New SCOTUS ruling on injunctions

[RocksInMyHead]

The growth rate of those injunctions are concerning as well. To have very few for the majority of history, and then boom, now from 2000 to present, it's jumping up by 2.5x from president to president -- if we stay on that pattern, we'll end up with a situation where the courts get so bogged down, they'll be litigating things from presidents who haven't been in office for 10 years.

I think that's fair criticism. I think it's also fair to point out that it's largely in response to the increasing trend of governing by executive order.

 

[durangodawood]

-- if we stay on that pattern, we'll end up with a situation where the courts get so bogged down, they'll be litigating things from presidents who haven't been in office for 10 years.

Actually that aspect of things has just been made much worse, as people seeking relief now need to file suit in every single jurisdiction - even if elsewhere a ruling (or rulings) has favored their position.

ETA: nothing about the ruling stops the lawsuits youre concerned about against perceived unconstitutional executive action. It multiplies them.

 

[rjs330]

No

Oh, don't pretend for one second that "judge shopping" was exclusively done by Democrats. The number of cases challenging Biden-era actions in the 5th Circuit makes that quite clear.

Not exclusively, but predominantly becauae the left have been the ones who have done rhe vast majority of the suing in federal court regarding presidential actions.

I see this as a HUGE win. Even for rhe Democrats in the future.

 

[durangodawood]

....I'd rather see it be something to the effect of
"If you're seeking an injunction that's nationwide, then the case will be heard by a randomly selected district judge -- you don't get to cherry pick, if that judge feels there's merit to the injunction request, that judge's opinion will be reviewed by a second randomly selected district judge, and if they agree, then the injunction will be in effect"
(then the arduous appeal process could begin)....

This^ idea has merit imo. But scotus just slammed the door on it.

 

[Fantine]

District courts can't make "nationwide" decisions. That seems reasonable. Nevertheless, when the actual issue of birthright citizenship comes up next year, I am sure the courts will rely on the universal collective wisdom of those courts, all of whom indicated that the Constitution is clear about birthright citizenship, and that can only be changed by constitutional amendment.

 

[RocksInMyHead]

Not exclusively, but predominantly becauae the left have been the ones who have done rhe vast majority of the suing in federal court regarding presidential actions.

Again, have you considered that this is due to the nature of the presidential actions taken by Donald Trump?

I see this as a HUGE win. Even for rhe Democrats in the future.

It's a huge win for anyone in favor of expanding executive powers.

 

[A New Dawn]

"So what" indeed. I'm uncertain of what point you're trying to make here.

That was in response to your statement that Trump issued a bunch of EOs on the first day as if that, alone, was a reason to file a lawsuit against him.

 

[A New Dawn]

I think that's fair criticism. I think it's also fair to point out that it's largely in response to the increasing trend of governing by executive order.

I didn’t see the left complaining when Obama famously said “I have a phone and a pen”.

 

[RocksInMyHead]

That was in response to your statement that Trump issued a bunch of EOs on the first day as if that, alone, was a reason to file a lawsuit against him.

You made the claim that Trump had a bunch of lawsuits filed against him on day 1, "before he did anything". He did, in fact, do things on day 1 - like sign a whole bunch of executive orders. That was my point.

I didn’t see the left complaining when Obama famously said “I have a phone and a pen”.

Again, your point? I don't really have too much of an issue with the idea that executive orders are relatively easy to put the brakes on. They're very easy to enact, so they should be equally easy to stop. Checks and balances, y'know.

 

[RocksInMyHead]

It didn't take long for the forum shopping to go off the rails once people saw it was a way to effectively put the breaks on the opposing team's agenda (or stall it until they're back and office and can reverse it) by tying it up in the judicial branch for months on end.

This is only really an issue if we assume that executive orders are the primary method of enacting an administration's agenda. While that has been increasingly becoming the case over the course of the past several administrations, I don't think we should push it further towards being the norm - which this ruling does. Making it harder to halt EOs makes them more attractive as a vehicle for pseudo-legislation, and I think that's a bad thing.

 

[Bradskii]

Actually that aspect of things has just been made much worse, as people seeking relief now need to file suit in every single jurisdiction - even if elsewhere a ruling (or rulings) has favored their position.

ETA: nothing about the ruling stops the lawsuits youre concerned about against perceived unconstitutional executive action. It multiplies them.

