The Supreme Courts ruling last month that all but blocked lower courts ability to temporarily halt obviously illegal or unconstitutional presidential policies has set our nation back centuries. Literally.
You dont have to be a critic of the Trump administration to see the huge problems caused by Trump v. CASA Inc., which the court issued on the last day of its term. Just imagine any plainly illegal presidential order to take away citizens firearms, for instance.
Courts should be empowered to put a quick, comprehensive stop to such an action through an injunction.
But now they cant. Based on the Supreme Courts reading of a 1789 law, lower courts can now only take such action on specific cases before them, meaning that even clear-cut violations of the law could continue against those without the wherewithal to go to court.
Congress can and must correct this mistake. Lawmakers should pass legislation that protects judges ability to provide robust equitable remedies when peoples rights are threatened by legally or constitutionally dubious administration actions.
Now, its true that there have been problems with universal injunctions, and judges have sometimes misused them. But the courts ruling took a sledgehammer to a system that should have been fixed by Congress with a scalpel.
And in the case of Trump, the ruling opens the door for him to strip birthright citizenship from American-born babies, continue whisking migrants to countries foreign to them with little notice and without due process, and engage in other actions that threaten peoples rights and freedoms.
The courts 6-3 ideologically split opinion, authored by Justice Amy Coney Barrett, was based on the majoritys interpretation of the Judiciary Act of 1789. The justices considered if the statute authorizes broad preliminary injunctions like that issued by Boston-based U.S. District Court Justice Brian Murphy, which paused Trumps executive order to deny birthright citizenship to children born to some migrants.
The answer is no, Barrett wrote for the majority.
Instead, the court held, challengers of the policy who have standing to bring suit can only obtain such preliminary relief for themselves.
(P)rohibiting enforcement of the Executive Order against the child of an individual pregnant plaintiff will give that plaintiff complete relief: Her child will not be denied citizenship, Barrett wrote. And extending the injunction to cover everyone similarly situated would not render her relief any more complete.
This is untenable, and will only lead to a cruel game of judicial whack-a-mole that fails to provide adequate protection to those most imperiled by these policies. The onus should not fall on those who are targeted by these policies to fend for themselves. It should fall on the administration to show that it is acting in a lawful way. The court did just the opposite, holding that it is the administration that will likely suffer irreparable harm if courts dare to exercise their authority as a check on the executive.
The overuse of universal injunctions has been an issue of increasing bipartisan concern, particularly since the Obama administration. In the last two decades, both the number of executive orders issued and the number of temporary injections blocking them have steadily ballooned.
But the number of executive orders Trump has issued in his second term is without historical precedent, even exceeding Franklin Delano Roosevelt, who issued a flurry of edicts in an effort to implement his New Deal agenda.
And many of Trumps orders are based on strained legal or constitutional arguments, such as the administrations claim that the 14th Amendments birthright citizenship protection only extended to children of enslaved people, that the Alien Enemies Act allows migrants to be deported without due process, or that the Immigration and Nationality Act allows the government to send migrants to countries where theyve never been and to which they have no connection.
Judges must have the ability to decide when relief extending beyond named plaintiffs is warranted. Should there be limits on that power? Yes, and Congress can include them in its bill. It can also underscore that states can still seek statewide relief from policies they can demonstrate harm all of their residents, and ease the process for class actions to be formed at the earliest stages of litigation to give relief to groups of people who demonstrate a need for protection. Judges handling the flurry of Trump-related litigation need more tools, not fewer. Its lawmakers duty to give those tools to them.
The Supreme Court must also swiftly take up and decide the constitutional and legal questions presented by Trumps orders. The justices could have rejected the Trump administrations erroneously limited reading of the 14th Amendments birthright citizenship protections, but opted instead to leave that question for another day. But given the risks of the order, there is no time like the present.
And in the meantime, federal judges must do all they can to help challengers who will be harmed by Trumps policies. The Supreme Court did not tie judges hands completely when it comes to equitable relief. Quick certification of class actions and swiftly granting relief to states that demonstrate the peril to their residents are among the arrows still in judges quivers. They must use them.
We are not as bound or doomed by history as the Supreme Courts justices believe. The public needs to demand that members of the legislative and judiciary branches stand up and reclaim their powers to check a president who believes he is above the law and the Constitution.
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