On Friday, the Supreme Court announced its decision in Trump v. CASA, the case about President Donald Trump’s executive order purporting to rescind the Fourteenth Amendment’s grant of birthright citizenship. All of the states and nonprofits that filed lawsuits claiming the order was unconstitutional won preliminary nationwide injunctions—a form of interim relief that blocks the administration from implementing the order while the cases are ongoing. But in Trump v. CASA, the Court voted on party lines to limit the injunctions’ relief to only the parties in those lawsuits. For everyone who isn’t a member of CASA or a resident of the 22 states that sued, the order can go into effect in about 30 days, rendering children born in those states stateless for the foreseeable future.
Put simply, the six Republican justices on the Supreme Court ruled that Trump can’t illegally strip citizenship from the particular people who sued him, but he can go ahead and violate the constitutional rights of any baby without an attorney. Doing so recreates conditions unseen in the United States since the days of chattel slavery, when a person could be a free citizen in one state, but a noncitizen vulnerable to abduction and abuse in another.
In her majority opinion, Justice Amy Coney Barrett tried to downplay the breathtaking harm by characterizing the case as a mere technical problem, with a technical answer, and other technical alternatives. She emphasized that the Court was not saying whether the executive order itself is legal (there’s a reason for that—it obviously is not). Instead, she said, the sole question before the Court was “whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions.” Barrett said they do not, because “neither the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding.” Yes, you read that correctly: Nationwide injunctions theoretically didn’t exist in old-timey English courts, so now the President of the United States can withdraw constitutional rights at will with a shrug and a “sue me.”
Justice Sonia Sotomayor explained in a dissent joined by the other liberal justices that the Court’s decision gives the government permission to keep acting lawlessly “until the day that every affected person manages to become party to a lawsuit and secures for himself injunctive relief,” whenever that may be. But Barrett argued otherwise. First, she suggested that people who want the Constitution’s protections can join a class action—lawsuits in which one person can sue on behalf of a larger class of similarly-situated people who are being harmed by the same thing in the same way.
And second, Barrett noted that nationwide injunctions may still be appropriate in a select few scenarios, and as far as the states that sued are concerned, this could maybe even be one of those scenarios, potentially. Who knows? Not Barrett, who leaves it to lower courts to figure out. “We decline to take up these arguments in the first instance,” she said.
These gestures fall flat. Federal courts have been curbing would-be plaintiffs’ ability to join and win class-action lawsuits for decades. In 2011, for instance, the Supreme Court decided Wal-Mart Stores v. Dukes and blocked a class-action lawsuit by 1.5 million women employees who experienced sex discrimination. Justice Antonin Scalia reasoned that because Wal-Mart had a formal policy forbidding sex discrimination, and because the women alleged many forms of discrimination—from wage gaps to denied promotions to plain old hostile work environments—there was no common specific employment practice tying all 1.5 million claims together. A couple years later, Scalia led the Court in killing another class action lawsuit, this time ostensibly because different individuals in the class could have won different amounts of damages. Class actions are hardly an adequate substitute for nationwide injunctions when the Court is very reluctant to let people do class actions in the first place.
Just days after the opinion, there already signs that the Court’s class action alternative is an empty promise. CASA is trying things Barrett’s way, and has amended its complaint and moved for certification as a class. And lo and behold, the Trump administration has already said it is opposing certification. Justices Clarence Thomas, Sam Alito, and Neil Gorsuch also all wrote or signed on to concurring opinions in Trump v. CASA which signaled that would-be plaintiffs and lower courts should not use class actions (the very avenue Barrett referenced) or third-party standing (the type of standing the state parties claimed) as alternative ways to get relief. This suggests that the avenue was never really the problem. The problem was the relief itself.
Trump v. CASA is a mind-boggling blend of injuries and insults to the Constitution, common sense, and any sense of moral compass. In dissent, Justice Ketanji Brown Jackson explained that, under the majority’s “topsy-turvy scheme,” constitutional rights effectively do not exist as initial constraints on the president’s behavior. They only exist on the back end—once they’ve been violated—if “a particular plaintiff files a particular lawsuit in a particular court, claiming his (particular) entitlement.” In other words, you don’t really have rights unless you also have the resources to take the government to court and vindicate them.
The Republicans on the Supreme Court plainly wanted to give the Trump administration a way to nullify the Constitution disguised as constitutional interpretation. They achieved their desired outcome by relying on originalist absurdities, focusing exclusively on the breadth of injunctions rather than the blatant violation of constitutional rights, and offering alternatives they know full well are unworkable. Trump v. CASA gave the Court the opportunity to affirm that the Constitution determines one’s status as an American. They handed that authority to Donald Trump instead.
