We will hear argument this morning in case 24A
-884, Trump vs. Casa, Inc., and the consolidated
cases. General Sauer. Mr. Chief Justice, and
may it please the Court. On January 20, 2025,
President Trump issued Executive Order 14 -160,
protecting the meaning and value of American
citizenship. This order reflects the original
meaning of the 14th Amendment, which guaranteed
citizenship to the children of former slaves,
not to illegal aliens or temporary visitors.
Multiple district courts promptly issued nationwide
or universal injunctions blocking this order,
and a cascade of such universal injunctions followed.
Since January 20th, district courts have now
issued 40 universal injunctions against the federal
government, including 35 from the same five judicial
districts. This is a bipartisan problem that
has now spanned the last five presidential administrations.
Universal injunctions exceed the judicial power
granted in Article 3, which exists only to address
the injury to the complaining party. They transgress
the traditional bounds of equitable authority,
and they create a host of practical problems.
Such injunctions prevent the percolation of novel
and difficult legal questions. They encourage
rampant forum shopping. They require judges to
make rushed, high -stakes, low -information decisions.
They circumvent Rule 23 by offering all the benefits
but none of the burdens of class certification.
They operate asymmetrically, forcing the government
to win everywhere while the plaintiffs can win
anywhere. They invert the ordinary hierarchy
of appellate review. They create the ongoing
risk of conflicting judgments. They increase
the pressures on this court's emergency docket.
They create what Justice Powell described as
repeated and essentially head -on confrontations
between the life -tenured and representative
branches of government. And they disrupt the
Constitution's careful balancing of the separation
of powers. I welcome the Court's questions. General
Sauer, these universal injunctions, as you say,
have proliferated over the last three decades
or so. Would you discuss, though, the origins
of universal injunctions? In particular, I'm
interested in sort of historical analogs or the
historical pedigree, particularly the Bill of
Peace that was proffered by respondents. Yes,
Justice Thomas, as you, I think, first pointed
out in your separate opinion in Trump against
Hawaii, the Bill of Peace is something very distinct
from a universal injunction. So the Bill of Peace
involved a resolution of a small, discrete set
of claims of a small, discrete group. And even
more fundamentally, it was binding. on the members
of that class and those represented by the class.
So it's much more analogous to a modern class
action under Rule 23. And in fact, as we've argued
in other cases and as this Court has described
in opinions like Ortiz, the Bill of Peace evolved
into and is directly developed into, so to speak,
the modern class action that has all the same
features of a Bill of Peace. So in the words
of Chief Judge Sutton in the Sixth Circuit, the
Bill of Peace was a domesticated animal that
looks nothing like the dragon. of a universal
injunction. I'm sorry. Here, there's a discrete
identified group on one issue. Does citizenship
mean are you born in the territory of the United
States or does it mean are you loyal to someone
else, which is your claim, or are your parents
loyal to someone else? So that's no different
than what happened in a bill of peace. The United
States is bigger, so it extends more broadly,
but it's still an identifiable group on a discrete
singular question. Your Honor, I'd say three
things in response to that. First of all, our
primary contention is that the Citizenship Clause
related to the children of former slaves, not
to illegal aliens who weren't even present as
a discrete class at that time, but more fundamentally
here as to the issue of the Bill of Peace. There
are critical differences. The Bill of Peace was
a binding judgment that would bind absent class
members. Here we have the AC - Well, here class
actions don't bind anyone who opts out, so class
actions are not like bills of peace. I would
think that a Rule 23b2 class action, which would
be the relevant analog here, would be one that
would be binding on absent class members and
would not have the same notice and opt -out procedures.
And more fundamentally, that sort of argument
that there is a commonality here among, you know,
all the people who purport to be affected by
this is the sort of argument that's made in class
certification. So can I ask you a question? Your
theory here is arguing that Article 3 and principles
of equity both prohibit federal courts from issuing
universal injunctions. Do I have your argument
correct? We argue both of those. You argue both
of those. If that's true, that means even the
Supreme Court doesn't have that power. The Supreme
Court would have the authority to issue binding
precedent nationwide. But we couldn't enforce
it against universally, is your argument. If
there was a decision that violated the precedent
of the court, then the affected plaintiffs could
get a separate judgment. And that means you're
talking about that hundreds and thousands of
people who weren't part of the judgment of the
court, they would all have to file individual
actions? Not necessarily. Or a class action?
A class action would be a way that... Isn't that...
That makes no sense whatsoever. Respectfully,
we believe that... Well, what was the purpose
of the Bill of Peace, if not to settle a legal
question finally? And if even the Supreme Court
doesn't have that right and must invite hundreds
of thousands of lawsuits, what are we buying
into? If a set of claims satisfies the rigorous
criteria of Rule 23, Rule 23 is the modern analog
of a bill of peace. We have something very different
here. No, but we don't because the argument here
is that the president is violating an established,
not just one, but by my count, four established
Supreme Court presidents. We have the one arc
case where we said fealty to a foreign sovereign
doesn't defeat your entitlement, your parents'
fealty to a foreign sovereign, doesn't defeat
your entitlement to citizenship as a child. We
have another case where we said that even if
your parents are here illegally, if you're born
here, you're a citizen. We have yet another case
that says even if your parents came here and
were stopped at the border, but you were born
in our territory, you're still a citizen. And
we have another case that says even if your parents
secured citizenship illegally, you're still a
citizen. So as far as I see it, this order violates
four Supreme Court precedents. And you are claiming
that both the Supreme Court and no lower court
can stop an executive from, universally, from
violating those holdings by this Court. We are
not claiming that, because we're conceding that
there could be an inappropriate case. Only a
class, only by a class. Can I hear the rest of
his answer? A Rule 23 class action. And then
the more fundamental point as to all those Supreme
Court decisions you referred to. So what do we
do temporarily? Temporarily, the lower courts
may issue injunctions that remediate the injuries
to the plaintiffs that appear before them. lower
courts in appropriate cases may certify class
action. So when a new president orders that because
there's so much gun violence going on in the
country and he comes in and he says I have the
right to take away the guns from everyone, then
people and he sends out the military to seize
everyone's guns. We and the courts have to sit
back and wait until every named plaintiff gets
or every plaintiff whose gun is taken comes into
court. In appropriate cases, courts have certified
class actions on an emergency basis. We found
at least four cases in recent years where that
was done. But more fundamentally... We profoundly
disagree with the characterization of the merits.
