Thread by @ProfMJCleveland

🧵on SCOTUS Nationwide Injunction re birthright citizenship case. Couple preliminary points: The argument is NOT about the merits of the birthright citizenship case. You may hear reference to the APA or the Administrative Procedure Act. This case does NOT concern APA. 1/

2/ Justices may reference APA b/c whether nationwide injunctions are appropriate under APA is a different issue (again not before the court). You'll also hear discussion of "organizational standing". Standing means ability to "stand" before court & ask for remedy b/c YOU are hurt

3/ Organizations have "standing" to sue if at least one member has standing to sue. But to have a remedy, Trump Administration maintains CASA, the organizational plaintiff, must establish which members are actually injured (by affidavit) & injunction is limited to them.

4/ Argument started: John Sauer is the Solicitor General. Starting by explaining that EO on birthright citizenship is consistent with original understanding of 14th Amendment, but pivots to nationwide injunctions. Stressed violation of Article III jurisdiction, violate equitable

5/ principles and then details practical problems of nationwide injunctions.

6/ Justice Thomas: Please discuss origins & historical analogues, and "Bill of Peace."
Sauer: Bill of Peace is distinct from nationwide injunctions, this developed to modern class action. (I don't know what it is.)
Justice Kagan (?): This is really same as Bill of Peace.
Article III & principles of equity is your argument, so SCOTUS can't even do that, so how do we bind lower courts. That makes no sense: If SCOTUS doesn't have power to settle, then how does that work.
Justice Kagan: Trump is violating 4 Supreme Court precedents, so this is merely enforcing our precedent. And you are claiming, that neither Supreme Court or lower court can stop an executive?
Sauer: No, in an appropriate action, in other words, once you address merits of the case, it is binding. AND we fully disagree with merits.
Justice Roberts: What about a plaintiff challenging redistricting district.
Sauer: Remediating injury may have collateral benefit to other non-plaintiffs, but that is different.
Justice Jackson: Why does court require that?
Sauer: In Article III, that is principle, we grant remedy tailored to Plaintiffs.
Justice Jackson: We haven't in many cases required to limit to Plaintiffs. Manufacturer releases pollution and neighbor sues.
Justice Barrett: Could a neighbor sue affirmatively to hold in contempt?
Sauer: No. Not binding on neighbors.
Me: These collateral consequence questions are stupid because the answer is easy. Justice Kagan questions were the challenging ones.
Barrett: Could they bring Rule 23?
Sauer: We'd challenge, but they could.
Barrett: Assume States have standing, why wouldn't nationwide injunction be necessary?
Sauer: Limit to where there is pocketbook harm.

7/ Correction: It was Sotomayor not Kagan earlier.
Justice: Pushing on class certification.
Sauer: Even if problems, that doesn't give right remedy.
Justice: Do we need to get to Article III?
Sauer: No, because Congress only gave jurisdiction to suits of equity & there is no basis of for equity.
Justice Sotomayor (?): If we assume view of law is wrong. How do we get to that result? Does every person affected by EO have to bring suit?
Sauer: Says maybe Rule 23.
Justice Sotomayor: If Rule 23 put aside, how do we get there?
Sauer: References equity.
Justice Sotomayor: Yes abuse of nationwide injunction, how do we get there.
Sauer: Lower courts and then this court.
Barrett: Are you really saying no quick way?
Sauer: Yes, could resolve quickly.
Justice Kagan: (?) Will POTUS respect Circuit Court?
Sauer: Maybe. That's what Article III says.
Justice Kagan: SCOTUS decides would you respect? 3 or 4 years
Sauer: Yes.
Justice Roberts: 3 years or 4 years, we can do in shorter time frame, i.e. Tic Tok. Notes this can happened.
Justice Thomas: When was first?
Sauer: 1960s maybe 1940s.
Justice Thomas: So we survived until 1960s.

8/ Justice Alito: You said problems with universal injunctions, would practical problems addressed if we allow states to litigate and allow emergency?
Sauer: No. But Article 3 still answers.
Justice: If Article 3 prohibits remedy to Plaintiff, how are class action be allowed?
Sauer: No, class actions involve all Plaintiffs.
Justice: Shouldn't we grant cert before judgment? Given harm. Me: Justice says Congress decides citizenship, not executive. Strange because Plaintiffs argues 14th Amendment demand citizenship. SO why would Congress decided.
Sauer: No party has asked for that and reason is that it would deny consideration of lower courts. Respectfully: We have lower courts making snap judgement.
Justice: You claim no constitutional way to stop a President from a clearly unconstitutional act, i.e., taking every gun from every citizens.
Sauer: There isn't a "really, really unconstitutional exception" to Article III."

