Trump adversaries see silver linings in his ‘monumental’ Supreme Court win

For Donald Trump, it was a “monumental victory.”

For the Trump resistance, there are signs of hope buried in the fine print.

Those dueling interpretations emerged Friday in the hours after the Supreme Court issued its blockbuster decision in Trump’s challenge to three nationwide injunctions that have blocked his attempt to deny citizenship to children of undocumented immigrants born on American soil.

And both contain an element of truth.

The 6-3 decision has a single headline holding: Federal district judges “lack authority” to issue “universal injunctions,” Justice Amy Coney Barrett wrote for the conservative majority. It’s a breathtaking pronouncement given that district judges, with increasing frequency, have been issuing those sorts of injunctions for decades.

It was precisely the bottom-line result that Trump’s Justice Department asked for in the case. Sweeping injunctions have blocked many of Trump’s second-term initiatives, not just his executive order on birthright citizenship. Now, the Supreme Court has made clear, an injunction against a challenged policy should ordinarily apply only to the individuals or organizations who sued. For everyone else, the policy can take effect even if a district judge believes it’s likely illegal.

But Barrett’s 26-page opinion leaves a surprising degree of wiggle room. Yes, conventional nationwide injunctions are off the table, but Trump’s opponents say they see alternative routes to obtain effectively the same sweeping blocks of at least some policies that run afoul of the law and the Constitution.

The court appeared to leave open three specific alternatives: Restyle the legal challenges as class-action lawsuits; rely on state-led lawsuits to obtain broad judicial rulings; or challenge certain policies under a federal administrative law that authorizes courts to strike down the actions of executive branch agencies.

The viability of these three potential alternatives is not yet clear. But the court explicitly declined to rule them out. That led Justice Samuel Alito — who joined the majority opinion — to write a concurrence to raise concerns that the court was leaving loopholes that could undercut its main holding.

If lower courts permit litigants to exploit those loopholes, Alito wrote, “today’s decision will be of little more than minor academic interest.”

Legal experts were unsure about the practical implications of the ruling — especially in the birthright citizenship cases, but also in other challenges to Trump policies.

“One of the things that’s problematic about this decision is how difficult it will be to implement,” said Amanda Frost, a University of Virginia law professor whose scholarship was cited in the justices’ ruling. “I think it’s really hard to say.”

The class action workaround

The court’s decision explicitly left open one avenue for legal challengers to obtain a broad ruling that can apply to thousands or even millions of people: File a class-action case.

Class actions allow large groups of similarly situated individuals to band together and sue over a common problem. If a judge sides with class-action challengers against a federal law or policy, the judge can issue a binding order that protects everyone in the class from being subject to the law or policy.

Within hours of the court’s decision on Friday, one of the groups challenging Trump’s birthright citizenship policy moved to refashion its case as a class action.

But class actions are not a panacea for the Trump resistance. Federal rules require special procedures before a court can “certify” a class. Litigants seeking to use the class-action mechanism must meet several criteria that don’t apply in ordinary lawsuits. And the Supreme Court itself has, in recent years, raised the legal standards for people to bring class actions.

Barrett wrote that these heightened requirements underscore the need to limit universal injunctions, which she labeled a “shortcut” around the stringent standards that accompany class-action suits.

“Why bother with a … class action when the quick fix of a universal injunction is on the table?” she wrote.

Alito, in his concurrence Friday, warned district judges not to be overly lax in green-lighting class actions.

“Today’s decision will have very little value if district courts award relief to broadly defined classes without following” procedural strictures, the conservative justice wrote.

Broader relief for states

A second potential silver lining for Trump’s opponents is that the court recognized that states may sometimes be entitled to broader injunctions than individual challengers.

Barrett wrote in the majority opinion that district judges are empowered to provide “complete relief” to litigants who are improperly harmed by government policies. And when states sue the federal government, it’s possible, legal experts say, that “complete relief” requires a sweeping judicial remedy.

That remedy might take the form of an injunction that applies everywhere in the suing states. Barrett herself contemplated that it might be proper for lower courts to forbid Trump from applying his executive order on birthright citizenship anywhere within the states that have challenged the order. (About 22 Democratic-led states have done so.)

That scenario would create an odd patchwork: Automatic birthright citizenship would apply in half the country but would disappear in the other half until the Supreme Court definitively resolves the constitutionality of Trump’s executive order.

There is even a chance that “complete relief” for a state might extend beyond the state’s borders and apply nationally — because residents of one state frequently move to another. Still, the bounds of what the court meant by “complete relief” remain murky.

Frost said that it’s unclear what an injunction that affords “complete relief” to a state, while stopping short of a “universal” or “nationwide” remedy, would look like. “I don’t know, and that’s a problem of the court’s own making,” she said.

Nonetheless, Democrats like New Jersey Attorney General Matthew Platkin seized on the “complete relief” opening, saying it was a reason for optimism and effectively an endorsement of what he and other blue state officials had contended since the start. He and other Democratic attorneys general emphasized that they argued at all levels of the court system the need for nationwide relief in the birthright citizen case — because it would be pure chaos if residents left one state where they were entitled to birthright citizenship and moved to another state where they were not entitled to it, or vice versa.

“As I sit here now, as it relates to states, the court confirmed what we thought all along. Nationwide relief should be limited but is available to states,” Platkin said.

Barrett, however, wrote that the court was not taking a firm position on the scope of any injunction the states might be entitled to.

“We decline to take up these arguments,” she wrote, adding that the lower courts should assess them first.

Setting aside agency actions

The third potential workaround for opponents of Trump policies involves a federal statute known as the Administrative Procedure Act.

That law authorizes lower courts to “set aside” actions by regulatory agencies if the courts find the actions to be arbitrary, rather than based on reasoned analysis. That sort of wholesale judicial relief in some ways resembles a nationwide or “universal” injunction, but Barrett wrote in a footnote that the court’s decision does not address the scope of relief in lawsuits filed under the APA.

Some of the lawsuits challenging Trump’s policies have been brought under the APA. For instance, a district judge in Rhode Island issued a nationwide injunction against Trump’s attempt to freeze vast amounts of federal spending after the judge found that the move would violate the APA.

But not all policies are agency actions that would be subject to APA challenges. The birthright citizenship policy, for instance, was promulgated through an executive order, not through any federal agency. On the other hand, the order has a 30-day “ramp-up period” in which agencies will develop guidelines before implementing the order. Those guidelines might become targets for APA challenges.