This is now fully briefed in the Ninth Circuit
in case number 25 -807, where we describe how
that characterization of the holding of Wong
Kim Ark and the other decisions is profoundly
incorrect. uh... impact and on the particular
claimant uh... like a claimant who's alleging
that the districting in a particular case has
resulted in racial discrimination against him
or her based on how the district is drawn now
a judicial decision about that one plaintiff
would implicate the redistricting throughout
the whole case so so uh... throughout the whole
state how does your theory address that situation?
That would be what you might call an indivisible
remedy, where what the court is doing there by,
for example, redrawing the district lines is,
as this court said in Gilligan's Whitford, the
only way to remediate the injury of voting in
an unconstitutionally drawn district. That is
similar to abatement of a public nuisance or,
for example, in the school desegregation cases,
where remediating the injury to the plaintiff
before the court necessarily has collateral consequences
to many others. And certain environmental cases
might have a similar thing, for example. You
stop the local plant from pouring water pollution
into the water. That benefits the plaintiff.
It happens to benefit a bunch of other people.
Now, that's very different than what we have
in these universal injunctions, where it is a
divisible remedy. I mean, I point to the holding
of the District of Massachusetts in this case,
looking at the individual plaintiffs. That court
said, well, obviously, I don't have to give a
universal injunction to protect. individuals
other than the individual plaintiffs. They are
given complete relief by an injunction that tells
federal officials only to treat their children
as citizens. I guess the question is, why does
the law require that? I mean, I appreciate that
a court could, in a divisible remedy kind of
case, narrow in to the plaintiff, but you seem
to be suggesting that Article 3 or Rule 23 or
something requires that. And I guess I don't
really understand it. If I may offer two responses
to that. In Article 3 context, that is the principle
announced in Worth against Selden, announced
in Gill against Whitford, and Lewis against Casey,
where this court has said again and again, what
we do in the Article 3 context is grant remedies
that are tailored to remove the injury to the
complaining plaintiff. Sometimes they have even
very broad collateral consequences. But in the
Article 3 context, what the court has not done,
and every time it's focused on this in National
Treasuries Union employees I don't see why then
the divisible remedies or indivisible remedies
is an argument. I mean, if Article 3 is suggesting
that the court has to focus in on the plaintiff
only, then it would seem to me that that would
be the power requirement across the board. I
thought Article 3 was really about limiting the
court's power with respect to jurisdiction. that
we say the court has to determine whether or
not there's subject matter jurisdiction over
the issue and whether or not there's personal
jurisdiction over the defendant. And once you
have those things, the court can evaluate the
merits of the legal issue and issue, especially
in equity, appropriate relief. Now, I appreciate
that there are some prudential concerns that
the court considers. But it seems to me that
in many, many, many circumstances, we have not
required the court to limit their relief to the
particular plaintiff as a matter of constitutional
Article III requirement. I disagree with that.
I offer a response, both first as to Article
3 and then as to the scope of equitable authority.
In the Article 3 context, this court said in
Worth against Selden, for example, that the Article
3 judicial power exists only to redress the injury
to the complaining parties. Again, in Gill against
Whitford and Lewis against Casey. All right,
so let me give you a hypothetical. So suppose
we have a manufacturing plant that unlawfully
releases environmental toxins into the air. And
we have a plaintiff who lives near the plant,
brings a nuisance lawsuit, and says they're being
harmed by unlawful release. Your argument suggests
that the judgment for the plaintiff has to narrow
in on preventing, to the extent possible, preventing
harm to the plaintiff. But it seems to me that
that's not necessarily the case. You suggest
with the Chief Justice in response to him that
there can be incidental beneficiaries, that the
court could say no more toxins if it's unlawful
for the defendant to do that, correct? Yes, we
do. So why? Why, if your Article 3 principle
is correct? Because again, the Article 3 principle
is remedying the injury to the plaintiff or set
of plaintiffs could be many who are before the
court that has collateral consequences that could
help. Let me ask you on that point, would one
distinction be who's bound by the judgment? Like
I'm wondering whether if the plaintiff needs,
you can only think Judge Strauss said in the
A circuit when addressing this issue, you can't
peel off part of a nuisance. So the whole thing
has to be shut down. Could a neighbor sue affirmatively
to hold the nuisance maker in contempt if he
started to to begin again the nuisance. That's
a great point. It would not be bounding on those
collaterally benefited parties, so to speak.
I don't want to call them parties because they're
not parties before the court. And that, of course,
highlights one of the deep problems with the
universe. But why isn't that the answer, though?
Well, could you do that now for the universal
injunction? Could a plaintiff, for example, who
has the protection of the universal injunction
but was not named in the suit? Bring a contempt
action of the sort. I just described they could
not do that But what they could do is run to
any of 93 other judicial districts and bring
their own lawsuit if they if then no no Under
the under the injunction as it stands under the
injunctions as they stand could a non named plaintiff
Who has the benefit of the universal injunction
that's currently in place? Could that plaintiff
bring a contempt proceeding? We would, or I guess
I shouldn't call them a plaintiff. We would dispute
that they would have the standing to do that
because it goes to the heart of. Well, no, no,
no. Let's see. Maybe I'm not being clear. Assume
the universal injunction is good, like drop your
argument right now. Oh, I see. As they currently
stand, could someone who is not named in the
suit but a beneficiary bring a contempt proceeding?
