Sam Stein (2:22)

They blocked what is a nationwide injunction.

Lee Litman (2:25)

For the uninitiated, they block the policy from being implemented anywhere as to anyone, even plaintiffs that hadn't sued yet in court.

Sam Stein (2:33)

Okay, and why do we have nationwide injunctions? And secondarily, but relatedly, because this is part of the decision. How long have we had nationwide injunctions?

Lee Litman (2:42)

So why we have nationwide injunctions is sometimes blocking a whole policy is basically the only way you can fully remedy the harm to the plaintiffs that have challenged it. Happy to talk more about why that might be the case as to birthright citizenship. But basically, scholars on nationwide injunctions locate them originating in the early 1900s. So they weren't something that has always been with us. But that's partially because at the beginning of the republic, our federal government just wasn't doing as many things as it does today.

Sam Stein (3:15)

Okay, let's talk a little bit about what you said prior to that. It's sometimes important to block them nationwide to prevent irreparable harm. Because usually, at least for me, at least one of the reasons that I was always told you need nationwide injunctions, that an act is blatantly flagrantly unconstitutional, then there's an obvious necessity to stop it from taking place nationwide. But what you're saying is something a little bit different than that.

Lee Litman (3:42)

Yeah, so I think we could be saying something similar depending on what kind of case we're talking about. But on the birthright citizenship executive order, some states have challenge the policy. And they say, look, in order for us to administer a variety of social services, we need a universal, easy to apply uniform rule of citizenship. And if this policy goes into effect, some states, but not others, what are we supposed to do when individuals travel between states? And so this might be a case where you kind of need nationwide relief.

Sam Stein (4:10)

Right. So someone whose parents may not be US Citizens, is born in Connecticut, travels to Alabama, and if you have a patchwork of laws around birthright citizenship, that person would suddenly become a non citizen in Alabama, can't have that. All right, so the court, Supreme Court in this case gets the case and talk a little bit about what oral arguments were like and what they kind of pretended here.

Lee Litman (4:35)

The oral arguments are really focused on two things, I think. One is the history and tradition of nationwide injunctions and when they originated and whether they were something new or different and susp. And then second is the practical consequences of limiting nationwide injunctions or allowing them. I think the confluence of a variety of factors has created a ton of pressure on the Supreme Court to review emergency applications that arise from nationwide injunctions. So the Supreme Court doesn't like that. On the other hand, there were real concerns about if you prohibit nationwide injunctions, what is that going to do to lower courts ability to enforce the law against an executive branch?

Sam Stein (5:15)

So I guess I want to back up a tiny bit because the case was brought over a specific policy, which is the executive order ending birthright citizenship. Why did the arguments center around nationwide injunctions if the merits of the case were not about necessarily nationwide injunctions? Was that a conscious decision by the Trump administration? Department of Justice?

Lee Litman (5:35)

Yes, exactly. The Trump administration did not ask the Supreme Court to review the merits of the case, that is whether the executive order is actually compliant with the Constitution and federal law. They just asked the court to review this procedural question of assuming a court finds it unlawful, what kind of remedy can they offer?

Sam Stein (5:54)

So the court takes into consideration the issue of nationwide injunctions. And then in its decision today, does it at all address the issue of birthright citizenship?

Lee Litman (6:06)

Justice Sotomayor did in her dissent. So she really begins her dissent by reaffirming the concept of birthright citizenship because she's concerned about what the majority's decision is going to do to it.

Sam Stein (6:16)

Right. But the majority has not actually rendered a decision. In fact, they've only given 30 days. For what? Some sort of conclusion.

Lee Litman (6:25)

So they've given 30 days for the federal government to come up with a set of procedures or process for how they plan to implement the executive order because lower courts had blocked the order before it ever went into effect. The federal government said, we never actually had the 30 day period to create a set of guidelines for how we were going to implement this. And so that's what they are going to begin doing. And then if it's not blocked before then, it could go into effect July 27th.

