When the Supreme Court issued its ruling about two weeks ago in the Trump v. CASA, Inc. case involving President Donald Trump’s birthright citizenship Executive Order, commentators and critics alike signaled the monumental effects of the decision. The Court certainly did not say or do anything to suggest that the President’s Executive Order would be upheld—indeed the only Justices who discussed the “merits” of the order (rightly) blasted its legality in a dissenting opinion (and all analysts I know predict the order will ultimately be invalidated by the Justices). But the Court’s more general cutting back on so-called “universal injunctions”—that is, orders by federal district court judges directing defendants to refrain from enforcing allegedly unconstitutional laws and policies not just to the plaintiffs who themselves have sued to block those policies, but to all other persons as well—was thought to be a big, big deal.
As one major press account put it, the “ruling largely eliminat[es] the main tool that his opponents have used to thwart” President Trump’s agenda.” Dissenting members of the Court were even more alarmist. Justice Sonia Sotomayor wrote that “[n]o right is safe in the new legal regime the Court creates,” and Justice Ketanji Brown Jackson went even further still to say “[t]he Court’s decision to permit the Executive to [enforce allegedly unconstitutional policies] with respect to anyone who has not yet sued is an existential threat to the rule of law.”
What a difference a few weeks make. Two significant recent developments make clear that much of the initial reaction to the ruling was overstated.
First, at least one lower federal court in the CASA litigation has responded to the Court’s calling into question the common use of universal injunctions by pursuing an invitation issued by the Court in CASA itself, namely to (provisionally) certify a nationwide class action of soon-to-be-born-on-U.S.-soil persons who are the target of President Trump’s executive order, and grant that class relief that prevents the Administration from enforcing the order against any class members as the case makes its way up the court system. In effect, the provisional class certification and grant of relief to all members of the class protect persons potentially affected by the Executive Order just as much as did the universal injunctions the Court called into question. Indeed, in some ways more so. That is because, as I explained in an earlier co-authored column, there is serious question about whether a non-plaintiff against whom a law is being enforced in violation of a universal injunction would have any meaningful recourse against federal government officials who flout the universal injunction, insofar as conventional doctrines surrounding the contempt-of-court device (the major mechanism for ensuring compliance with judicial orders) combined with the President’s pardon power would not seem to leave non-party beneficiaries meaningful recourse. By contrast, once a class action is certified (even provisionally), all the members of the class are technically parties to the case, and each one of them would be entitled to seek civil compensatory contempt sanctions if the judicial decree were ignored as to him. That is why, in my earlier column, I argued that class action certification was in some important respects preferable vis-à-vis universal injunctions not just for the government (because the class route makes both plaintiffs and the government run symmetrical risks of losing on the merits in a binding way in the court in which a class is certified) but also in many respects for the plaintiffs too. The limited enforceability of universal injunctions was a main theme of Justice Jackson’s oral argument questioning—why, she in effect asked, should we be so troubled by judges issuing universal injunctions when they really don’t impose enforceable constraints on the federal government? But then, rather inexplicably, in her dissenting opinion in CASA, she characterized the loss of this mechanism against the federal government as a threat to American democracy. But she never explained why cutting back on universal injunctions so jeopardizes the rule of law when such injunctions against federal officials—the folks she seems most worried might flout the rule of law—are not, as she herself painstakingly showed at argument, meaningfully enforceable by contempt.
This is not to say that some prospective victims of alleged lawlessness might not still prefer to have recourse to universal injunctions. For one thing, while the CASA Court’s focus (and that of the dissents, too) was on universal injunctions against the federal government, the Court’s analysis likely calls into question the use of universal injunctions against other defendants, too, some of whom would be more easily susceptible than federal officials are to federal-judge-initiated criminal contempt. Second, in a world where government officials comply with judicial orders not because of threats of contempt but simply because they want to respect judicial commands (and I honestly don’t know whether we are in such a world today), the demise of universal injunctions would, as I noted in my earlier column and above, restrike the balance between challengers to a law and government defendants, perhaps in ways that are more symmetrically fair to the government, but at some corresponding cost to challengers. But even here, we should not overstate the consequences of the CASA ruling, as a second recent development helps remind us.
That development involves a ruling last week by a district court judge in Los Angeles to prevent Immigration and Customs Enforcement (ICE) personnel from over-relying on an individual’s skin color, accent, occupation, and physical location in deciding whether to detain that person for investigation of the person’s immigration status. The case was brought by (among others) several individuals, some of whom are U.S. citizens, who were detained by ICE officials allegedly based exclusively on some combination of the four factors identified above. The plaintiffs argued that the Fourth Amendment’s requirements that government have individualized reasonable suspicion or probable cause of a person’s wrongdoing before that person can be seized was being violated by ICE policy weighed too heavily those four factors. On the merits of the claim, both sides seemed to agree that reliance on those four factors alone, without other additional, individualized indicia of illegality, would violate the Fourth Amendment; the dispute seemed to be about what factors ICE was/is in fact using to detain people in the Los Angeles area. For present purposes, however, we need focus not on the merits but the remedy. After finding that the plaintiffs were likely to be able to show that ICE policy does impermissibly rely on those four factors alone, the district court judge enjoined ICE from continuing to implement such a policy not just as to the named plaintiffs, but as to anyone in the Central District of California. In other words, the injunction in this case went beyond telling the defendants how to treat the plaintiffs; it told the defendants how they must treat everyone in the district. In this crucial respect—the injunction going beyond the defendant’s treatment of the particular plaintiffs in the case—the district court’s order implicated the same concern (about overly broad judicial remedies) that lies at the heart of the dispute over universal injunctions.
But as the LA case illustrates, both before and after CASA, judges can always grant relief that goes beyond the plaintiffs when such relief is needed to fully protect the plaintiffs themselves. In the ICE setting, there is no practical way for ICE to refrain from overly relying on the plaintiffs’ race, accent, occupation, and location in detaining them again without also refraining from overly relying on those factors as to others. This is so because ICE doesn’t know whether one of the persons it detains in the future, based on its alleged policy in place, is one of plaintiffs who is protected by the order—it doesn’t know the identity of those it has detained until after the (ostensibly illegal) detention has taken place. So the only way to fully protect the plaintiffs themselves from being wrongfully detained by ICE going forward (and plaintiffs had to make a showing that they are reasonably likely to be detained again given where they live and ICE’s policies in the LA area) is to grant relief that protects other individuals as well. This traditional exception to the rule—a rule on which the CASA Court relied—that relief should not go beyond the actual parties to a case is an important reminder that courts have a lot of tools in their kit. Assuming this traditional power for courts to go beyond parties in order to fully protect parties is not questioned by the Supreme Court (and I see no reason to think it will be), and as long as the Court doesn’t step back in to the CASA matter to question the district court’s certification of a class (and I don’t expect the Court will revisit the matter), the initial anxiety over the CASA ruling should subside over time.