I think that that is what the respondents would
certainly contend. Do you concede that the plaintiffs
could bring a Rule 23, like the individual plaintiffs?
We would dispute, I mean, we'd have to address
the Rule 23 issues, kind of, all the criteria
as they came up. Okay, but you could, they could
seek it. Okay, and then last question. They haven't
done that in Washington. It's just never been
briefed because... Okay, just last question on
this point. The states have a different kind
of claim for financial harm, and they've pointed
out that it would be very difficult to remedy
that without some sort of broader relief. I know
you can test their standing. I want you to assume
that I think they have standing. Why wouldn't
they be entitled to an injunction of the scope
of the one that has currently been entered? I
would say two reasons. First of all, it's not
necessary to provide complete relief to the plaintiffs.
What we offered, for example, in the District
of Massachusetts in the First Circuit was an
injunction that would enjoin the federal officials
and order them to treat the people who would
otherwise be covered by the executive order as
eligible for the services that result in the
pocketbook injuries to the states. And there's
really no response to that. That is obviously
would fully remediate their injuries and does
not require the injunction to be applied in all
other 50 states. one state comes in and says,
well, people are going to move across state lines.
Therefore, we've got 21 states in this case who
don't want this relief. Sorry, you've got to
impose it on everybody, because it has to be
offered to this one particular state. So that's
one response. The other response is this notion
that the states have to be provided a complete
relief because of interstate travel and patchwork.
I think that's very effectively responded to
by Chief Judge Sutton's opinion in the Second
Circuit, where he says, This is a problem. If
we adopt this logic, it justifies universal injunction
in every single case. And that can't be the case.
Fifth Circuit's recent DACA decision comes to
the same conclusion. Well, what do you say, though,
to the suggestion, General, that in this particular
case, those patchwork problems for, frankly,
the government, as well as for plaintiffs, justify
broader relief? As to the government, again,
Chief Judge Sutton addressed that directly as
well when he said, that's the federal government's
problem. In other words, the federal government,
for example, in the First Circuit, we offered
that as a narrower scope of injunction. And the
decision was, well, that would cause you too
many administrative problems. And I think Chief
Judge Sutton directly addresses that when he
says, that's a problem for the executive branch.
That's your problem. All right. And then with
respect to class certification, your friends
on the other side point out that that takes time.
And there are, as you've emphasized, hurdles
that have to be met to achieve class certification.
And the argument, of course, is that the injury
is immediate and ongoing and, as Justice Sotomayor
suggested, might be seriously questioned as to
its compliance with this court's precedence.
Your thoughts? I would offer a couple of things
in response to that. First of all, there are
tools for the courts to have tools to achieve
sort of class -wide universal relief. I referred
earlier that we found four recent district court
decisions where class -wide relief was given
a kind of an emergency basis. However, more fundamentally
than that... And you agree that that's appropriate
in certain cases? It may be appropriate. I do
not concede that it's appropriate in this case,
but it may be appropriate in other cases. Certainly
it's an equitable tool that is consistent with,
for example, the grant of equitable authority
in the 1789 Judiciary Act as this court interpreted
in the group of Mexicano decision and honestly
a line of decisions going all the way back to
the early 90s. century. So there are two rules
to address emergency situations, but more fundamentally
than that, it is a feature, not a bug, of Article
3 that courts grant relief to the people who
sue in front of them. So the notion that relief
has to be given to the whole world because others
who have not taken the time to sue are not before
the courts is something that results in all these
problems. Last question. Do we need to reach
the Article 3 question? I mean, wouldn't it be
wise even if you were to prevail for the court
to reserve that question rather than decide that
Congress, for example, could never endow this
court with that authority? That's exactly correct.
The court does not have to rest on Article 3
because the court could say, and as we've argued
and as Justice Thomas' separate opinion in Trump
against Hawaii says, the 1789 Judiciary Act,
when it said suits in equity are what the federal
courts can do, had nothing like this in mind.
And then I point to the language in Grupo Mexicana
where the court said there was an issue was a
preliminary injunction that froze and likely
insolvent debtors assets so that the plaintiff
could collect at the end of the case. And the
court said that's a nuclear weapon in the law
that had no analog in 1789 in the practices of
the court of Chancery. And if that's a nuclear
weapon, I don't know what this is where repeatedly
40 times in this administration were being enjoined
against against the entire world. I'm just going
to ask you to put yourself in a different frame
of mind, hard to do, assume something you won't
want to assume. But the assumption that I want
you to make is that on the merits, which of course
you did not take to this court, on the merits
you are wrong, that the EO is unlawful. And I
want to ask you, if we assume that, how do we
get to that result on your view of the rules?
It is very difficult for me to adapt the hypothetical,
but I will. I think that that's the important
question in this case. Let's just assume you're
dead wrong. How do we get to that result? Does
every single person that is affected by this
EO have to bring their own suit? Are there alternatives?
How long does it take? How do we get to the result
that there is a single rule of citizenship that
is the rule that we've historically applied,
rather than the rule that the EO would have us
do. Rule 23 would be one natural path, assuming
that a class could be certified, which we might
dispute in this particular case. Well, you might
dispute it. And I think the question is, is there
a class that's just all children of people who
have entered illegally? Is that an appropriate
class? Can the same thing be done under Rule
23? Or are you going to tell me that no, Rule
23 has lots of requirements and you'll never
be able to certify a class like that? Rule 23
provides the equitable tools, subject to rigorous
criteria, appropriately rigorous criteria, to
obtain that kind of class -wide... That suggests
to me you're going to be standing up here in
the next case saying that Rule 23 is inapt for
this circumstance, with this number of people,
maybe with some questions that are individual,
who knows. So let's put Rule 23 aside because
I got to tell you that does not fill me with
great confidence. How else are we going to get
to the right result here, which is on my assumption
that the EO is illegal? That would be a profoundly
wrong result, but I think what I would offer
is that, very similar to Labrador against Poe...