Sam Stein (6:49)

All right, I want to get to the main course, which is what this means, what not having nationwide injunctions or limited ability to have nationwide injunctions means. But before we get to the main course, I do need to sort of figure out what is going to happen with birthright citizenship here. So 30 days to come up with some rules and guidelines. In the interim is the expectation that these lawsuits that have been brought against the administration over this executive order will then go up the chain of of the courts.

Lee Litman (7:19)

The expectation is the lower courts are going to have to make determinations that the United States Supreme Court suggested would be necessary before they offered nationwide relief. So maybe just we can quickly summarize when the majority said Nationwide injunctions weren't appropriate, because I think that will suggest.

Sam Stein (7:37)

Okay, let's do that then. Yeah. Yeah.

Lee Litman (7:39)

Okay, fine. Okay. So the majority said you can't get nationwide injunctions when a case is brought by an individual plaintiff, just a private citizen. Sure. Right, Joe Schmo. Yeah, right, Joe Schmoe. But you might be able to get nationwide injunctions under two circumstances. One is where a state challenges a policy and where in order to give that state full relief, a nationwide remedy is required.

Sam Stein (8:03)

Haven't 22 or so states challenged this policy?

Lee Litman (8:06)

They have, but what the Republican justices said is we are not going to decide for ourselves whether a nationwide injunction is necessary to remedy the state's harms here. We're going to leave that determination to the lower court in the first instance. So that's what the lower courts are going to be doing, at least in the cases brought by the states.

Sam Stein (8:23)

Didn't they do that, though? I'm confused, because we had a nationwide injunction based on cases brought by 22 states. Now the Supreme Court's saying, I'm going to leave it to the lower court to decide. I, I, maybe I'm not, I'm not a lawyer for a reason.

Lee Litman (8:35)

Well, no. So basically they just created a new legal standard and a new legal test because before this decision, the lower courts didn't have to decide that. Right.

Sam Stein (8:44)

But in theory, in an hour, one of these courts can say, ah, I have the case. I have the lawsuit from California saying that this is flagrantly unconstitutional. I hear now issue a nationwide injunction based on the new Supreme Court standard that the has to be, the objection has to be brought from a state.

Lee Litman (9:03)

Maybe, except three things. So it's possible, you know, that a lower court is going to do that, but then the United States Supreme Court would review their determination, and it's possible that the Republican justices would disagree that in fact, nationwide relief is warranted here. Second is, you have pause for a second.

Sam Stein (9:21)

So now in every instance, the US Supreme Court has to make the determination on every single case whether nationwide relief is warranted, even if it's brought by a state government.

Lee Litman (9:31)

Yeah. So in order to award nationwide relief, a federal court is going to have to determine that nationwide relief is necessary to provide the state with relief. And then the federal government could ask the United States, when you say federal.

Sam Stein (9:44)

Court, when you say federal court, you mean what district? Appellate. Okay.

Lee Litman (9:49)

Yeah.

Sam Stein (9:50)

Okay. Okay. Wow. Okay. So there's more bureaucracy here.

Lee Litman (9:54)

Yep. More law.

Sam Stein (9:55)

Okay. All right. What are the other cases? I interrupt you, but what are the other instances in which you can still.

Lee Litman (10:00)

Get nationwide injunctions, the possibility of class actions. So class actions are where an individual plaintiff says, I'm bringing this case on behalf of myself and others similarly situated. And there's a different set of legal rules that plaintiffs have to satisfy before their case can proceed as a class action.

Sam Stein (10:17)

Class actions can take somewhat different forms. Right. You can have limited class actions. You could have national class actions. Are there standards here that have to be hit for a nationwide injunction now?