I've just read that in regard to the birthright application, some plaintiffs will be issuing a class action: US supreme court limits federal judges’ power to block Trump orders

'Immigrant advocacy groups including Casa and the Asylum Seeker Advocacy Project (Asap) – who filed one of several original lawsuits challenging the president’s executive order – are asking a federal judge in Maryland for an emergency block on Trump’s birthright citizenship executive order. They have also refiled their broader lawsuit challenging the policy as a class-action case, seeking protections for every pregnant person or child born to families without permanent legal status, no matter where they live.'

 

[JSRG]

Good day,

As I understand it the Clause " subject to the jurisdiction thereof" supposedly the Senator that wrote this indicated that this would not apply to immigrants and then goes on to explain this as it relates to the properly to the slaves only.

That's false.

The senator in question (Howard) never said that it relates only to the slaves, for starters. The claim that he said it didn't apply to immigrants is at least based on something he said, but relies on taking something out of context. The claim emerges from this statement from the congressional record:

"This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."
(this can be viewed in context here)

And so the argument goes "ha! See? He said foreigners and aliens are excluded!" But then his phrasing is very odd. If this is a list of three categories, why mention "who belong to the families of ambassadors or foreign ministers", given they would already be covered by the larger category of foreigners and aliens? In fact, why say both foreigners and aliens? Why does this list not have the word "or" between "aliens" and "who" as would be required grammatically? A much more plausible interpretation is that the person performing the transcription simply punctuated it wrongly, and the quote should read:

"This will not, of course, include persons born in the United States who are foreigners--aliens--who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

Swap the commas out with hyphens and it turns into him clarifying that by "foreigners" he means "aliens" (the standard term for immigrants at the time, though used far less often now) and thus he is saying that "foreigners who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States" are excluded.

In the abstract it is ambiguous which way he was saying it, but everything is made clear by the discussion that comes right after. Namely, two senators get into an argument about whether it's smart to allow children of non-citizen immigrants to become citizens. The people who were in the room clearly interpreted it in the way I suggested. Furthermore, no one--including Howard--saw any need to say "you guys are wrong, this isn't applying to immigrants".

For the record, on the case actually in question (which was actually not really about birthright citizenship itself) I think the Court was probably right to limit universal injunctions. A shame this had to be done in a case where the merits of the case itself are so lopsided (i.e. the argument against birthright citizenship is extremely weak).

The historical context and intent will be considered when the question is taken up by the Court I heard they would be ruling on this question in October.

In Him,

Bill

Looking at the list of cases taken up for next term, I see nothing (right now) about birthright citizenship.

 

[JSRG]

A temporary injunction does not "set the law". It pauses action until the case can be decided.

From a practical perspective, this ruling violates the spirit of the Constitution, in my opinion. If the court believes that an action violates the constitution, then they have the authority to pause that action until a higher court has the chance to review it. However, pausing the action for just the plaintiff or just in a limited area is pretty meaningless if the action affects the entire country.

Except that's exactly how it was done for the majority of US history. Universal injunctions didn't really start until the second half of the 20th century, and even then were pretty rare until the 21st century.

For example, under this ruling, if a future administration were to draw up an executive order restricting ownership of "assault weapons," then you would need to file a lawsuit in every single district in order to challenge it - and you may well end up with a very piecemeal network of places where it may or may not be legal (temporarily) to own an "assault weapon". Then each of those cases would have to go to appeal, and then to the Supreme Court for a final decision. That does not seem reasonable to me.

This is a point often used to justify universal injunctions. However, could not all of this be done via class action lawsuits? It seems to me this would solve this problem while avoiding the issues that universal injunctions had (namely, that all you have to do is find one partisan judge to issue a universal injunction--easier with forum shopping!--and it doesn't matter if every other district judge in the country ruled otherwise).

 

[JSRG]

If it was "obviously outside of their authority," that begs the question of why something wasn't done about this earlier - after all, the Court has had the same makeup since 2022, and every justice in the majority opinion has been on the Court since at least 2020. There were roughly 30 nationwide injunctions during Biden's administration, and yet the Court said nothing about any of them. Curious.

Actually, some justices did complain about it before (at least, Gorsuch and Thomas did). However, I don't think any plaintiff prior to now actually tried to make a specific case of trying to challenge the practice.

 

[RocksInMyHead]

However, could not all of this be done via class action lawsuits? It seems to me this would solve this problem while avoiding the issues that universal injunctions had (namely, that all you have to do is find one partisan judge to issue a universal injunction--easier with forum shopping!--and it doesn't matter if every other district judge in the country ruled otherwise).

It's not clear to me how pushing everything over to class actions changes any of this. It slows the process down and imposes stricter requirements on the plaintiffs, but I don't see how that would prevent people from judge-shopping.