What the court should be engaging here is a balancing
of the equitable factors as to the scope of remedial
relief, not as to the underlying merits. And
our contention that this exceeds the traditional
scope of equity that's reflected in the 1789
Judiciary Act, we're overwhelmingly likely to
succeed on those merits for all the reasons that
are stated in our briefs. I mean, that's a lot
of words, and I don't have an answer for 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? On
this case, and on many similar cases, the appropriate
way to do it is for there to be multiple lower
courts considering it, the appropriate percolation
that goes to the lower courts, and then ultimately,
this court decides the merits in a nationwide
binding precedent. You have a complete inversion
of that through the nationwide injunctions with
the district court. So General Sauer, are you
really going to answer Justice Kagan by saying
there's no way to do this expeditiously? I'll
refer to my former answers. Rule 23 provides
the tools to do so. But you resisted Justice
Kagan when she said, could the individual plaintiffs
form a class? That has never been briefed in
the court below. I do not concede that we wouldn't
oppose class certification in this particular
case. There may be arguments that this case is
or is not appropriate for class certification.
If there were a class appropriate for class certification,
you concede that that could resolve the question
quickly? Yes, absolutely. You concede it could
resolve the question quickly through precedent?
Yes, absolutely. It could do so. I mean, we obviously
dispute that. So just on that point. And if the
court... Sorry, sorry. Sorry to interrupt. Go
ahead, please. All right, I got a quick one.
I got a quick one. Well, I'm going to say just
I'm just going to say just on that point. So,
you know, let's let's say that we're an individual
person even let's say it wasn't a class and goes
up and gets a ruling from the Second Circuit
that the EO is illegal. Does the government commit
to not applying its EO in the entire Second Circuit
or does it say no we can continue to apply the
rule as to everybody else in the Second Circuit?
I can't say, as to this individual case, generally
our practice is to respect circuit precedent
within the circuit, but there are exceptions
to that. Yes, that is generally your practice,
and I'm asking whether it would be your practice
in this case. I can't answer it, because it would
depend on what the lower court decision said.
So there are circumstances, as I was suggesting,
where we think that we want to continue to litigate
that in other district courts in the same circuit
as well. Yeah, so that means it's not even the
normal time it takes. for everything to get up
through the circuit courts and to the Supreme
Court. Because even in those circuits that say
that the EO is illegal, you're going to be saying,
no, we only commit to saying it's illegal to
this one guy who brought the suit. Article 3.
and the court's traditional equitable practices
provide a range of tools to address that, including
potentially nationwide class action. Nationwide
class action, would you say you're going to oppose
when that gets? gets challenged. We are likely
to oppose on the merits. But that gets put up,
you know, proposed. Yes, and if it does not meet
the rigorous criteria of class certification,
the court should not enter that injunctive relief.
That's a feature not above. How about you're
not willing to commit to abiding by the Second
Circuit's precedent in my... Suppose that there's
a single person who brings a suit and it gets
all the way up to us after three or four or five
years. And we say, you know, we really do agree
with those four precedents that Justice Sotomayor
started with, and your EO is illegal. Is that
only going to bind the one guy who brought the
suit? No, that would be a nationwide precedent
that the government would respect. So finally,
once it gets to us, after four years, you're
going to respect that? Yes, and in addition,
we may well respect certain white presidents.
The Second Circuit, it just is... And for four
years... there are going to be an untold number
of people who, according to all the law that
this court has ever made, ought to be citizens
who are not being treated as such. And in the
meantime, any of those plaintiffs could have
come forward and sought preliminary injunctive
relief. And they could do so on a class -wide
basis. There are tools to address this, but the
universal injunction, which is issued here three
days after the executive order was issued, is
not one of those tools. Thank you, counsel. Three
years, four years, we've been able to move much
more expeditiously. I think we did the TikTok
case in a month. Presuming, I gather an important
part of your answer is that people can litigate
differently and one will go to Massachusetts,
the other one will go to Houston, and you'll
get conflicting decisions fairly quickly. Is
there any reason why this court, and I gather
that's your... your safety net is that at the
end of the day, whatever how long the day is,
this court can issue a decision and it will bind
everything else. Is there any reason in this
particular litigation that we would be unable
to act expeditiously? Absolutely not, Mr. Chief
Justice. Okay, thank you. Justice Thomas? General,
when were the first universal injunctions used?
We believe that the best reading of that is what
you said in Trump against Hawaii, which is that
warts in 1963 was really the first universal
injunction. There's a dispute about Perkins against
Lukens oil going back to 1940, and of course
we point to the court's opinion that reversed
that universal injunction issued by the DC Circuit
and said it's profoundly wrong. Now if you look
at the cases at the either party's site, You
see a common theme. The cases that we cite, like
National Treasuries, Treasuries Employment Union,
Perkins against Lucans Oil, Frothingham and Massachusetts
against Mellon, going back to Scott against Donald,
and all of those, those are cases where the court
considered and addressed the sort of universal,
in that case, statewide issue of provision of
injunctive relief. So when the court has considered
and addressed this, it has consistently said
you have to limit the remedy to the plaintiffs
appearing in court and complaining of that remedy.
So we survived until the 1960s without universal
injunctions. That's exactly correct. In fact,
those are very limited, very rare, even in the
1960s. It really exploded in 2007 in our cert
petition in Summers Against Earth Island Institute.
We pointed out that the Ninth Circuit had started
doing this in a whole bunch of cases involving
environmental claims. Justice Alito. You began
by outlining what you see as the practical problems
that have been created by universal injunctions.
