SCOTUS Oral Argument Illustrates Judicial Coup Against Trump

The Supreme Court heard oral arguments on Thursday in three cases concerning challenges to President Trump’s birthright citizenship executive order. The question before the high court was not, however, the constitutionality of the EO, but rather whether the lower courts had authority to issue injunctions on a nationwide basis to bar implementation of an EO. You would be hard pressed to know that, though, from the justices’ questions — the overwhelming number of which focused instead on how to stop Trump.

“So, as far as I see it, this order violates four Supreme Court precedents,” Justice Sotomayor declared early in the argument, referring to the Trump Administration’s EO on birthright citizenship. “And you are claiming that not just the Supreme Court — that both the Supreme Court and no lower court can stop an executive from — universally from violating that holding — those holdings by this Court,” Justice Sotomayor further charged. “[W]hy should we permit those countless others to be subject to what we think is an unlawful executive action,” the justice pushed, when a nationwide injunction could immediately remedy the executive branch’s unlawful action.

Justice Kagan likewise framed the question for the Court as how to promptly halt the implementation of a president’s EO which is “dead wrong” on the law. “[E]very court has ruled against you” on the birthright citizenship question, she intoned to Solicitor General D. John Sauer. 

“If one thinks — and, you know, look, there are all kinds of abuses of nationwide injunctions, but 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 in what time frame on your set of rules without the possibility of a nationwide injunction?” Justice Kagan further questioned the Trump Administration.

Those excerpts were but a few exchanges during the nearly three-hour hearing, with Justices Sotomayor and Kagan monopolizing much of last week’s oral argument with their questions focused solely on a solution: In effect, how do the courts expeditiously stop Trump, other than with a nationwide injunction? In positing this question, Justice Kagan even acknowledged “there are all kinds of abuses of nationwide injunctions . . . ”

From a legal perspective, the two liberal justices have it entirely backwards: The legal question for the justices was not how do courts accomplish their goal of stopping Trump without nationwide injunctions, but rather, do courts have the authority to issue nationwide injunctions?

The Supreme Court spent little time probing that question, which includes two fundamental issues. The first issue is whether nationwide injunctions are within a court’s “traditional equitable authority,” such that Congress, in granting the lower courts equitable jurisdiction under the Judiciary Act, gave judges the power to issue nationwide injunctions. 

Justice Thomas alone focused on that question, asking both sides to explain the history of nationwide injunctions so he could determine if such a broad remedy fell within the courts’ traditional equitable authority. For their part, Justices Gorsuch, Barrett, and Kavanaugh commented only briefly on the historical question of whether universal injunctions fit within the courts’ traditional equitable authority. Those exchanges suggested such nationwide injunctions could not be squared with historical practice, and that the lower courts lacked authority to issue them.

But even if Congress authorized the courts to issue nationwide injunctions, that would merely raise the second fundamental question for the Court: Whether the issuance of nationwide injunctions exceeds the courts’ Article III authority to address “cases” or “controversies.” During Thursday’s argument, the Trump Administration posited that Article III requires courts to “grant remedies that are tailored to remove the injury to the complaining plaintiff,” and nationwide injunctions thus far exceed the courts’ constitutional authority.

The justices spent virtually no time exploring the Article III question — a fundamental question of constitutional law concerning the jurisdiction of the courts.

Taken together, the entirety of last week’s oral argument reveals why the Trump Administration faces a flood of nationwide injunctions. 

The litigants challenging the president’s American First agenda have filed their 100-plus lawsuits in the same handful of courts, which are presided over by liberal judges. And those judges, just like Justices Kagan and Sotomayor, view the Trump Administration’s policies and actions as “dead wrong.” Those lower courts likewise see the question before them as how can they stop Trump.

By reverse-engineering the cases, the lower courts are ignoring what should be the initial questions of standing, jurisdiction, and in some cases even the merits, the latter of which the judges presume the Trump Administration is wrong on. 

But why shouldn’t they? After all, several Supreme Court justices take the same tact. And if a majority of the high court issues a decision in the birthright cases that acquiesces in the use of nationwide injunctions, there will be no end to the use of nationwide injunctions because a judge will always find an excuse to justify the remedy — just as the same justices bemoaning the “abuses of nationwide” injunctions did.

Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.