Lee Litman (10:27)

Unclear. At least. At a minimum, you would have to show that you are entitled to bring the case as a class on behalf of people nationwide. During the oral argument in the case, the Trump administration suggested that wouldn't be warranted here, and the case would have to be required to be litigated by individuals who are, you know, of different immigration status. So one set of cases by people who are here without legal authorization, another set of cases by people who are here temporarily but lawfully. So we'll see.

Sam Stein (10:58)

But that's. That's with respect to this somewhat narrow case of birthright citizenship. In other future cases, if you wanted to bring a class action suit, would you have to hit standards of different types of people involved in the class action?

Lee Litman (11:14)

Yes. So there's a civil rule of procedure that lays out the requirements for doing a class action, and then a defendant in a class action can say, actually, there are different groups of people here, and you should require them to litigate separately.

Sam Stein (11:29)

Okay, now back to birthright citizenship. So we have 30 days for standards from the administration to be unveiled. And in that time period, what do you expect to happen?

Lee Litman (11:44)

I expect there to be a lot of litigation and a lot of chaos as lower courts try to apply these new legal standards. And honestly, I expect there's some possibility they make their way back up to the United States Supreme Court. Because if a lower court gives any set of plaintiffs a nationwide relief, you know, the Trump administration is going to ask the Supreme Court to revisit it.

Sam Stein (12:03)

Right.

Lee Litman (12:03)

And if there's no nationwide relief, then my guess is the plaintiffs will ask the Supreme Court for it.

Sam Stein (12:08)

It strikes me that we've entered a situation in which basically, SCOTUS is going to have to clear every single nationwide relief or nationwide injunction on a whole host of different merits.

Lee Litman (12:21)

I think that's right. And to the extent the justices were trying to fix the problem of the shadow docket and emergency docket based on nationwide injunctions, they failed.

Sam Stein (12:31)

Explain what the shadow docket is. I know what it is, but.

Lee Litman (12:34)

So the shadow docket is a set of requests that The Supreme Court gets and they decide without full briefing or oral argument. So there are oftentimes requests from the federal government to stay or pause a lower court decision that had ruled against the federal government.

Sam Stein (12:52)

The other thing that has happened here historically is that, you know, defendants or plaintiffs or whatever, people who are against the sitting administration's policies will go court shopping or district shopping to get a nationwide injunction because they want to use the judiciary as a way to put a pause on what they think is an unconstitutional law or executive order. This happened regularly in the Biden administration. It's funny that that history is sort of getting lost in here. It happened over daca, I believe. Do conservatives recognize that they're going to have limitations here too in the future, or are we. Is this going to be sort of consistently applied, or do expect that the court will kind of contort itself and figure out a way to, you know, screw over Democrats when they regain power?

Lee Litman (13:37)

I would not hold out hope for a ton of consistency here. The fact that they retain this standard of nationwide injunctions are okay when necessary to provide states with complete relief, give them a fair amount of flexibility to say, well, Texas gets nationwide injunctions when.

Sam Stein (13:52)

A Democrat is president, but should California have the same standard when a Republican is president? I expect that Xavier Becerra might be very busy in the next couple. Yes, weeks, months, years. What did you make of the ruling from Amy Kobe Barrett and then also the response which seemed a little bit abnormal from Ketanji Brown Jackson. Abnormal in the sense that it was offered in addition to Sota Sotomayor's dissent.

Lee Litman (14:18)

Well, so it's not uncommon for multiple Democratic appointees to write dissents in some of the big cases. This also happened in the immunity decision last term where Justice Sotomayor wrote the primary dissent and Justice Justice Jackson wrote a separate dissent. So I think that the multiple dissents underscore how concerned the Democratic appointees are about this ruling. You have both, both Justice Sotomayor and Justice Jackson basically saying this court has become complicit in this administration's lawlessness.

Sam Stein (14:50)

And Amy Coney Barrett responded to that in a way that was kind of like, I mean, it got maybe I'm just not familiar. I'm certainly not as close a court watcher as you are. But I don't recall two justices sort of addressing it's each other this directly. But Amy Coney Bear responded by saying, you, you want a sort of a runaway judiciary in response to a runaway presidency. And that is not something that the court can entertain. That was her Pushback.