If we were to hold that the states have standing,
and if it is possible for a plaintiff to get
emergency certification of a class, suppose we
agreed with you on universal injunctions. but
allowed those other two avenues. Would the practical
problem be rectified to any substantial degree?
Certainly, if there were an injunction that extended
to all of the litigating states, that would cover
a very substantial portion of the country, and
also an emergency sort of class certification
decision might also grant very broad relief.
So the answer is that the practical problem would
not be solved. And if that's the case, what is
the point of this argument about universal injunctions?
I think the point is that universal injunctions
exceed traditional principles of Article III,
and they exceed the traditional equitable authority.
And that's what yields all these sort of pathologies,
so to speak, of the current practice of issuing
them very, very easily. Thank you. Justice Sotomayor?
You answered Justice Gorsuch, I think, correctly.
that if Article 3 precludes universal injunctions,
then even class actions are illegal. That's what
you're arguing, isn't it? I disagree with that
profoundly. How could it? If Article 3 only prohibits
injunctions that affect non -members or non -plaintiffs,
how could Congress give a remedy like a class
action? In Rule 23 class, every member, represented
member of the class has standing by hypothesis.
So every single one of them has an Article 3
injury. And Rule 23, again... So that would be
the only method. It would be very similar to
the Bill of Peace, where all those parties in
their representative capacity are bound. We can
act quickly. If we are worried about those thousands
of children who are going to be born without
citizenship papers that could render them stateless
in some places because some of their parents'
homes don't recognize children of their nationals
unless those children are born in their countries.
They're not going to be receiving federal benefits
because that's the claim of the plaintiffs here
that of the state plaintiffs that they're not
going to be able to provide services to those
children, shouldn't we grant cert before judgment
on that issue? If we're afraid that this is,
or even have a thought that this is unlawful
executive action, that it is Congress who decides
citizenship, not the executive, if we believe,
some of us were to believe that, Why should we
permit those countless others to be subject to
what we think is an unlawful executive action,
as unlawful as an executive taking the guns away
from every citizen? Is this the kind of case
where the equities would call for that? And why
wouldn't it? It's a pure legal question. What
does the Constitution mean with respect to citizenship?
There are no individual facts that would alter
our conclusion. If we can't do it by a universal
injunction, because you say Article 3 doesn't
permit that, Article 3 wouldn't permit us to
give a universal injunction, even if we rule.
Why don't we grant cert before judgment so that
all of these parents would have a firm Supreme
Court decision that they can take where? Because
you're saying nobody can grant a universal injunction.
No party has asked for that in this case. I think
one reason is that would deny the court of the
benefit of percolation and multiple lower courts
of a novel and sensitive and important constitutional
question. Right now, we have multiple courts.
We have novel courts who have percolated this
issue and said, you're violating precedent. Not
only precedent, but the plain meaning of the
14th of the Constitution. Respectfully, I think
what we have are lower courts making snap judgments
on the merits that ignore the fundamental principle
of the 14th Amendment that it was about giving
citizenship to the children of slaves, not to
the children of illegal immigrants who really
were not even a very discreet class at that time.
And that's a sort of argument that deserves regulation.
And there were some people in Congress who argued
against the 13th Amendment just because of that.
Some people who argued against passing the amendment
just because of that, because it would give citizenship
to gypsies. I think the relevant history of the
14th Amendment is the statements of Senator Trumbull,
who emphasized that domicile was the key criteria.
And he said that in a letter to Andrew Jackson.
And we've cited our nine circuit reading a host
of decisions that back that up. And that rejected
repeatedly. We can go into the history of citizenship,
but I still go back to my question. You claim
that there is absolutely no constitutional way
to stop, put this aside, to stop a president
from an unconstitutional act, a clearly, indisputably
unconstitutional act, taking every gun from every
citizen. We couldn't stop that. I disagree with
that for the reasons I've said, including the
equitable tools. No, because you said to us we'd
have to wait until there was a final judgment.
You're not sure you would respect the judgment
of every circuit, you're not sure that you would
respect even a final judgment of the Supreme
Court, because it only binds the parties before
it. And if there's no class action, that only
binds the parties before the court. I don't think
there's a, so to speak, really, really unconstitutional
exception to the strictures of Article 3 or the
scope of equitable authority. And the court should
not recognize one, because what we see, not just
in this case, but in the 39 others, is that district
courts who are issuing these injunctions all
passionately disagree with the thing that's being
challenged in that. So that principle that, well,
this we think is really unconstitutional, therefore
we should ignore the general principles of Article
3, is not a principle the court ought to adopt.
Justice Kagan. So, General, on this question
of expedition, I mean, it sort of depends on
the government's own actions in a case like this
one. where one can expect that there is not going
to be a great deal of disagreement among the
lower courts. I mean, let's assume that you lose
in the lower courts pretty uniformly, as you
have been losing on this issue, and that you
never take this question to us. I mean, I noticed
that you didn't take the substantive question
to us. You only took the nationwide injunction
question to us. I mean, why would you take the
substantive question to us? You're losing a bunch
of cases, this guy over here, this woman over
here. You know, they'll have to be treated as
citizens, but nobody else will. Why would you
ever take this case to us? Well, in this particular
case, we have deliberately not presented the
merits to this court on the question of the scope
of remedies, because, of course, that makes it
a clean vehicle where the court doesn't have
to look at the past. You're ignoring the import
of my question. I'm suggesting that in a case
in which the The government is losing constantly.
There's nobody else who's going to appeal. They're
winning. It's up to you to decide whether to
take this case to us. If I were in your shoes,
there is no way I'd approach the Supreme Court
with this case. So you just keep on losing in
the lower courts. And what's supposed to happen
to prevent that? Again, I respectfully disagree
with that forecast of the merits. But in response
to the question, what I would say is We have
an adversarial system. And if the government
is not, for example, not respecting circuit precedent
on the court's hypothetical in the Second Circuit,
someone injured in the Second Circuit could take
the case up. And they could say, look, the government
is violating circuit precedent on the hypothetical
multiple circuits. That's the case we're going
to take? Somebody who says, after we've said
that this all has to be done one by one by one,
then we're going to take a case from somebody
who objects to? proceeding one by one by one?
