The Trump administration is fighting to kill 40 court orders blocking its new policies.
WASHINGTON – As the Trump administration fights to
kill 40 court orders blocking some of his most controversial or aggressive new policies , legal experts say the government’s strategy is to break the cases apart, into individual disputes, to delay an eventual reckoning at
the Supreme Court . One called
President Donald Trump ’s legal strategy a “shell game.” Another said government lawyers were “throwing spaghetti against the wall” to see what sticks. “Their bottom line is that they don’t think these cases should be in court in the first place,” said Luke McCloud, a
lawyer at Williams and Connolly who clerked for
Supreme Court Justice
Sonia Sotomayor and Justice Brett Kavanaugh when he was on the D.C. Circuit Court of Appeals. “They are looking for a procedural mechanism that will make it the most challenging to bring these sorts of cases.”
Judges versus the president: nationwide court orders block aggressive policies
Judges have stepped in and blocked a range of Trump's most aggressive policies:
restrictions on immigration , a ban on
transgender troops in the military and
drastic funding cuts to high-profile U.S. agencies such as the Department of
Health and Human Services . The common element: a single judge in one of 94 regional districts around the country paused a policy for the entire country while the case is working its way through court. Presidents of both parties have opposed these kinds of policy blocks. Barack
Obama faced injunctions against Obamacare and Joe Biden's plan to
forgive student loans was blocked. Supreme Court justices have also voiced concerns about district courts setting national policy before the high court gets a chance to weigh in. “As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions,”
Justice Neil Gorsuch wrote in a 2020 opinion in a case dealing with a Department of Homeland Security immigration regulation.
Could class-action lawsuits replace nationwide court orders?
The unresolved question is how − or whether − presidential policies could be blocked if the Supreme Court limits or abolishes the nationwide court orders. A district judge's ruling's impact would extend to the geographical boundaries of where the judge presides. If the case is appealed to a circuit court of appeals, that could broaden the impact because circuits
span multiple states . But Solicitor General John Sauer, the lawyer who argued the Trump administration's position at the Supreme Court, refused to commit, in arguments this week that the administration would obey lower court decisions. If the justices rule against nationwide court orders, one option for expanding the reach of specific cases would be for people to join together in class-action lawsuits. But certifying who gets to participate in the lawsuit can take months or years, while a policy and its arguable harms would survive
. “The Trump administration wants to win by losing,” said Amanda Frost, a
law professor at the University of Virginia who specializes in immigration. “Even if it loses case after case after case, it wins in the sense of implementing his policies nationwide for years.”
Trump supported and opposed class-action lawsuits
As Trump seeks to abolish nationwide injunctions, government lawyers have argued for and against the cases becoming class actions. “I think the government is basically throwing spaghetti at the wall and looking for any excuse and any case to kick it out of court,” said Alan Trammell, an associate law professor at Washington and Lee University who is an expert on nationwide injunctions. A trio of cases at the Supreme Court oppose Trump’s order limiting birthright citizenship to children with at least one parent who is a citizen or legal permanent resident. Sauer, the solicitor general, urged the justices on May 15 to lift all further nationwide injunctions on the policy and argued a class action was the legitimate way to challenge the citizenship order. But Sauer also said he would oppose certifying a class action. After the blockbuster hearing, Trump urged the court not to be swayed by Democratic pressure.
Trump stated in a social media post on May 16 that “THE SUPREME COURT IS BEING PLAYED BY THE RADICAL LEFT LOSERS.” In another set of cases, hundreds of Venezuelan immigrants are fighting deportation under Trump’s
invocation of the Alien Enemies Act . The
high court ruled in April that each immigrant had to file a separate lawsuit in the region where they are detained, rather than join a class action. In a separate case involving Venezuelan immigrants, the
Supreme Court has blocked their removal from the United States until the justices can
decide whether the Alien Enemies Act , which has only been invoked during a declared war, applies to them. The Trump administration contends that the immigrants are enemy combatants because they allegedly belong to a criminal organization. Following the ruling, Trump
said in a social media post on May 16: "THE SUPREME COURT WON’T ALLOW US TO GET CRIMINALS OUT OF OUR COUNTRY!" The Venezuelans, accused of being members of the gang Tren de Aragua, could also potentially be recognized as a class of detainees in Texas, the court said. Requiring individual lawsuits or forcing people to prove they belong in class-action lawsuits would splinter the litigation and delay the eventual results when appeals are exhausted, experts said. “The courts don’t want that. They’re overwhelmed as it is,” said Frost
, the professor specializing in immigration. “But, of course, the Trump administration would like that. It’s trying to flood the zone and overwhelm the institutions.”