Lee Litman (15:21)

Yeah. So she accuses Justice Jackson of wanting an imperial judiciary.

Sam Stein (15:25)

Yes.

Lee Litman (15:26)

Even as she expresses the concern about an imperial executive. I'm not sure that I would say this is sharper or more pointed than some back and forth between justices have been. It did strike me, honestly, as rather curt in that she said, we're not going to dwell on Justice Jackson's argument.

Sam Stein (15:43)

Yeah, I did notice that.

Lee Litman (15:44)

Yeah. Like, we observe only this jab. Yeah, yeah. Like I'm not going to even bother to respond. Respond. And, but she did respond.

Sam Stein (15:55)

A classic. I'm not really gonna. Then you address it. What do you. I guess let's, let's just end on the sort of the larger picture, though, because those do raise some real serious questions. I mean, the nationwide injunction, I, I remember watching that whole back and forth between Kate Shaw and Josh Holly about this and whether this is, you know, totally unprecedented. And Kate Shaw, who responded, well, in fact, the reason there's so many nationwide injunctions is there's so many flagrantly unconstitutional laws by this administration. At least you have to consider that what does this mean for, for us as a society going forward, you think, with respect to the Trump administration, which is really pushing the bounds of, of laws in a host of different directions, not just immigration, but in terms of, you know, congressional, you know, impoundments and spending and things like that, I could.

Lee Litman (16:42)

Speak forever about this topic. So for now, I guess I would just say, one, it's really eliminating the most effective tool that lower courts had for reining in the Trump administration and blocking some of their illegal policies. I think this is going to dramatically change what civil rights litigation looks like. Second, is there is a lot of irony to the fact that the Biden administration was subject to numerous nationwide injunctions, repeatedly asked the Supreme Court to do something about that in cases where nationwide relief didn't seem quite so warranted as it did here. And the Republican justices decide that five months into the Trump administration, in a case where nationwide relief seems pretty warranted, that now is going to be the time that they are all of a sudden going to say nationwide injunctions are generally inappropriate. And third is, I am really concerned about the extent to which this court has participated in efforts to basically kick the legs from under the table of our mechanisms to enforce civil rights, including the Reconstruction Amendments. You know, here you're basically, again, taking away the most effective tool for ensuring birthright citizenship continues to exist on a nationwide basis. Last term, they said states cannot enforce Section 3 of the 14th Amendment against Donald Trump and disqualify him from office based on his participation in the insurrection. The immunity decision from last term said he cannot face criminal prosecution for the a lot of the actions he took while in office to overturn the results of the 2020 election. And so I take the Democratic appointees concerns quite seriously when they say, look, this is an invitation for the government to bypass the Constitution. Justice Jackson says a Martian arriving from another planet would look at this and say, what good is the Constitution then? And they characterize it as this existential threat to the rule of law.

Sam Stein (18:40)

And one of the things maybe I'm misremembering from what I read, but I believe she referenced, well, what, what happens if a president next, you know, down the line decides they want to confiscate guns?

Lee Litman (18:52)

Yep.

Sam Stein (18:52)

What do we, what would the court say in that situation? And under this logic, what would the court say? I mean, I guess you'd have to get some sort of class action suit, or a state government would have to bring the suit saying, no, this is a violation of the Second Amendment, you can't do this. And then you might be able to get nationwide, nationwide relief, but that's it.

Lee Litman (19:10)

You know, again, as we were talking about earlier, I just think the legal tests the court have adopted give them such flexibility to continue to say nationwide relief is warranted, where we kind of like it, whether that is through class actions, through decisions by particular states that they say warrant nationwide relief. Or there's another exception we haven't talked about, which is it might still be the case under treatment procedure. Exactly.

