The Supreme Court may hand Trump a legal nuke that blows up the resistance’s last real weapon. “If nationwide injunctions die, Trump wins everywhere—even when he loses and the fight to stop Trump could be crippled forever by one Supreme Court decision.”

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One of the most powerful wings of the Trump resistance may be at risk of losing a crucial tool.

The Supreme Court on Thursday scheduled oral arguments on a momentous question: What is the extent of lower court judges’ power to block a president’s policies nationwide?

If the high court grants the Trump administration’s request to limit or lift three nationwide injunctions blocking his bid to end birthright citizenship, it could cripple the ability of President Donald Trump’s opponents to seek — and judges’ ability to grant — such blocks entirely. Federal judges across the country have already applied the remedy to halt key parts of the president’s agenda in lawsuits challenging anti-diversity initiatives, cuts to federal medical research, the pause on refugee admissions and a freeze on nearly all federal grant spending.

Such limits on the executive branch, Trump administration lawyers say, prevent the government from functioning properly. And President Joe Biden’s Department of Justice, Trump administration officials point out, also asked the justices to limit lower courts’ nationwide injunction powers. Though the justices didn’t take up that request, conservative members of the court have been public about their desire to restrain the broad applications of nationwide injunctions.

The Supreme Court’s decision to weigh the power could dramatically impact how Trump’s policies are applied across the country. Without nationwide blocks, some policies, such as birthright citizenship, could be put on hold in certain states while allowed to take effect in others as litigation plays out. The result could be an inconsistent, even chaotic, patchwork where Trump could enforce his agenda in some places but not others.

That’s because the justices might declare that trial judges can enter injunctions that apply only in the geographic districts where they are appointed. Or the justices might restrict trial judges from issuing remedies that go beyond the specific litigants in a particular case. That would mean, for instance, that a group of blue states challenging Trump’s birthright citizenship order might be able to win an injunction blocking the policy in their states — but the policy would remain in place in all other states.

Challengers might still be able to obtain broader relief at an early stage of litigation by having their case certified as a class-action lawsuit with a national scope or by other measures. But those types of procedures are a more burdensome and time-consuming path to combat Trump’s fast-moving clip.

“Without nationwide injunctions, Trump will win by losing, because he can lose cases again and again and still implement his policies for most people, most of the time,” said University of Virginia law professor Amanda Frost, whose work on nationwide injunctions has been cited by the liberal justices. “If he could deport anyone he wants to for the next year, and says he can’t get them back, then he’s accomplished most of his goal even if the Supreme Court eventually says he can’t legally do it.”

Where the justices stand
Three members of the high court’s right flank have already made clear that they would all but eliminate lower courts’ power to issue nationwide injunctions.

Last year, Justices Clarence Thomas and Samuel Alito joined an opinion written by Justice Neil Gorsuch saying that “lower courts would be wise to take heed” of the “rule that any equitable remedy they issue must not be ‘more burdensome to the defendant than necessary to [redress]’ the plaintiff ’s injuries.”

A warning, in other words, that injunctions and other relief should be limited to the named plaintiffs in a case, rather than applying across the country.

“Retiring the universal injunction may not be the answer to everything that ails us. But it will lead federal courts to become a little truer to the historic limits of their office,” and promote more thoughtful rulings, Gorsuch wrote. Justice Brett Kavanaugh has also indicated that the court should review the appropriateness of nationwide injunctions.

#trump #supremecourt