Further Thoughts on Non-Party Injunctions and the Constitution

As I listened to the oral argument and read through the Administration’s filings in Trump v. Casa (the “nationwide” or “non-party” or “universal” injunction case), I was puzzled by the Solicitor General’s repeated reference to the Supreme Court’s power to issue “binding nationwide precedent,” rather than its power to issue “binding nationwide injunctions” – the latter being what I thought the case was about.

A few examples:

JUSTICE SOTOMAYOR: So can I ask you a question? Your theory here is that Article III and principles of equity both prohibit federal courts from issuing universal injunctions. Do I have your argument correct?

GENERAL SAUER: We argue both of those and there are independent reasons.

JUSTICE SOTOMAYOR: You argue both of those?

GENERAL SAUER: Yeah.

JUSTICE SOTOMAYOR: If that’s true, that means even the Supreme Court doesn’t have that power.

GENERAL SAUER: The Supreme Court would have the authority to issue binding precedent nationwide, but as this Court –

JUSTICE SOTOMAYOR: But we couldn’t enforce it universally – is that your argument?

GENERAL SAUER: If there was a decision that violated the precedent of the Court, then the affected plaintiffs could get a separate judgment.

And again:

JUSTICE KAGAN:  I think that the question that this case presents is that if one thinks that it’s quite clear that the EO is illegal, how does one get to that result, and in what time frame, on your set of rules without the possibility of a nationwide injunction?

GENERAL SAUER: On this case and on many similar cases, the appropriate way to do it is for there to be multiple lower courts considering it, the appropriate percolation that goes through the lower courts, and then, ultimately, this Court decides the merits in a nationwide binding precedent.

And again:

JUSTICE KAGAN: Suppose that there’s a single person who brings a suit and it gets all the way up to us after three or four or five years, and we say, you know, we really do agree with those four precedents that Justice Sotomayor started with and your Executive Order is illegal. Is that only going to bind the one guy who brought the suit?

GENERAL SAUER: No. That would be a nationwide precedent that the government would respect.

JUSTICE KAGAN: So, finally, once it gets to us after four years, you’re going to respect that?

GENERAL SAUER: Yes. And in addition, we may well respect circuit-wide precedent.

But now I see what’s going on [h/t to reader/commenter J.M. Cox, one of whose comments on my earlier posting illuminated this point].

The Administration’s position is that Article III’s case and controversy requirement disables the district court from issuing an order requiring the Executive to act lawfully towards non-parties – individuals who are not themselves before the court. Thus, a finding that the Birthright Executive Order is unlawful as to Able does not – cannot, in the Administration’s view – cover Baker (if Baker is not party to Able’s suit), because there is no “case or controversy” between the government and Baker for the court to decide.

But if the district court can’t do it, the Courts of Appeals can’t do it, and neither can the Supreme Court, because they are all subject to the same “case or controversy” requirement of Article III. No federal court, including the Supreme Court, can order an Executive officer to act (or refrain from acting) in a particular manner with respect to anyone not a party to an action before the court.

Hmm.  I certainly can understand why the S.G. might have felt a little uncomfortable, having to stand up before the Supreme Court to make that argument!

So the Administration’s position is that a Supreme Court decision concerning the constitutionality of the Birthright E.O., if and when it is handed down, will be binding nationwide as precedent – that is, the decision is binding on courts who, under the rules of stare decisis, must decide the question as directed by the Supreme Court should it arise in future cases.

But it’s not an “order” that the President is obligated to obey.  It’s not a “nationwide injunction,” it’s a “nationwide precedent,” and only courts are bound by “precedent.”

So in this view of things, even if the Supreme Court ultimately decides that the government’s treatment of Able was unlawful, the government can treat similarly-situated Baker the same way it treated Able, without violating any order or injunction. Baker may bring suit, and he/she will win, because the court in Baker’s case will be bound by the Government v. Able precedent to decide the case in Baker’s favor. But the Baker case, too, is not and cannot constitute an “order” requiring the Executive branch to treat similarly-situated Charlie, or Drake, or Evans, et al., in accordance with the courts‘ view of the illegality of the actions taken.

That’s a pretty fundamental attack on one of the basic premises underlying the Constitutional balance of powers – the idea that it is “emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137 (1803).

* * * * * * * * *

In Federalist #51, Publius asks:

To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution?

The answer – “the only answer” – is “by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. . . . [E]ach department should have a will of its own . . .”

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.

It’s my favorite sentence in the Federalist Papers.

I’m reasonably confident that the Justices understand full well that this case is about judicial power – i.e., their power, and the power ultimately of the entire edifice of the federal judiciary at the apex of which they sit. And I also think they understand that the Administration’s position here tilts the scales away from the Article III team in favor of the Article IIs pretty decisively.

I’m hopeful that if the fate of the Republic [see my earlier posting] isn’t enough to shake five votes from the tree to push back against Executive overreach here, that ambition and self-interest will help carry the day.

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