Sam Stein (19:35)

So talk about the Administrative Procedure act and why that got a carve out here.

Lee Litman (19:39)

So the Administrative Procedure act is a federal law that allows courts to set aside or vacate administrative rules or regulations. And so basically, that is a possibility for courts to block on a nationwide basis by vacating policies that are issued by agencies under the Administrative Procedure Act. But that set of cases where nationwide relief could be warranted does not include the sort of immigration policies issued by the president through executive order. And so that too just seems like a kind of gerrymandering.

Sam Stein (20:13)

What are some of the policies that are being done under the apa?

Lee Litman (20:17)

So some of the APA policies. So it depends a little bit because there's an uncertain category of policies where.

Sam Stein (20:24)

Why did I open up this door?

Lee Litman (20:26)

You know, you invite a lawyer on and ask about legal process and procedures, and this is what you're going to get. But, you know, if you think about, for example, the student debt relief cases, for example, you know, those were subject to the Administrative Procedure act, whenever an agency issues a rule or a regulation, that too is going to be subject to the Administrative Procedure Act.

Sam Stein (20:50)

So, so let me, let me try to put this in a bow and tell me if I'm totally off a big constitution.

Lee Litman (20:56)

All good.

Sam Stein (20:57)

Yeah, the Constitution, we came out on that one, but administrator got, the administration got a very big victory today in that they can now have real ways to bypass lower courts who try to issue nationwide injunctions. However, if you're on the other side of the equation, there are a few reads you can grab at, which is there are avenues that, I mean, it's going to be more burdensome. You're going to be subjected to the Supreme Court's, you know, decision about whether it's qualifies their vague standards. But your avenues are not entirely closed off to get nationwide injunctions around certain issues. And then when they're done, through the Administrative Procedure act, you have even more avenues that are at play for getting nationwide injections. And so what we're going to see is probably a flurry of more legal activity, more sort of thoughtful ways to kind of create class action lawsuits and things like that. And we'll end up in somewhat of a similar place.

Lee Litman (21:56)

I'm not sure we are going to end up in a somewhat similar place.

Sam Stein (22:01)

But that's just back to the Supreme Court is what my similar place is.

Lee Litman (22:05)

Yes. Okay. We are going to end up with a lot of these issues in the Supreme Court, but I think that the landscape is going to look different in that there are going to be fewer nationwide injunctions.

Sam Stein (22:14)

Right.

Lee Litman (22:15)

And that they are going to skew against Democratic administrations and less so against Republican ones.

Sam Stein (22:20)

Yeah, but we're already there.

Lee Litman (22:21)

Okay, that's fair. But now they're just making it formal. Right. Like this is basically the topic of my book. Right. Like declaring preference for Republicans and conservatives.

Sam Stein (22:32)

To be the better one. It's out in the open. You don't have to dance around it. All right.

Lee Litman (22:36)

And finally, that is an optimistic take.

Sam Stein (22:38)

Yeah, I'm trying because you asked for it. Constitution still intact.

Lee Litman (22:45)

I think it is in a little worse shape today than it was yesterday. I mean, you know.

Sam Stein (22:52)

Sure. But I don't want to get, I don't want to get too skies falling about this. I mean, there's definitely skies falling element to it for sure. But I don't want to say it's burning down. No.

Lee Litman (23:01)

Like, I wouldn't put this as the thing that puts us over the ledge into the constitutional crisis. I kind of think we were already there and this is just an added bit that makes our situation more difficult.

Sam Stein (23:14)

Yeah. I will say the thing that kind of gets mean is that it's, you know, we have two instances now of different branches of government just sort of forfeiting their powers and then the executive just kind of gobbling them up. So legislatively, Congress has basically been like, do whatever you want. And now, you know, the judiciary saying, well, we're going to forfeit a lot of stuff. All right, Leah, thank you so much. I'm going to get your book again. It is Lawless how the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes. Leah Littman, thank you for joining the program.