Trump v. CASA, Inc., Trump v. Washington, and Trump v. New Jersey

Case Analysis

In assessing the government’s application for a stay, the Court will consider four factors:
(1) whether the government is likely to succeed on the merits,
(2) whether the government will suffer irreparable injury without a stay,
(3) whether a stay would substantially injure other parties to the case, and
(4) the public interest.

In addition, the government must demonstrate a “reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari.” Hollingsworth v. Perry, 558 U.S. 183 (2010).

The parties wrangle over the stay factors and the likelihood that four justices would vote to hear the underlying merits. (The government’s arguments are the same across all three cases. We consolidated the plaintiffs’ arguments, which overlap substantially.)

The government argues first that the district courts lacked authority to issue nationwide injunctions because those injunctions grant relief to individuals who are not parties to the case. The government says that Article III and Court precedent limit courts to granting relief only to parties to the litigation. Moreover, the government claims that nationwide injunctions exceed the courts’ equitable jurisdiction. It contends that district courts’ nationwide injunctions upend the hierarchy of the court system because they “imbu[e] the orders of courts of first instance [the district courts] with the type of nationwide effect usually reserved for the precedents of the court of last resort [the Supreme Court].” And it asserts that nationwide injunctions allow litigants to sidestep rules on joinder of parties and class actions. The government says that nationwide injunctions might grant relief to “nonparties who may not wish to receive the benefit of the court’s decision.” And it claims that nationwide injunctions invite forum shopping among courts. Finally, the government contends that nationwide injunctions harm the courts, because they force judges and justices to make rushed judgments on difficult issues.

The government argues next that the district courts’ nationwide injunctions that cover states are “particularly egregious” because states lack standing to sue in the first place. The government points out that states do not have citizenship themselves, and it contends that states cannot sue on behalf of their own citizens.

Third, the government argues that the nationwide injunctions “improperly prevent the Executive Branch from developing implementation guidance” on the EO. The government says that the injunctions impermissibly “superintend the Executive Branch’s internal operations by prohibiting agencies from developing or issuing policies in the first place.” It contends that the injunctions impermissibly encroach on the president’s Article II power to “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” U.S. Const. Art. II, § 2, Cl. 1. And insofar as the injunctions prevent the government from developing guidance, the government asserts that the injunctions are more burdensome than necessary to provide relief to the plaintiffs.

Finally, the government argues that the equities favor a stay. It says that the nationwide injunctions work an irreparable harm on the government by preventing the government from developing and enforcing its policy and from “address[ing] the crisis at the Nation’s southern border.” On the other hand, the government claims that a partial stay “would not harm the only plaintiffs properly before the district courts—the individual plaintiffs and the identified members of the organizational plaintiffs.” Finally, the government contends that the nationwide injunctions “thwart the rule of law.” As to more sweeping relief, the government asserts that affected individuals could still challenge the EO broadly by filing class-action lawsuits, for example.

The plaintiffs counter that the government failed to demonstrate irreparable harm. They say that the universal injunction preserves the status quo, which simply requires the government “to continue complying with the settled interpretation of the Citizenship Clause until this case can be decided.” The plaintiffs point out that the government did not argue that the individual and organizational plaintiffs lacked standing or that the government was likely to succeed on the merits, and they argue that the government cannot claim an injury “from an injunction merely preventing the government from violating the Constitution” or statutory law. (They say that the Court is unlikely to grant review on these issues.) Contrary to the government, the plaintiffs contend that the injunctions do not harm the government by impeding its ability to address immigration at the southern border. According to the plaintiffs, “this case is not about immigration”; the government has other ways to secure the southern border; Congress, not the president, has plenary power to set immigration rules; and Congress enacted legislation protecting the long-held and conventional view of birthright citizenship at 8 U.S.C. § 1401(a).

The plaintiffs argue that “the injunction serves the public interest by preventing chaos and confusion.” They say that because “our society has operated on the assumption of birthright citizenship for so long,” the new standards in the EO would require additional proof and verification that would throw existing administrative systems into a tailspin. They claim that allowing the EO “to go into effect only in part would cause even more complications” because birthright citizenship would depend on where a child is born or whether the child’s parents belonged to a plaintiff organization. Finally, the plaintiffs contend that “it is far from clear the government intends for the [EO] to apply only prospectively,” and that as a result of the EO “millions of current U.S. citizens could learn they are no longer U.S. citizens at all.”

The plaintiffs argue that they need a nationwide injunction to remedy their injuries. They say that sometimes a nationwide injunction must apply to nonparties in order to provide full relief to the parties in the case. This is one of those situations: the organizational plaintiffs have members in every state, and demonstrating their membership would be unduly burdensome and potentially infringe on their associational rights. Moreover, they contend that a nationwide injunction is appropriate because the EO “facially violates the Citizenship Clause and 8 U.S.C. § 1401(a).” The plaintiffs assert that a nationwide injunction “is necessary to preserve the uniformity of United States citizenship,” so that we have one standard of birthright citizenship across our nation. They claim that nationwide relief is not prohibited by Article III, and that the government’s arguments to the contrary are in tension with precedent, administrative practice, and “the history of equitable remedies.”

