"A Question of Remedy, not Redressability"

Proclamation 10888, issued by the President on his first day in office, purported to:

“prevent anyone who crosses the southern border of the United States at any place other than a designated port of entry, as well as anyone who enters anywhere else (including at a designated port of entry) without a visa or without extensive medical information, criminal history records, and other background records, from applying for asylum.”

Plaintiffs challenged the Proclamation on statutory grounds, alleging that it violates a number of statutes governing the granting or withholding of asylum, and, “most fundamentally,” that the President is not authorized to unilaterally reform the Congressionally-structured asylum system.[1]

Yesterday, the DC district court, in RAICES v. Noem,  granted summary judgment to the plaintiffs on all claims, vacated the Proclamation, and entered an injunction “precluding the Agency Defendants[2] from implementing the Proclamation.”[3]

It is, I believe, the first decision in a case in the new, post-Casa world, a world in which “universal injunctions” are, basically, no longer available to federal district courts, and it is [one hopes] a harbinger of how these challenges to unlawful Administration action will be handled going forward.

To many people – and I include myself here – the Casa decision seemed, at first glance, to sound the death knell for any hopes that the legal system could provide any serious impediment to Trump’s inexorable march to one-man rule.  Without the ability to enjoin federal agencies from acting unlawfully as to anyone other than the plaintiff(s) to the action before the court, how could courts, as a practical matter, keep the Administration inside legal boundaries?

Justice Kavanaugh’s concurring opinion took this question head on. The sky, he asserted, is not falling:

“[I]n the wake of the Court’s decision, plaintiffs who challenge the legality of a new federal statute or executive action and request preliminary injunctive relief may sometimes seek to proceed by class action under Federal Rule of Civil Procedure 23(b)(2) and ask a court to award preliminary classwide relief that may, for example, be statewide, regionwide, or even nationwide.”

“And in cases under the Administrative Procedure Act, plaintiffs may ask a court to preliminarily “set aside” a new agency rule. 5 U. S. C. §706(2); see, e.g., West Virginia v. EPA, 577 U. S. 1126 (2016); see also Corner Post, Inc. v. Board of Governors, 603 U. S. 799, 826–843 (2024) (Kavanaugh, J., concurring).”

Moreover, the Supreme Court will always be available to keep the Executive Branch in line – it is not limited in its declaration of nationwide-binding legal judgments.

“[I]n my view, there often (perhaps not always, but often) should be a nationally uniform answer on whether a major [emph. in original] new federal statute, rule, or executive order can be enforced throughout the United States during the several-year interim period until its legality is finally decided on the merits.”

“Second, if one agrees that the years-long interim status of a highly significant new federal statute or executive action should often be uniform throughout the United States, who decides what the interim status is? The answer typically will be this Court, as has been the case both traditionally and recently. . . . In justiciable cases, this Court, not the district courts or courts of appeals, will often still be the ultimate decisionmaker as to the interim legal status of major new federal statutes and executive actions—that is, the interim legal status for the several-year period before a final decision on the merits.”

Though Judge Moss’s opinion in the RAICES case only cites the Casa case once – interestingly enough, to Justice Kavanaugh’s concurrence – he follows the framework Kavanaugh outlined pretty closely, first “setting aside” the Proclamation based on the APA, and then by certifying a class under Rule 23 “consisting of all individuals who are or will be subject to the Proclamation and/or its implementation and who are now or will be present in the United States” to solve the “non-party injunction” problem.

The opinion, not incidentally, is something of a tour de force, about as clear and comprehensive as they come.  It does, to my eyes, read as though Judge Moss well understood that his opinion could serve as a signpost for the new trails that challengers will have to navigate.

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[1] The Plaintiffs claim that the Proclamation violates (1) “the asylum statute, which gives aliens “physically present in the United States” the right to apply for asylum, “irrespective of such alien’s status,” 8 U.S.C. § 1158(a)(1); (2) the withholding of removal statute, which prohibits the Secretary of Homeland Security from “remov[ing] an alien to a country if the Attorney General [or the Secretary] decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion,” 8 U.S.C. § 1231(b)(3); (3) the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), which implements the United Nations Convention against Torture and Other Curel, Inhuman, or Degrading Treatment or Punishment (“Convention Against Torture” or “CAT”), 8 U.S.C. § 1231 note, and the Department of Justice and Department of Homeland Security regulations implementing FARRA, see 8 C.F.R. §§ 208.16, 1208.16, which require immigration officials to process applications for protection under CAT in a prescribed manner; and (4) the Immigration and Naturalization Act generally, which establishes the exclusive procedures for determining whether and how to remove an alien from the United States.”   Additionally and “most fundamentally,” they assert “that the authorities that Defendants invoke in support of the Proclamation and implementing guidance do not authorize Defendants’ actions.”

[2] The agencies named as defendants in the suit are the Department of Homeland Security, the Department of State, the DOJ,  and three components of the Department of Homeland Security (Customs and Border Patrol (“CBP”), Immigration and Customs Enforcement (“ICE”), and United States Citizenship and Immigration Services (“USCIS”)).

[3] The court brushed aside the Administration’s argument that Mississippi v. Johnson, holding that the federal courts cannot enjoin Presidential action, foreclosed the relief plaintiffs were seeking:

“Defendants raise one, final redressability argument, which merits only brief discussion. They argue that the Court lacks authority to enjoin the President (citing Mississippi v. Johnson, 71 U.S. 475, 501 (1867)), and that, as a result, setting aside the implementing guidance will not redress the Plaintiffs’ asserted injuries. On Defendants’ telling, no matter what the Court does, the Proclamation will remain in effect and, even if the implementing guidance is enjoined or vacated, the Proclamation will continue to preclude immigration officials from considering Plaintiffs’ requests for asylum or withholding of removal. Justice Scalia spoke directly to this issue in his concurring opinion in Franklin v. Massachusetts. He wrote:

‘None of these conclusions, of course, in any way suggests that Presidential action is unreviewable. Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President’s directive, see, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 572 (1952); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)—just as unlawful legislative action can be reviewed, not by suing Members of Congress for the performance of their legislative duties, see, e.g., Powell v. McCormack, 395 U.S. 486, 503–06 (1969); Dombrowski v. Eastland, 387 U.S. 82 (1967); Kilbourn v. Thompson, 103 U.S. 168 (1881), but by enjoining those congressional (or executive) agents who carry out Congress’s directive. Unless the other branches are to be entirely subordinated to the Judiciary, we cannot direct the President to take a specified executive act or the Congress to perform particular legislative duties. 505 U.S. at 828–29 (Scalia, J., concurring in part and concurring in the judgment).

D.C. Circuit precedent, moreover, is to the same effect. As the D.C. Circuit observed in Reich: “Even if the Secretary were acting at the behest of the President, this ‘does not leave the courts without power to review the legality’” of the action and “‘to compel subordinate executive officials to disobey illegal Presidential commands.’” 74 F.3d at 1328 (quoting Soucie v. David, 448 F.2d 1067, 1072 n.12 (D.C. Cir. 1971)). Because the President does not personally take “the final step necessary” to reject a request for asylum or withholding of removal, much less to repatriate or to remove an individual from the United States, this is not one of those rare cases in which the courts are powerless to review executive action. Pub. Citizen v. U.S. Trade Rep., 5 F.3d 549, 552 (D.C. Cir. 1993). As a result, the question of how most appropriately to effectuate the Court’s decision is a question of remedy and not redressability. (emph. added)

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Source: https://reason.com/volokh/2025/07/03/a-question-of-remedy-not-redressability/