I'm not sure I understand the question. I understand
the hypothetical. If you win this challenge and
say there is no nationwide injunction and it
all has to be through individual cases, then
I can't see how an individual who was not, you
know, being treated equivalently to the individual
who brought the case would have any ability to
bring the substantive question to us. They would
bring a lawsuit in the federal district courts
against the government for an injunction protecting
them. And if the government wasn't respecting,
you know, on the... Yeah, and then they win.
And again, I mean, you need somebody to lose.
But nobody's going to lose in this case. It's
just you're going to have, like, individual by
individual by individual, and all of those individuals
are going to win. And the ones who can't afford
to go to court, they're the ones who are going
to lose. The tools that are provided to address
hypotheticals like this, again, I... This is
not a hypothetical. This is happening out there,
right? Every court has ruled against you. We've
only had snap judgments on the merits. Obviously,
we're fully briefing the merits in the courts
of appeals, and our arguments are compelling
more fundamentally in response to the question.
I'm suggesting to you, the real brunt of my question
is, in a case like this... The government has
no incentive to bring this case to the Supreme
Court because it's not really losing anything.
It's losing a lot of individual cases which still
allow it to enforce its EO against the vast majority
of people to whom it applies. And again, Rule
23 provides an avenue to present to address those
very concerns. Thank you. Justice Gorsuch? Well,
Justice Kagan asked my questions better than
I could have. How do you suggest we reach this
case on the merits expeditiously? There's a number
of tools the court could do that. We think this
case is one that cries out for percolation, that
the court should allow the lower courts to address
the merits issue multiple times. It's currently
on briefing in three different cases in the First
Fourth and Ninth Circuits, and we think that
that's the appropriate way to do it. If the court
disagreed, obviously... When you lose one of
those, do you intend to seek cert? If we lose,
yes, absolutely. Justice Kavanaugh? So the technical
problem here seems to be class -wide relief without
the district courts going through the steps to
assess whether a class should be certified, correct?
Correct. Okay. And if you win here on this procedural
point, it seems very likely that the day after
There are going to be suits filed all over the
place seeking class -wide treatment. Maybe statewide
classes, circuit -wide classes, maybe nationwide
classes. I'm sure they're being prepared now.
And on what basis would you oppose a statewide
class? I could imagine certain basis. And again,
we haven't briefed this in the lower courts yet.
You've been promising everyone here that Rule
23 is the cure -all. And I want to explore on
what basis you would oppose a statewide class.
Just take that one for now. For example, and
again, this is very hypothetical because I'm
not predicting that we will or will not oppose
that. We haven't taken a position on that yet.
If you were to oppose it, on what basis would
you? plausibly oppose it. case, that is a natural
candidate for a Rule 23 B2 certification. That
may well be true. The government hasn't taken
a position on that. Our position is not that
class certification will necessarily be granted.
Our position is that Rule 23 is how these sorts
of claims should be channeled. certification
may be granted. It is possible. We don't know
yet because there was a class certification motion
filed at the very beginning in the Western District
of Washington and it was just never briefed because
obviously the pathology here is that the nationwide
injunctions just go blowing past the class certification
procedures. And I guess rule 23b2 for a lot of
the cases we've had over the past 25 years that
you talk about where there have been universal
injunctions or the lower courts have had that
I mean 23b2 could been used in a lot of those,
presumably, correct? Eviction moratorium, student
loans, OSHA vaccine mandate. Do you see the possibility
that 23B2 could have been used instead of? I
mean, some of those were APA, but put aside the
APA issue for now. Yeah, we do set aside that
issue, if I may. I got it. But yes, I agree with
that as to some, but none of the other cases.
It's hard to see how, for example, Biden against
Nebraska, where a state was a plaintiff, might
have been a 23b2 class. And the Alabama Association
of Realtors might have been a much better candidate
for that. And again, not taking a position on
the individual merits. Our overarching point
is there's a tradition. of equity in this country
that goes back to the English Court of Chancery
and what's happening in these universal injunctions,
again, 40 times in this administration, at least
22 times in the last administration, 64 times
in the administration before that, is just disregarding
those appropriate procedures to seek this kind
of global relief. I want to ask one thing about
something in your brief. You said, quote, and
of course, this court's decisions constitute
controlling precedent throughout the nation.
If this court were to hold a challenge statute
or policy unconstitutional, the government could
not successfully enforce it against anyone, party
or not, in light of stare decisis, end of quote.
You agree with that? Yes, we do. If you prevail
here, the original executive order had a 30 -day
period before it took effect. If you prevail
here, should there be any pause so that things
can happen that need to happen for 30 days or
some period of time, or should we not even worry
about that? Yes, we can see that the 30 -day
ramp -up period that the executive order itself
calls for never started because the universal
TROs were entered almost immediately, and we
don't dispute that there should be a 30 -day
ramp -up period. for another reason as well,
which is that we've been enjoined from even doing
guidance, even formulating a policy. And that
itself is another problem with these injunctions.
On the day after it goes into effect, it's just
a very practical question how it's going to work.
What do hospitals do with a newborn? What do
states do? with a newborn. I don't think they
do anything different. What the executive order
says in section two is that federal officials
do not accept documents that have the wrong designation
of citizenship from people who are subject to
the executive order. How are they going to know
that? The states can continue to, the federal
officials will have to figure that out. How?
So you can imagine a number of ways that the
federal officials could. Such as? such as they
could require a showing of, you know, documentation
showing legal presence in the country. For a
temporary visitor, for example, they could see
whether they're on a B -1 visa, which would exclude
kind of the birthright citizenship in that country.