Granted, I'm not a lawyer, so I could be missing something here.

 

[rjs330]

Again, have you considered that this is due to the nature of the presidential actions taken by Donald Trump?

Of course it is. The left is diametrically opposed to pretty much anything and everything he does. The left has gotten more and more radical is the years go by. And any attempt to reign in policies that have been enacted by the leftist Democratic Party is met with law suit after lawsuit and nation wide injunction.
Well that's over now. Which is great for this country. Presidents will have greater leeway to manage their branch of government and set policy. It still has no effect over Congressional law. If one president sets policy, the next can alter it. Exactly how it should be.

This move puts the courts back in their place where they have been for the vast majority of our history.

It's a huge win for anyone in favor of expanding executive powers.

Its not an expansion. You guys were all in favor of executive actions with Obama and Biden.

 

[rjs330]

Making it harder to halt EOs makes them more attractive as a vehicle for pseudo-legislation, and I think that's a bad thing.

Exactly, and this decision makes it easier to do that. Currently some courts have made it all but impossible for an administration to change a previous administration's policy.

 

[RocksInMyHead]

Its not an expansion.

Functionally, it is. If it is harder to check executive power, then executive power is expanded.

You guys were all in favor of executive actions with Obama and Biden.

I was (generally) in favor of the executive actions taken by Obama and Biden in an abstract sense, as they mostly embodied policies that I agreed with - just as I'm sure you're in favor of the executive actions Trump has taken. However, the fact that they were executive actions rather than laws was not my preference. I would not have minded further checks on their executive power - perhaps it would have encouraged our government to actually...uh...govern. We're not a monarchy - policy should not be unilaterally dictated by the executive.

Exactly, and this decision makes it easier to do that. Currently some courts have made it all but impossible for an administration to change a previous administration's policy.

That's not what I meant and you know it. I'm far more concerned about the ability of the people and the other branches of government to check the Executive's power in the moment than the ability of the Executive to reshuffle policy every 4-8 years.

 

[ThatRobGuy]

I think that's fair criticism. I think it's also fair to point out that it's largely in response to the increasing trend of governing by executive order.

^^^^
During that whole period, there were only 27 injunctions by district courts...

^^^^
This is the period where the injunctions started spiking.


I don't know that the trend of governing by EO is increasing the way people seem to think it is.

In reality, George W. Bush, Obama, Trump, and Biden have used that "power of the pen" less excessively than a lot of their predecessors.

Coolidge and FDR issued a combined 5k executive orders between them, not a single district court injunction filed against any of them that I'm able to find.

Yet, 19 of Obama's 276, and 55 of Trump's 220 had injunctions filed against them?

Given the numbers of EO's by president...

It seems like it's less of a "response to increasing trend", and more of a "copycat response to a bad incentive structure"

In reading back through the archives, it appears that the one that "got the ball rolling" on practice of "let's file an injunction request for this EO we don't like", was EO 13202 from the George W Bush administration, which was
Executive Order 13202, signed by President George W. Bush, prohibited federal funding for a project if a government or its partners or agents imposed a mandate for construction contractors to sign a Project Labor Agreement with one or more labor unions

The process took about 18 months, and because it was filed in a district that was "friendly" to the interests of the entities filing the injunction (as was the circuit court above it), by the time it was appealed and certain parts of it were allowed to stand, it was already Obama's term to be president, and he rescinded that order in his 3rd week of holding office.

Obviously political strategists don't need to be rocket scientists to look at that say "Hey, that worked out pretty well"

 

[RocksInMyHead]

I don't know that the trend of governing by EO is increasing the way people seem to think it is.

In reality, George W. Bush, Obama, Trump, and Biden have used that "power of the pen" less excessively than a lot of their predecessors.

Coolidge and FDR issued a combined 5k executive orders between them, not a single district court injunction filed against any of them that I'm able to find.

Yet, 19 of Obama's 276, and 55 of Trump's 220 had injunctions filed against them?

FDR was acting under war powers, which is one of the scenarios that executive orders were intended to cover. Same with Wilson. Looking at Coolidge's list of EOs, many of them seem to be appointments and other functions now handled by various Executive Branch agencies that didn't exist at the time. The same goes for other presidents of roughly the same era with high numbers of EOs (Teddy Roosevelt, Taft, Harding, Hoover, etc).

You have to consider not just the number but also the nature of executive orders issued. Obama really expanded the use of EOs to dictate policy rather than specific actions, and Trump and Biden continued that.