoing. In a couple of cases, Trump’s plans have been blocked, and the validity of those injunctions was not before the Supreme Court this week. Much additional legal activity will surely follow. 

Meanwhile, a plethora of catastrophizing headlines scream that the Supreme Court has given Trump the green light to fire federal workers.

True—but misleadingly incomplete. What they have actually done is to give Trump the green light to try to institute a massive reduction in force, and to do it as fast as they can, before litigation catches up with them. That said, there is also a green light for courts to enjoin the hell out of RIFs in specific agencies, if the RIFs don’t comply with a whole lot of legal rules, including the requirement that Congress be consulted on massive changes to the federal workforce.

The labor lawyers are going to have a good year.

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I Told You So

What Just Happened

Contrary to the views of headline writers who did not go to law school and who suffer from chronic confirmation bias, in the recent case of Trump v. CASA, the Supreme Court opened the door to nationwide injunctions against Trump in cases where plaintiff classes have been certified according to Rule 23 of the Federal Rules of Civil Procedure. 

Today, the first such injunction was granted, by a federal district judge in New Hampshire, in a case spearheaded by the American Civil Liberties Union and its allies. 

The judge “ruled from the bench”—meaning that the formal text of most of his ruling isn’t available, at least currently. (The order certifying the class, however, is found here. As I predicted, Trump’s own executive order does a fine job of defining the class that is being certified.)

The ACLU’s press release reads in part,

CONCORD, N.H. — A federal court in New Hampshire today blocked President Trump’s executive order restricting birthright citizenship and certified a nationwide class that protects the citizenship rights of all children born on U.S. soil. The case is Barbara v. Donald J. Trump.

The ruling stems from a nationwide class-action lawsuit filed June 27, immediately after a Supreme Court ruling that potentially opened the door for partial enforcement of the executive order.

The American Civil Liberties Union, ACLU of New Hampshire, ACLU of Maine, ACLU of Massachusetts, Legal Defense Fund, Asian Law Caucus, and Democracy Defenders Fund brought the challenge on behalf of a proposed class of babies subject to the executive order. It seeks to protect all impacted families in the country in the wake of the Supreme Court’s recent decision in Trump v. CASA, which directed courts to consider narrowing nationwide protection that had been provided in the first round of challenges to the executive order attacking birthright citizenship.

The groups were in court today successfully arguing for a preliminary injunction and nationwide class certification. The ruling was made from the bench.

In granting the request, the court provided for a 7-day delay so that the government — which argued to the Supreme Court that a nationwide class was the appropriate way to seek nationwide protection in the birthright cases — could nevertheless try to get the First Circuit Court of Appeals to stay the relief, if it decides to pursue that option. Even with a 7-day delay, the ruling will go into effect well before July 27, when partial implementation of the unconstitutional order might otherwise have begun.

“This ruling is a huge victory and will help protect the citizenship of all children born in the United States, as the Constitution intended,” said Cody Wofsy, deputy director of the ACLU’s Immigrant’s Rights Project, who argued the case.“We are fighting to ensure President Trump doesn’t trample on the citizenship rights of one single child.”

What Happens Next?

Team Trump could wait for more decisions along the same lines by district courts around the country, in order to forum shop for the best appellate court. More likely, I think, is that they will appeal to the federal appellate court in Boston, which will quickly rule in the ACLU’s favor, so that the Supreme Court will have to address the merits of birthright citizenship very soon. 

And what will happen then?

Well, maybe Justices Thomas and/or Alito and/or Gorsuch will quibble with whether a class should have been certified—or raise some other arcane, pettifogging objection to jurisdiction. Or maybe one of them will receive a revelation from the Angel Moroni that all class actions are unconstitutional. 

You never can tell. But I am confident that at least five of the justices will continue to adhere to language of the Fourteenth Amendment and to reject Trump’s interpretation, just as the Supreme Court ruled back in 1898 in the Wong Kim Ark case. 

And what will happen after that?

What will happen after that is that large pieces of shit will hit the fan. 

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A Legal Seminar for the Fourth of July

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. 

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Birthright Citizenship: After Trump v. CASA, What Comes Next?

This follows up on my prior posts on Trump’s Executive Order on Birthright Citizenship and “Nationwide” Injunctions, Birthright Citizenship, and the Supreme Court Decision in Trump v. CASA.

So, what comes next?[1]

Justice Barrett on What Comes Next

Justice Barrett wrote a 26-page opinion, speaking for herself and five other justices. In footnote 2 she wrote, “The Government does not dispute—nor could it—that the individual plaintiffs have standing to sue.” The individual plaintiffs are, of course, Liza and her newborn baby, the three other undocumented new mothers and babies, along with Maribel and the baby she is expecting, plus Juana and the two other undocumented women who might become pregnant.

