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In Trump v. Casa, the United States Supreme Court finally put an end to the universal injunctions that trial judges had invented to block presidents from pushing their agendas nationwide.
These orders, which courts applied with special vigor against President Donald Trump, “exceed the equitable authority that Congress has granted to federal courts,” the 6-3 majority declared. Even though Casa resolved a question of technical legal procedure, it struck a balance between the Executive and Judicial branches of government that bore greater constitutional importance.
SCOTUS RULES ON TRUMP’S BIRTHRIGHT CITIZENSHIP ORDER, TESTING LOWER COURT POWERS
Casa represented an undeniable victory for the Trump administration. In ruling against many of Trump’s executive orders, district courts had used nationwide injunctions to halt such major initiatives as Trump’s suspension of foreign aid, removal of illegal aliens from Venezuela, layoffs of federal bureaucrats, a bar on transgender soldiers, ending racially discriminatory programs in higher education, and cuts and freezes in federal spending. Trump is now free to enforce those policies in states where the courts have not enjoined them. Ultimately, the Supreme Court will have to resolve the conflict between the federal courts that have enjoined Trump’s policies and those in other states that have not.
But the legal, rather than the political, issue asks more narrowly how far a federal trial judge – of which there are almost 700 – may go in stopping government action he or she concludes violates the law. All agree that the trial court can grant relief to the parties in the courtroom. In Casa itself, federal judges in several cities ruled unconstitutional Trump’s executive order denying citizenship to children born on American territory whose parents were in the U.S. illegally. But rather than simply order the recognition of the citizenship of the plaintiffs in the lawsuits, the courts forbade the Trump administration from pursuing the new policy throughout the entire nation.
These lower court judges claimed a sweeping power that had never existed before in American history. Nationwide injunctions were virtually unknown until the 21st Century. As Justice Amy Coney Barrett’s majority opinion made clear, the Framers would not have understood the Constitution’s grant of power to the federal courts to resolve “cases or controversies” under federal law to include nationwide injunctions.
As late as President Barack Obama’s administration, it appears the lower courts had only issued about 19 such injunctions. In 2019, Attorney General William Barr stated that the federal courts had issued only 27 in the twentieth century. But by April 2024, 127 nationwide injunctions had been issued since 1963, with 96 packed into 2001 to 2023. There were six nationwide injunctions under the second Bush administration, 12 under Obama, a staggering 64 under the first Trump administration, and 14 from the first three years of Biden. As of the end of March, just 10 weeks into Trump’s second term, federal judges had issued 17 such injunctions.
The very fact that nationwide injunctions were little known to the lower federal courts until the present century undercuts the notion that they were understood by the Framers to fall with the “judicial power” of Article III of the Constitution. Nationwide injunctions violated not just the text, but also the structure of the Constitution. As the majority in Casa concluded, district judges were claiming a supremacy that ignored the equal role of the other branches of government in interpreting the Constitution. They threatened to transform the power of the federal courts to decide “cases or controversies” into a supervisory power to manage the workings of the government nationwide.
In its deepest constitutional failure, the use of nationwide injunctions prevented the president from advancing his own reading of the Constitution. The Constitution does not establish any branch of the federal government as supreme in its interpretation. Instead, each of the branches must give meaning to our nation’s highest law when they carry out their unique constitutional responsibilities. Judicial review, for example, emerges from the court’s sole authority to decide “cases or controversies” arising under federal law. Congress interprets the Constitution when it decides whether to enact bills into law. Presidents give meaning to the Constitution when they veto legislation or “take care that the laws are faithfully executed.”
In the very first year of the Constitution, for example, President George Washington decided that the national bank was constitutional when he signed the legislation creating it. He interpreted the Constitution to vest the power over foreign policy in the executive branch when he decided to issue the Neutrality Proclamation. Later, President Andrew Jackson vetoed a re-authorization of the very same bank, even though Congress believed the law constitutional by passing it, two past presidents had signed earlier versions of the law, and the Supreme Court had upheld the law in McCullough v. Maryland. Jackson correctly argued that the Supreme Court could not force him to sign the law. He declared that “The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution.”
In fulfilling its constitutional functions, Jackson believed, each branch has an equal and independent duty to decide upon the constitutionality of legislation.
“The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges,” Jackson declared. And, he emphasized, “on that point the President is independent of both.”
Abraham Lincoln went furthest in claiming that presidents had the right to pursue their own interpretation of the Constitution at odds with the view of the Judiciary. In his famous debates with Stephen Douglas, Lincoln argued that the Dred Scott decision applied only to the parties in the case. The president had to obey the decision of the Court – which party won or lost the case. But the Court’s logic and reasoning could not bind the president or Congress, which both had the right to interpret the Constitution too, or, ultimately, the people.
“I do not deny that such decisions may be binding in any case, upon the parties to a suit, as to the object of that suit,” Lincoln said in his first inaugural address. Decisions of the Court should receive “very high respect and consideration in all parallel cases by all other departments of government,” he continued.
But “if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court,” Lincoln argued, “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”
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Casa honors Lincoln’s understanding of the balance of power between the president and the Court. Under Lincoln’s view, the president has the right to advance his reading of the Constitution even if a court has enjoined it elsewhere. While Lincoln conceded that he would obey judicial decisions, he argued that he could continue to enforce his policies against individuals outside the parties in Dred Scott. And Lincoln believed he had no constitutional obligation to apply Dred Scott to new cases. Judges would have to issue orders in each future case ordering him to return free blacks to slavery under Dred Scott. Casa rejects the notion that a single district court could force a president to obey its reading of the Constitution throughout the nation, even in cases not yet brought.
A president may accept the Supreme Court’s interpretation of the Constitution, but in order to reach the Court, the president will test his reading of the Constitution in other courts. Armed with a nationwide injunction, a single judge who first decides an important constitutional issue effectively short-circuits the ability of other courts to examine the issue. But a president should have the right to go to the federal courts in other states; should the courts disagree, the Supreme Court can resolve the conflict. Nationwide injunctions prevented presidents from advancing their reading of the Constitution in other courts and ultimately bringing their policies to the Supreme Court quickly.
Trump now has the opportunity to test the constitutionality of birthright citizenship (where I happen to think he is wrong) before the Justices, as is his right.
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