The plaintiffs argue that at a minimum the injunction should cover the parties—individual plaintiffs and members of the organizational plaintiffs. They say that the government’s position to the contrary conflicts with settled precedent on associational standing, and that this is an inappropriate case for the Court to reconsider that precedent.

The plaintiffs argue that the government forfeited its claim that the injunction improperly prevented the government from implementing the EO. In any event, they say that “the argument is incoherent and unpersuasive” because the government itself muddles any meaningful difference between “enforcement” and “implementation.”

Finally, the plaintiffs argue that if the Court lifts the injunctions, it should incorporate a 30-day delay in its order. This “would at least partially mitigate the chaos that would ensue if the [EO] went into immediate effect before guidance on its implementation and enforcement can be issued.”

Significance

On its face, this case tests whether the government sufficiently carried its burden to obtain a partial stay of the district courts’ nationwide preliminary injunctions. Any way you cut it, that sounds insignificant.

But underlying that facial issue are three hugely significant issues. First and most obviously, the case tests President Trump’s view of birthright citizenship. Here’s just a little background. The Fourteenth Amendment Citizenship Clause reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” In 1898, the Court interpreted this clause to mean that anyone born in the United States—including a person born to non-U.S. citizens—was automatically a citizen of the United States. United States v. Wong Kim Ark, 169 U.S. 649. Congress seemed to validate this reading when it enacted Section 1401(a), which says that “a person born in the United States, and subject to the jurisdiction thereof,” is a “national[] and citizen[] of the United States.”

President Trump takes the view that persons born in the United States to non-U.S.-citizen parents are not automatically “subject to the jurisdiction” of the United States, and are therefore not automatically citizens. In short, according to President Trump, that’s because such persons may owe allegiance to a foreign nation by virtue of their parents’ nationality.

There’s much more to these arguments, and they’ll play out in the lower courts. But for now, they will only play a small role in this case. For one, success on the merits is only one factor that the Court will consider in assessing the government’s application for a partial stay. For another, the government gives short shrift to this argument in its briefing and instead focuses primarily on other factors.

Second, this case raises issues related to state standing and an organization’s standing on behalf of its members. As to state standing, as the government points out, states have indeed increasingly sued the federal government over federal policies that they disagree with. But this isn’t necessarily a problem, so long as states have standing to sue. States sued earlier administrations, too. And the plaintiffs claim that state suits have accelerated against the second Trump administration only because of the flurry of controversial activity from the administration. As to an organization’s standing to sue on behalf of its members, the government contends that the plaintiffs are using this standing to sidestep rules on joinder of parties and class actions. But as the plaintiffs argue, this is not a problem so long as organizations have standing under settled precedent.

Finally, this case tests the Court’s appetite for nationwide injunctions. These have proliferated against recent administrations, along with a companion trend of plaintiff forum-shopping for particular district courts that will be especially receptive to their claims. Some on the Court have expressed skepticism or outright opposition to nationwide injunctions. This case will test whether and how the Court might rein these in.

Whatever happens in this case, we can expect to see this issue come again to the Court, after the lower courts issue their final rulings on the underlying merits.

ATTORNEYS FOR THE PARTIES
For Petitioner

Donald J. Trump, President of the United States
(D. John Sauer, Solicitor General, 202.514.2217)

For Respondent CASA
(Kelsi Brown Corkran, 202.661.6728)

For Respondents Cherly Norales Castillo and Alicia Chavarria Lopez
(Matthew Hyrum Adams, 206.957.8611)

For Respondent New Jersey
(Jeremy Michael Feigenbaum, 862.350.5800)

For Respondent Washington
(Noah Guzzo Purcell, 360.753.6200)

AMICUS BRIEFS

In Support of Petitioners
Donald J. Trump, President of the United States

• Claremont Institute’s Center for Constitutional Jurisprudence
  (John C. Eastman, 909.257.3869)

• West Virginia
  (Michael Williams, 304.558.2021)

In Support of Respondents
CASA, New Jersey, Washington, Cherly Norales Castillo, and Alicia Chavarria Lopez, et al.

• Alan B. Morrison
  (Alan B. Morrison, 202.994.7120)

• BAMN (The Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary)
  (Shanta Driver, 313.683.0942)

• Civil Procedure Professor Suzette Malveaux
  (Suzette M. Malveaux, 540.458.8524)

• Common Cause
  (Gregory L. Diskant, 212.336.2000)

• Corey J. Biazzo, Esq.
  (Corey J. Biazzo, Esq., 703.297.5777)

• G. Antaeus B. Edelsohn
  (Joan Deborah B. Edelsohn, 415.944.9509)

• Legal Historians
  (Virginia Grace Davis, 415.512.4000)

• Local Governments and Local Government Officials
  (Jonathan B. Miller, 510.738.6788)

• Members of the United States Congress
  (Jonathan Weinberg, 313.577.3933)

• National Immigrant Justice Center
  (Charles Roth, 312.660.1613)

• Professor Gabriel J. Chin
  (Darryl M. Woo, 415.733.6000)

• Restaurant Law Center
  (Gabriel K. Gillet, 312.840.7220)

• Scholars of Constitutional Law and Immigration
  (Brianne J. Gorod, 202.296.6889)

In Support of Neither Party

• Chamber of Commerce of the United States of America
  (Elbert Lin, 804.788.7202)

• Professor James E. Pfander
  (James E. Pfander, 312.503.1325)