Trump's 'modest' request is a major blow to judicial power

At the same time the Trump administration is seeking an unprecedented expansion of presidential power, it is trying to dramatically limit the power of the courts to impose limits. In a brief filed in the Supreme Court on Thurs., March 13, the Trump administration called for a radical change in the law: an end to the power of federal judges to issue nationwide injunctions.

If a federal court declares a federal law or policy unconstitutional, it has the authority to issue an injunction that applies against the government everywhere in the country. For example, when federal district court Judge Virginia Phillips found the military's exclusion of gay and lesbian individuals to be unconstitutional, she issued a nationwide injunction against the government continuing such discrimination. In the Biden administration, federal courts issued nationwide injunctions to keep his student loan relief from going into effect.

Several federal courts have declared President Trump's efforts to end birthright citizenship to be unconstitutional. The Fourteenth Amendment always has been understood to provide citizenship to all born in the United States regardless of the immigration status of their parents. In an executive order on Jan. 20, President Trump said that after February 19, only those born to citizens or those with green cards would be deemed citizens. Every court to consider this, both federal district courts and federal courts of appeals, have deemed the Trump end to birthright citizenship to be unconstitutional.

The Trump administration filed a brief in the Supreme Court in three of these cases on March 13 with what it called a "modest" request. It said that the Court should limit the injunctions "to the individual plaintiffs and the identified members of the organizational plaintiffs." The Solicitor General's brief then went further and argued that nationwide injunctions are unconstitutional.

This is anything but modest. Holding that federal courts cannot provide "relief beyond the parties to the case" would mean that there would have to be separate lawsuits by every other party that wants the same relief. If an organization sues, all of its members could benefit. And if there is a class action, all members of the class would benefit. But a suit by individuals to challenge a policy, such as the end of birthright citizenship, would mean that anyone else who is affected would have to bring a separate lawsuit.

One alternative, which is being used now, is for state governments to sue on behalf of their residents. But another part of the Solicitor General's brief to the Supreme Court argues that states should not be able to do so. The brief declares: "States cannot raise individual-rights claims against the United States." The United States government thus contends that state governments cannot challenge the Trump effort to end birthright citizenship, arguing that the states cannot "assert the citizenship rights of individuals who live in those States." Restricting the ability of state governments to challenge federal policy would further lessen the possibility of checks on unconstitutional presidential actions.

The primary focus of the Solicitor General's brief was arguing that a decision in one federal district court can have no effect beyond that district. This would mean that a challenge to an unconstitutional government policy would have to be brought separately in each of the 96 federal districts and ultimately in every federal circuit.

The government makes two arguments for this. First, it says that the Constitution limits federal courts to deciding "cases and controversies." The government says that a court cannot provide relief to other than the parties in a lawsuit.

But when a court declares a law unconstitutional it is deciding the case before it, even though there may be a benefit to third parties. If the justiciability doctrines of Article III are met, then there is a "case or controversy" under Article III. When federal courts find the Trump executive order on birthright citizenship unconstitutional, they are literally deciding cases that are properly before it under Article III of the Constitution. There is nothing in the Article III requirement for cases and controversies that says that the relief given in a case only can be granted to, or only benefit, a particular party to the litigation. Quite the contrary, even when a law is declared unconstitutional as applied it sends a message to the government and to other courts that such uses of the law will be struck down. There are others who benefit from the court's ruling and similar cases, not before the court, are effectively decided.

Put another way, nothing in Article III prevents a court from issuing a remedy against a defendant that benefits more than the plaintiff in a lawsuit. Otherwise, when there is an unconstitutional law, the court would be limited to declaring it invalid as to the plaintiffs in that case but leaving the law on the books except as to others who come forward to challenge it.

The Solicitor General's other argument is that nationwide injunctions harm the executive branch in carrying out its constitutional duties. But that is the whole point: if the executive branch is violating the Constitution, it should be stopped. Ending nationwide injunctions would mean that an unconstitutional law or presidential action would remain in effect in every place except in the federal district where the injunction was issued. It is precisely for this reason that the Trump administration wants to end nationwide injunctions: without them it will be far more difficult to halt unconstitutional presidential actions.

There is an understandable concern that a nationwide injunction allows one district court to create a ruling for the entire country. But that is only temporary until the federal court of appeals and ultimately the Supreme Court rules. The alternative of limiting federal court relief to the particular plaintiff or the specific federal district court is far worse.

It is unclear what the Supreme Court will decide as to the permissibility of nationwide injunctions. Justices Clarence Thomas and Neil Gorsuch already have expressed their views against them, as have some conservative lower federal court judges. The irony of this opposition to nationwide injunctions is that conservatives repeatedly requested and championed them in challenges against the Biden administration.

Long ago, Marbury v. Madison declared that it is "emphatically the province and duty of the judicial department to say what the law is." Nationwide injunctions allow courts to do this. Once a federal court declares President Trump's executive order on birthright citizenship unconstitutional, it is appropriate to enjoin it everywhere in the country.