Pollyanna’s a busy young lady, so dear old dad doesn’t get all that many calls from her. Today, though, she called to offer an interesting working hypothesis—a hypothesis about the possible effect of the Big Beautiful Bill.
Not a prediction. A working hypothesis.
Here it is, but first some background.
As she pointed out, Trump’s policies are disastrous for everyone, including the business and financial elite. Consider tariffs. Consider the gutting of clean energy, at a time when energy demand is exploding. Consider the effect of mass deportation on the work force. Consider inflation. Consider the effort to obliterate American scientific leadership. Consider the deficit.
Observe that most of the economic elite does not live in an information bubble. All the effects we just listed are fully reported in the Financial Times and the Economist. Even the Wall Street Journal recognizes most of them, most of the time.
Assume, for the sake of the discussion, that the average member of the elite does not give a tinker’s damn about anything other than his or her own economic interests. But assume they do in fact care deeply about their own economic interests, and that, as a group, they have a generally accurate picture of what is going on.
Given all that, the working hypothesis—the hypothesis that isn’t a prediction, just a hypothesis—goes like this:
generally speaking, the economic elite have been motivated, above all else, to secure permanent extension of the Trump tax cuts, and
accordingly, the economic elites have greatly tempered their objections to Trump’s disastrous policies, largely out of a concern not to upset the delicate political apple cart before passage of the Big Beautiful Bill, but
now that the tax cuts are locked in statutory cement, the business and financial elite will feel significantly freer to try to stop Trump’s sabotaging of the American economy.
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.
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.
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.
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.
An alternative title might be, “Defense Intelligence Talks, Bullshit Walks.”
Mango Mussolini is fit to be tied:
White House press secretary Karoline Leavitt pushed back on the report’s conclusions, while not denying its existence. “This alleged ‘assessment’ is flat-out wrong and was classified as ‘top secret’ but was still leaked to CNN by an anonymous, low-level loser in the intelligence community,” Leavitt wrote on X.
“The leaking of this alleged assessment is a clear attempt to demean President Trump, and discredit the brave fighter pilots who conducted a perfectly executed mission to obliterate Iran’s nuclear program,” she wrote. “Everyone knows what happens when you drop fourteen 30,000 pound bombs perfectly on their targets: total obliteration.” …
Rep. Mike Quigley (D-Illinois), a member of the House Intelligence Committee, told The Washington Post there is widespread belief in Congress that the embarrassing content of the assessment is the reason why the Trump administration decided to delay the classified briefing. ““They don’t delay briefings that have good news,” Quigley said.
Quigley declined to discuss the contents of a classified briefing he received earlier this week. But he said that for years he’s been told by U.S. intelligence officials that any aerial attack on Iran’s nuclear facilities would not have a lasting impact.
“I’ve been briefed on the likelihoods of how this would play out for years, and I was always told you have to finish the job with troops on the ground,” he said. “Nothing has changed my mind on that.”
The vibe this Monday evening is of Iranian token retaliation and of a coming cease fire.
Maybe.
Or maybe not. Maybe whoever is running Iran tonight, or whoever will be running Iran tomorrow, is lulling President Numbnuts into unjustified complacency, turning around the trick he pulled on them. Meantime, The Economist takes a deep dive into what’s happening in Iranian politics.
On june23rd Iran’s regime ignored President Donald Trump’s warnings and attacked American military bases in Qatar and Iraq. Missiles could be seen over skyscrapers in Doha, Qatar’s capital. While the damage and casualties appear minimal, the war has reached the Gulf, whose glimmering cities offer an alternative vision of the Middle East and whose energy the world needs. The strikes outside Iran come alongside a sudden, ominous power shift inside it. Military hardliners are grabbing power from clerics. That could mean they try to extricate themselves from the war now in order to fight another day. But in the medium term it could signal that the regime becomes more extreme, not more pragmatic, under the pressure of a devastating military campaign.
One reason for this shift is that Iran’s elite fears it is in a struggle to preserve the country’s political system. Mr Trump has signalled he might approve the overthrow of the clerical-military order. “Why wouldn’t there be a regime change,” he asked on June 22nd. Strikes against non-nuclear targets have galvanised elements of an outraged Iranian public behind the regime. But most important of all, there has been a shift in who holds power at the top as a result of the war. The military men have gained ascendance over the religious clerics for the first time since Iran’s revolution in 1979. And they are not moderate.
Iran’s supreme leader, Ayatollah Ali Khamenei, is 86, and for years there has been speculation about succession, although who might gain the upper hand has been far from clear. The war is changing that, turbo-charging a power shift to the regime’s military arm, the Islamic Revolutionary Guard Corps (irgc). In the first days of the fighting Mr Khamenei, ageing and isolated for his own safety, disappeared from the scene like the Shias’ hidden Imam. He delegated decision-making to a new council, or shura, dominated by the irgc. “The country is in effect under martial law,” says an observer.