9/ Justice Kagan: What if you keep losing why would you ever take substantive question to us?
Sauer: We have an adversarial system and someone will ask SCOTUS to take.
Justice Kagan: This isn't a hypothetical, this is happening!
Me: Justice Kagan is creating a non-sensical hypothetical.

10/ Justice Gorsuch: How do we reach this expeditiously?
Sauer: Let lower courts' perculate and then we will seek cert.
Justice Kavanaugh: Problem is class remedy without class certification. What basis would you oppose class certification? You've promised that as a cure-all.
Sauer: Oppose if temporarily or illegally...commonality. It is possible for class certification.
Justice Kavanaugh: Could Rule 23 certification have been used in other cases with nationwide injunction.
Sauer: Disregarding appropriate procedures for this type relief.
Justice Kavanaugh: Quotes principle of stare decisis where Executive can't enforce.
Sauer: Agree 30 day period hasn't started yet so there will be 30 days.
Justice Kavanaugh: Day after it goes in affect?
Sauer: Hospital don't do anything different. We don't know how they'll do it.
Justice Kavanaugh: Why did this come up so much in last 4-5 administrations? Is it because less ability to get legislation?
Sauer: No, consider New Deal. What is new is how many.

11/ Justice Barrett: Justice Kagan asked whether it would follow Second Circuit precedent.
Sauer: Generally respect. Long standing policy of DOJ to respect circuit precedent, but may not to have it overturned.
Justice Barrett: Is trying to find out whether DOJ or Trump Administration is saying it is merely "generally".
Sauer: We do think percolation is appropriate & we didn't ask for it here. We want court to address the remedial question.
Justice Barrett: What is POINT of this fight if nationwide impact can happen? Why does government care?
Sauer: Rigor of class action is important.
Justice Barrett: If class is certified, is there any benefit to this fight? (Goes to Alito's question..is there a difference?)
Sauer: Yes. Class members are bound by a loss, as we are. Me: This is key point.

12/ Justice Jackson: Why are you saying these injunctions are giving relief to non-plaintiffs, as opposed to focusing on defendants. Relief is telling defendant to stop doing this thing.
Me: Jackson's line of argument is stupid because of Sauer's point that non-parties aren't bound in nationwide injunction.
Jackson: Frames as saying "stop doing this." And only Plaintiffs can enforce.
Sauer: Authority of federal courts is to remediate injury to complaining injury.
Jackson: Says remedy is "stop doing this behavior."
Sauer: This totally different than APA and remedy.
Jackson: Claims this turns justice system upside down.
Me: Biden Administration did this with student loans.

13/ Justice Jackson: Trying to frame as President thwarting rule of law.
Sauer: Says issue is opposite, talks about transgender case and how Government won so plaintiff ran to another court.
Justice Jackson: Wouldn't nationwide injunctions help get it to Supreme Court quickly.
Sauer: Percolation of novel legal principles is a good thing.

14/ State Solicitor General arguing ("SSG"): Argues there are serious administrative issues. Claims SCOTUS already decided case 150 years ago. ME: No, it didn't. Try to argue nationwide relief can be limited.
Justice Thomas: What is origin of nationwide injunction.
SSG: Tracing history. Want 3 narrow circumstances.
1) where alternative ways to remedy harm to plaintiff not practical;
2) Congressional authority (such as APA & Hobbes);
3) alternative forms of getting relief because of Rule 23 not practical, courts might need to step in.
Justice Gorsuch: Well reasonable expedition.
SSG: No issue with addressing merits in supplemental briefing & decide merits.
Justice: First one is consistent with equity. Second possibly article III. What is rule for bucket 3? What is constraint there?
SSG: There is no brightline rule: It requires district courts to consider alternative and say why it is not workable.
Justice: We told them too and I think they have, but we got it here.
SSG: AARP is good illustration of bucket 3. Rush. Not possible to go through class certification. Necessary to step in.
Justice Kavanaugh: Rule 23 class is it going to be hard? And if not, then why not go there.?
Justice Barrett: You don't need class device since you have bucket 1?
SSG: States will be harmed without nationwide injunction.
Justice: How do we get to merits fast?
SSG: Get supplemental briefing & order merits. We could ask for review to get cert. before judgment on basis that we don't have complete relief.
Justice: Are you saying we can't decide without taking look at merits?
SSG: Yes, if you don't let us win nationwide injunction, you have to look at merits.
Justice Alito: What is your response to practical problems? And namely that ~650 district court judges , COA won't stay, and then comes to us in emergency, and we say we can't do anything unless absolutely clear. What do you say to that practically?
SSG: Answer isn't brightline, and here we need nationwide because no remedy isn't practical.