For all the newborns? Is that how that's going
to work? Again, we don't know because the agencies
were never given the opportunity to formulate
the guidance. They would have 30 days. They're
only going to have 30 days to do this. You think
they can get it together in time? That's what
the executive order instructs them to do, and
hopefully they will do so. Again, it's a speculative
and hypothetical scenario because they were enjoined
from even starting that process. And then last
question. You mentioned before this has come
up in the last four or five administrations,
primarily. I guess I've thought about that a
lot, too. Why? It seems why might be it's harder
to get legislation through Congress, particularly
with the filibuster rule. Presidents want to
get things done with good intentions. the executive
branches that work for those presidents push
hard to when they can't get new authority to
stretch or use existing authority. And they've
been pushing, understandably, all with good intentions,
all the presidents, both parties, right, with
good intentions to pushing. Is that your understanding
of why this has happened more that there's less?
ability to get legislation because I'm trying
to figure out the why to your opening about the
last four or five administrations. I agree with
it. I think that might be the why, but I'm curious
what you think. I'm speculating about the motivations
of the individual district judges to grant these,
but one explanation might be this is an extraordinary
power. It's a very strong power for the reasons
the questions have reflected. Let me just pause
you right there. The underlying point is that
these district judges are not just doing universal
injunctions they're finding these actions illegal
because they're exceeding existing authority
and oftentimes we are too when it gets to us
finding the actions of presidents of both parties
unlawful because they exceed existing authority
so is that coming up more often because of why
is that coming up more often It's hard to do
a historical analysis, but I would draw an analogy
to the New Deal. And Professor Bray makes this
point in his article that actually there were
very, very passionate challenges to nationwide
policies during the Roosevelt administration,
and they were not addressed by issuing universal
injunctions. He cites an example where in one
case a policy had been held illegal and there
were like 1 ,600 injunctions against that policy,
all protecting the individual plaintiffs. So
if you look at the history, it's not clear that
what we have of disagreement, difficulty, gridlock,
getting things through Congress and so forth,
that's not necessarily new. What is new and is
certainly unique to the last five presidential
administrations is having these given on this
widespread basis and the systematic basis 40
again in the last four months. Thank you. Justice
Barrett. General Sauer, I want to ask you about
a potential tension. Well no, not potential tension,
an actual tension that I see in answers that
you gave to Justice Kavanaugh and Justice Kagan.
You resisted Justice Kagan when she asked you
whether the government would obey within the
Second Circuit a precedent. I'm distinguishing
between opinions and judgments here. Did I understand
you correctly to tell Justice Kagan that the
government wanted to reserve its right to maybe
not follow a Second Circuit precedent, say, in
New York because you might disagree with the
opinion? Our general practice is to respect those
precedents. But there are circumstances when
it is not a categorical practice. This administration's
practice or the long -standing practice of the
federal government? And I'm not talking about
in the Fourth Circuit. Are you going to respect
a Second Circuit? I'm talking about within the
Second Circuit. And can you say, is that this
administration's practice or a long -standing
one? As I understand it, long -standing policy
of the Department of Justice. Yes, that we generally,
as it was phrased to me, generally respect circuit
president, but not necessarily in every case.
And some examples might be a situation where
we're litigating to try and get that circuit
president overruled and so forth. Well, okay,
so I'm not talking about a situation in which,
you know, the Second Circuit has a case from
1955 and you think it's time for it to be challenged.
That's not what I'm talking about. I'm talking
about in this kind of situation. I'm talking
about this week the Second Circuit holds that
the executive order is unconstitutional and then
what do you do the next day or the next week?
Generally, we follow those. So you're still saying
generally? Yes. And you still think that it's
generally the policy, long -standing policy of
the federal government to take that approach?
That is my understanding. Okay, so... But it
sounds to me like you accept a Cooper versus
Aaron kind of situation for the Supreme Court,
but not for, say, the Second Circuit, where you
would respect the opinions. And the judgments
of the Supreme Court. And you're saying you would
respect the judgment, but not necessarily the
opinion of a lower court. And again, I think
in the vast majority of instances, our practice
has been to respect the opinion as well in the
circuits as well. But my understanding is that
has not been a categorical practice in the way
respect for the precedents and the judgments
of the Supreme Court has been. So you're not
hedging it all with respect to the precedent
of this court? That is correct. I believe the
quotation from our application directly addresses
that. And we stand by that completely. OK. Next
question. So this is also a follow -up to some
of the questions that others have asked you about
the merits of the order not being before us.
Did I understand your answer to be because you
think percolation is really important for this
one? We do think percolation is really important
for this one, but the reason the merits are not
before is because we've only submitted a stay
application on the scope of relief question.
And as Labrador against Poe indicates, the scope
of relief is a separate question for them. Oh,
I understand it's a separate question, but there
are plenty of times that the government comes
to us and asks for both. Absolutely. For example,
recently in the Wilkins and Cox application,
we did exactly that. And the reason why you didn't
ask for both here is because you think that the
merits question needs percolation. Yes, but also
more fundamentally, it illustrates that the very
problem with these nationwide injunctions is
they force this rushed, you know, fast and furious
decisions on the merits. So I think it would
be very inappropriate in this case to come to
a stay application saying, please give us a rushed,
you know, decision on the merits of something
that's very, very complex. But the government's
done that in other cases too, right? Those cases.
would be different in this case. The example
I gave earlier, we think it's very clear cut
on the merits. This one is, we concede a novel
and sensitive question. So this one isn't clear
cut on the merits? This one, in this case, we
want the court to address the remedial issue.
If we offer the merit first, that's a vehicle
problem because the court has in many cases just
addressed the merits and not the remedial issue.
And it's imperative from the federal government's
perspective that the remedial question be addressed.