All of these plaintiffs have already received preliminary injunctions blocking Team Trump from enforcing its executive order as to them. Justice Barrett stays these preliminary injunctions “but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.” 

As to “each plaintiff with standing to sue,” the justice has already said that the four new mothers, their four little babies, the pregnant mother, her unborn child, and the three women who might get pregnant all have standing to sue.

As to “complete relief,” Justice Barrett says she means a prohibition on Team Trump’s enforcement of its executive order against those specific 13 people. 

Footnote 18 of the majority opinion anticipates that Team Trump will not play cute by declining to appeal adverse rulings on specific plaintiffs while attempting to enforce the executive order against others. Instead, the justice says that she has extracted a promise, in open court, that yes, the government will appeal if it loses, and, yes, if the Supreme Court rules on the merits against Trump, then the government will abide by the Court’s ruling. 

So that’s what Justice Barrett thinks is going to happen.

The problem, of course, is that Team Trump is comprised of liars, and the truth is not in them. On birthright citizenship, Team Trump has promised to stop playing legal games. If Justice Barrett places full faith and credit on that promise, then I have a nice bridge in Brooklyn that I’m willing to sell at a reasonable price.

Would Class Certification Under FRCP Rule 23 Fix the Lying Liar Pants on Fire Problem?

Yes, it would. Because, where a class is certified, a court can grant injunctive relief to the whole class, not just the specific named plaintiffs. 

Plus, of course, if there is class certification, then there is no longer any need to perseverate over whether, absent class certification, the Judiciary Act of 1789 does or does not forbid “nationwide injunctions.”

And take note that, while Justice Barrett’s majority opinion said nothing about class certification, the class action option was raised in concurring opinions by Justice Alito and by Justice Kavanaugh.

What Issues Will be Raised by a Motion to Certify a Class?

Rule 23 is complex and verbose. A party opposing certification usually has lots of issues to raise and lots of language to work with—and a whole lot of hoops to make the other side jump through. I’m going to give you a quick and dirty version of how I see it playing out here.[2]

Class Definition and Related Issues. A class action decision is binding on the whole class—if the class loses the case, then individual members of the class are bound by the loss, and cannot relitigate the question. For that reason and others, a class definition must be clear, and it must be relatively easy to know who’s in the class and who’s out of it. And, on a related note, there must be some feasible means to give all class members notice of the pending litigation.

For example, if your proposed class is “all female employees of Walmart who have suffered discriminatory treatment on account of their gender,” the definition is arguably too loose to justify class certification.

Here, however, in the executive order, Trump himself has explicitly defined the class of people he seeks to mistreat.

Uniform Treatment of All Class Members. Rule 23 recognizes that class action treatment may be appropriate when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”

If you try to define a class of “all female employees of Walmart who have suffered discriminatory treatment on account of their gender,” the Walmart is going to argue that there are eight million stories in the naked city, and there’s no way to lump all these stories into one big lawsuit. Pretty good argument. But suppose that Walmart had issued a formal written policy providing that all female employees were to be paid at 80 percent of the salaries of male workers with corresponding jobs. Class action litigation to challenge that uniform policy would be entirely appropriate. 

Conflicts of Interests and Objectives Within the Defined Class. Sometimes this is a big issue, but not, I think, here. I don’t think there a whole lot of fertile undocumented women who hope their babies will be deprived of U.S. citizenship—and thus risk statelessness. 

Calculation of Damages. If the proposed class is seeking damages for past misconduct, the defendant will often argue that it’s difficult or impossible to use a single formula to calculate the damages accruing to each member of the plaintiff class—and that, accordingly, individual legal questions predominate over common legal questions. But that’s a moot point here, because the object of the lawsuit would be injunctive relief to prevent future harm, not damages. 

To me, all the relevant factors point toward the use of class action litigation to challenge the executive order. 

So, What Class Action Action Have We Seen Since the Supreme Court’s Decision Last Week?

We have seen that

  • The CASA v. Trump lawsuit has been recast as a putative class action
  • The American Civil Liberties Union, joining with a number of other partners, has brought a putative nationwide class action on birthright citizenship, and
  • Other class action litigation may be in the works.

[1] And specifically, what comes next for the legal claims of the plaintiff undocumented immigrant mothers, as distinguished from the claims of the states and of the organizations suing to protect birthright citizenship?

[2] I dealt with class certification issues throughout my 35 years of antitrust legal practice.