15/ Justice Sotomayor: Did they present alternatives?
SSG: They objected to nationwide but didn't give alternatives. Explains burden states suffer without nationwide injunction.
Justice Sotomayor: Points out other cases before 1960s, Pierce, universal injunction. 1925. Pointing out other cases where they've existed, in essence since the founding. You started by saying universal injunction should not be norm.
SSG: Government tries to make it as indivisible and that is not the case. Always looked to harms by 3rd parties.
Me: This state line crossing argument is ridiculous because SCOTUS will decide and that will make universal as a matter of stare decisis.

16/ Justice Kagan:

17/ Justice Kagan: Asks about incentives. And can those be considered?
SSG: Yes because citizenship matters so much and that matters in this case why you need a nationwide injunction. But you can't get there without getting to the merits and merits mean you need nationwide.
Justice Barrett: What is your best example of a case?
SSG: Equitable Rule 48...third parties aren't bound by decision even if they benefit. Note: I'm not up on Equitable Rule 48.
Justice Barrett: How would I craft a holding that gave more remedy, without nationwide injunction.
SSG: States need this relief. But didn't give ideas to the district court.

18/ Justice Jackson: Concerned about the posture. Whether & under what circumstances Trump continues to do the thing that's illegal? Shouldn't government show it will suffer harm?
SSG: In this case, government doesn't NEED to act now. Says court must peak at merits.

19/ Attorney for CASA: Argues EO birthright is blatantly unlawful.
Justice Thomas: If history doesn't support you, should policy/pragmatic a basis?
CASA: Rule 71 allows non-parties to enforce. Committee rejected rule for relief to non-parties. Rule 23 doesn't envision preliminary relief.
Justice Kavanaugh: Why can't you get relief for a putative class?
CASA: You can. Relying on equitable authority, not Rule 23.
Justice Kavanaugh: If available doesn't that solve the problem with universal injunctions?
CASA:Your just taking national injunctions and forcing into Rule 23.
Justice Kavanaugh: Rule 23 provides mechanism. And TRO/PI for putative class then that solves rules.
Justice: If Bill of Peace understood as predecessors to Rule 23, how is that different than nationwide?
CASA: Cases show non-party relief provided outside Rule 23. For court to adopt categorical rule if an "over correction." Court instead provide limiting principles.
Justice Kavanaugh: Is there a practical problem of using this other approach of putative class?
CASA: It would eliminate organizational ability to seek relief because they can't seek class certification.
Justice Kavanaugh: The problem can't be solved. (i.e. over use of nationwide injunctions in another format).
CASA: Universal injunctions with facial challenges with serious constitutional harm, with serious harms, should be when used, as opposed to discretionary. Court could be provide guidance on when appropriate, and need to do public interest.
Justice Sotomayor?: Are you pushing against class certification, is it you can't get?
CASA: Common interest don't make sense when doing a facial challenge. And it doesn't solve the court's policy problems. Necessary for complete relief because it wouldn't be administratively workable, but would require CASA members to disclose to government facts facts putting them at risk for deportation (even if here legally?--that makes no sense). Gov' said it should be limited 16 members so not workable.
Justice Alito: Should we make up our mind without briefing, argument, etc.
CASA: We would be happy to provide supplemental briefing and would like cert before judgment. Merits are embedded in the factors.
Justice Sotomayor: You can't balance equities without merits, right?
CASA: Correct and because without merits you can't say any harm to government.
Justice Sotomayor: Can organizational seek class action?
CASA: Our individual members could but not sure organization then.
Justice Kagan: This case is different than many cases where we have problems with nationwide injunction, where it was forum shopping & tough cases. What's problematic here because you keep winning so how will we ever get a case here.
CASA: Rule 23 does nothing to solve, but if you articulate: facial/fundamental constitutional right, etc would cut back on things. Vertical stare decisis is important is is correctable by court of appeals.

20/ Justice Kavanaugh: Seems to say it is more significant actions over last 3 decades.
CASA: Number of executive actions is more than prevalent.
Justice Barrett: You are in bucket 1. Are you in bucket 1 for named plaintiffs:
CASA: Injury exposing names.
Justice Jackson: If we view judgment as ordering defendant NOT to do something, are non-parties actually getting relief or incidental beneficiaries?
Me: Again, stupid argument because Defendant is arguing relief must be specified to only Plaintiffs. This begs question.
CASA: Says yup, that's basically.
Justice Jackson: We don't need Rule 23, just telling defendant they must stop doing thing illegal. But you suggested under Rule 71 non-parties could enforce.
CASA: It would be difficult to enforce under Rule 71. CASA rep won't even go along with Justice Jackson's coo-coo framing.

21/21 Justice Sauer: Starts response on merits & notes that is what argument is being presented below and that it is a strong argument. Court can address merits expeditiously if it wants to, but Court should address question of nationwide injunction now because no limiting principles have had any impact.
No injunctive relief should run to states. New thread after I clean med equipment & clean kitchen.