Justices rule out class action in immigrant detention cases
The Supreme Court has been scrutinizing the strategy of class actions in Trump cases. A federal judge was considering a class action for Venezuelan immigrants fighting
deportation under the Alien Enemies Act (AEA). But the
Supreme Court ruled on April 7 that the immigrants must file individual lawsuits to force the government to justify their detention. Sotomayor, who dissented, called the decision “suspect” and “dubious.” She accused the government of trying to hustle immigrants onto deportation flights without offering them a chance to contest the allegations, including whether they are gang members, in court. “The Government’s conduct in this litigation poses an extraordinary threat to the rule of law,” Sotomayor wrote. Forcing immigrants to wage their own legal battles could delay the eventual resolution of the cases at the Supreme Court. “That kicks the can down the road and it has the added benefit, from the government’s perspective, of preventing a class action and enforcing this piecemeal litigation,” Trammell, the injunction expert, said. “What it effectively amounts to is this drip, drip, drip approach.”
Trump plays 'shell game' with immigration cases: expert
Steven Vladeck, a
law professor at Georgetown University , noted that in a bevy of recent court rulings, the Trump administration tried to slow down or defeat immigration cases by moving detainees.The
2 nd U.S. Circuit Court of Appeals ruled that the case of a Tufts student named Rumeysa Ozturk should continue to be heard in Vermont, where it began, despite federal authorities moving her to a Louisiana detention facility. A federal judge in Virginia ruled that a Georgetown postdoctoral fellow, Badar Suri, could bring his lawsuit in that state rather than transferring it to Texas, where he is now detained. And a federal
judge in New Jersey continues to preside over the case of Mahmoud Khalil, a Columbia University graduate student activist, despite his transfer to Louisiana. “The good news in all of these developments is that the shell games failed, at least in these high-profile individualized immigration detention contexts,”
Vladeck wrote in his newsletter on developments in federal law.
Justices weigh class-action lawsuits for birthright cases
Justices questioned the lawyers on May 15 about how class-action lawsuits would work in birthright citizenship cases. Gorsuch and Justice Brett Kavanaugh separately asked the lawyers for both sides whether the strategy would provide a remedy if nationwide injunctions no longer existed. “Is there a practical problem?” Kavanaugh asked. New Jersey Solicitor General Jeremey Feigenbaum, who represents 22 states in the case, said yes, because states can't file class actions. Certifying a class is challenging and time-consuming because participants must show they have common interests. For example, immigrant parents who arrived days before the birth of a child might not be considered in the same class as those who arrived 10 years earlier. If the high court doesn't allow birthright injunctions to all states, it would create a patchwork of disparate legal practices. Without a nationwide pause on Trump’s order, Kavanaugh posed, the federal government would refuse to recognize the citizenship of babies born in a state that isn't participating in the lawsuit. Children of undocumented immigrants or tourists would be citizens in some states and not in others. “What do hospitals do with a newborn?” Kavanaugh asked. “What do states do with a newborn?” Justices Samuel Alito and Amy Coney Barrett asked why Sauer sought to abolish nationwide injunctions if class-action lawsuits would accomplish the same thing. “What is the point of this argument about universal injunctions?” Alito asked. Sauer said injunctions encourage litigants to shop for favorable judges and prevent courts from "percolating" over complex issues, or considering them thoroughly before they arrive before the high court. Justice Elena Kagan and Barrett pressed the government's lawyer about whether the Trump administration would obey temporary circuit rulings blocking its policies until the Supreme Court issued final decisions. “Generally, our practice is to respect circuit precedent within the circuit," Sauer said.
" But there are exceptions to that."