As the irgcgains control its elite is being transformed at speed by Israel’s assassinations. Gone are the veteran commanders who for years pursued “strategic patience”, limiting their fire when their totemic leader, Qassem Soleimani, was assassinated in 2020, and holding it when Israel battered their proxies, Hamas and Hizbullah, in 2024. Now a new generation, impatient and more dogmatic, has taken their place and is bent on redeeming national pride. “The maximalist position has been strengthened,” says an academic close to the reformist camp. He claims the decision-makers in place before the war were debating whether to ditch their anti-Israel stance. But “everyone is now a hardliner”.
Compounding the generational shift is a newfound cohesion in a military-industrial complex renowned for paranoia and scheming. A year ago the regime was rocked by infighting. Businessmen, military professionals and ideologues battled for supremacy inside the irgc. Hardliners chased pragmatists from state institutions. Rival factions blamed each other for the death of the country’s president in a mysterious helicopter crash in 2024. Now they appear to be coalescing against a common foreign enemy.
How much public support does this emerging new power configuration enjoy? Many Iranians rue the billions of dollars their generals squandered on two decades of pointless proxy wars and even now some in Iran are describing the Israeli-American strikes as chemotherapy to remove cancerous cells. Increasingly, Israeli bombardments seem designed to tap into this seam of dissent and destabilise the country. Recent targets in Tehran include the police headquarters and the entrance to Evin, Iran’s jail for its most prominent political prisoners.
Yet in parallel the war has triggered a nationalist surge and narrowed the gap between ruler and ruled. No one has responded to calls from Binyamin Netanyahu, the Israeli prime minister, or Reza Pahlavi, the royalist pretender, for a popular uprising. Early admiration for Israel’s military prowess has turned to outrage as its targets have widened and the death toll has mounted. Scorn for the irgc’s haplessness has turned to pride at the speed with which it has reconstituted. Iranians who fled the capital are coming back. Those who once championed Israel are now handing over suspected Israeli agents to the police. Female political prisoners, the mothers of executed protesters and exiled Iranian pop stars have all issued calls to rally to Iran’s defence. “It’s backfired on Bibi,” says a former official turned dissident, using the nickname of Mr Netanyahu.
The shift at the top could dramatically alter decision-making in Iran. Hardliners have always been against talks with America. They remember Muammar Qaddafi, the Libyan dictator, who surrendered weapons of mass destruction in exchange for a lifting of sanctions, and Saddam Hussein, who granted unmonitors unfettered access to Iraq. Both were toppled by Western interventions. Now even moderates feel burned: the last round of talks with America, set for June 15th, fooled them into lowering their guard just as Israel attacked.
More could be to come. Within hours of America’s strike, Iran’s foreign minister, Abbas Araghchi, warned of “everlasting consequences”. Iran’s parliament has voted to close the Strait of Hormuz, a chokepoint through which 30% of maritime oil supplies flow (its vote is not binding). It is also considering a bill requiring Iran to withdraw from the Nuclear Non-Proliferation Treaty and cut co-operation with the un’s nuclear watchdog, the International Atomic Energy Agency.
The big question is whether the regime now pauses or pursues something worse. Some had sought to downplay the fallout from America’s bunker-busting strikes on Fordow and two other sites, perhaps to buy time and a greater margin of manoeuvre in firing back. While Donald Trump celebrated the “monumental” obliteration of Iran’s main nuclear sites, Iran’s leaders initially pointed to the absence of radiation and questioned their efficacy. America’s bombs were only twice as big as those used by Israel to hit the bunker of Hizbullah’s leader in Beirut last year, and Fordow’s chambers lay 25 times deeper than that.
But without a trusted mediator and no obvious off-ramp the more sober-minded appear to have been pushed aside. Many generals are eager to maintain their strikes on Israel which, they argue, have punctured its aura of invincibility. Israel’s destruction of half their missile launchers has slowed the rate, they admit. But more advanced systems, perhaps launched from the sea, are to come, says Mohsen Rezaei, a former irgc commander.
A growing caucus advocates dashing for a bomb. In the run-up to the American attack, Iran removed stockpiles of enriched uranium, and perhaps centrifuges from the targeted sites, claims an insider. Satellite imagery from June 20th shows a queue of trucks at Fordow’s gate. Some are suggesting detonating a nuclear device to prove Iran’s capability. Others advocate dropping a warhead coated in weapons-grade uranium on Tel Aviv. “Sure as anything they will be going for a nuke. It’s absolutely disastrous,” laments a Gulf mediator.
The shift from religious to military authority has some advantages. Ayatollah Ruhollah Khomeini, the original leader of Iran’s revolution, warned against allowing the irgcinto politics, fearful they might dispense with his theocracy. With the clerics confined to their seminaries, there might be an easing of the regime’s religious strictures. In recent days state television has shown women with hair poking out from their headscarves. But the prospect of Iran being ruled by its new shuraindefinitely has other consequences, not least an even more militarised state hellbent on defiance and reprisals, and more ruthless in tamping down internal dissent. The outside world has often assumed that Iran’s regime exhibits reckless risk-taking and belligerence because it has been run by religious men. The danger is the military men are worse.