OK, so last question is about why that is. Justice
Alito asked you, well, what's the point of this?
the same thing could happen, which is effectively
the EO being enjoined everywhere via class action
or because it's necessary to provide complete
relief, say, to the states. Is there any difference
in your view between, say, a class is certified
of all individual plaintiffs and they win? And
the executive order class -wide, there's a judgment
saying that it can't be enforced. Do you want
to say, you know, follow up? Is there any practical
distinction you see? Why does the government
care? Is it just the rigors of the certification
process, or is it something more? The rigors
of the certification process. Keep in mind that,
in many of these cases, we successfully oppose
class action. Let's assume, I think, you can't
successfully oppose it here for individual plaintiffs.
Well, I mean, that opportunity to have our day
in court on that is very, very important. I understand,
but let's assume. Go with my assumption. Assuming
that we were to lose... Assume the class is certified.
Is there any benefit? If a class is certified,
and let's say, you know, you were pointing out
that the executive order targets... different
kinds of people. Let's assume that it's commonality
because they only target one portion of the order,
right? In that circumstance, does the government
get anything different? This is back to Justice
Alito's question about what's it to you? What's
the practical difference to you? Do you want
to say anything about whether there's a practical
difference between a universal injunction and
a loss in the class? Absolutely. Among many others,
the represented class members are bound. in the
class action context. And that means that if
they lose, they're bound by that as well. So
they're taking a grave risk, so to speak, by
proceeding through a class action. And it has
this symmetry where the government is bound.
If we lose, they are bound if we don't lose.
And that's a very, very important decision. And
you would respect that judgment? Yes, if it were
a judgment. Now, we may try to litigate another
context to try and get a different judgment from
a different district court. But we would be bound
by that judgment, as would they. And that's the
crucial point. Justice Jackson? So as far as
I can tell, your bottom line seems to be that
what you call universal injunctions give relief
to non -parties without going through the necessary
steps, which you identify in Rule 23. Do I have
that right? I mean, is that sort of like boiled
to bare essence what you're saying? I would say
there's a lot more to it, but that's one very
important point. That's a key point that I want
to focus in on for a moment. I guess I don't
understand why you are saying that these kinds
of injunctions are giving relief to non -parties.
First of all, I think they can be also easily
characterized as focusing only on the defendant
pursuant to the court's jurisdiction, personal
jurisdiction over this person relative to the
subject matter jurisdiction that the court has,
and the relief is telling the defendant stop
doing this thing that the court has found to
be unlawful. So rather than characterizing it
as a quote unquote universal injunction, I think
one could easily see that this is just about
the extent to which the court can constrain a
defendant over whom it has personal jurisdiction,
can it do so completely or just partially with
respect to, you know, just say stop with respect
to this plaintiff? Am I miscar, like I just,
I don't understand where this idea of universal
injunctions comes from in this context. I think
the relevant distinction is an order that orders
in this case the government defendant to cease
allegedly unlawful activity as to the parties
who have come into court and sued and one that
says to the government defendant cease the allegedly
lawful activity against everyone in the entire
world. No, just cease it. Just stop. This thing,
this executive order, I mean we do this in the
uh, APA context all the time, right? The statute
says you hold that the, you set aside the conduct,
right? That it's unlawful. And we don't really
parse it out and say, okay, but it's unlawful
only as it applies to the plaintiff or not. So
it's a very common concept for the court to enjoin
a defendant from doing particular unlawful behavior.
And what you're now asking us to do is to require
that the court have an additional limitation
in its order that says you only have to stop
doing this with respect to the plaintiff. And
that's the part that I don't understand. I guess,
from what I can read from your papers and what
you've said here, that limitation you say comes
from this principle that if you don't do that,
you would be somehow giving relief to non -parties.
But I wonder if that's right. It seems to me
that the relief is the judgment that you provide
to the plaintiff that says, stop doing this conduct.
And you give it only to the plaintiff. That's
where the limitation comes. The plaintiff is
the only person who can go to court after you
violate this order and enforce it. Other people
are incidental beneficiaries of a court ordering
you to follow the law. I mean, that's like everyone
in the world when the court says, follow the
law, anybody who would have been hurt by your
not following the law benefits. OK. I don't understand
why that would limit the court in its ability
to tell you, don't do this unlawful conduct.
Two responses to that. There's a lot there. Two
responses to that. One is that principle that
your question referred to is the holding of the
court in Worth against Selden, and it's reaffirmed
in Gill against Whitford, in Lewis against Casey,
and similar cases that the authority of the federal
court, whether it's viewed as arising under Article
3 or under its traditional scope of equitable
authority, is to remediate the injuries to the
complaining party. And then to address your question
about... Can I just stop you there? I'm, as the
court, remediating the injury by telling the
defendant to stop doing this behavior. The plaintiff
has brought a claim that this executive order
is unlawful. I look at it, I litigate it, and
I say you're right. Stop doing it. You cannot
enforce this order. So I don't understand why
that's like outside the scope of Worth versus
Sullivan. If the court in that case is imposing
what we've called an indivisible remedy, for
example, vacator under the APA, there's a debate
about what set aside means. Assuming it means
to vacate, then the remedy that Congress has
provided as a condition of its delegation to
the agency is if one part of the, you know, if
the regulation is unlawful, then the remedy granted,
which directly remediates the plaintiff's injury
on that hypothetical, is an indivisible remedy
that benefits others. Here, in this case, and
in all the other 40 cases, we see something totally
different. Yeah, I understand. It is not necessary
to remediate the injuries of the plaintiff before
them. I understand. Let me just turn your attention
to one other thing, because the real concern
I think, is that your argument seems to turn
our justice system, in my view at least, into
a catch -me -if -you -can kind of regime from
the standpoint of the executive, where everybody
has to have a lawyer. and file a lawsuit in order
for the government to stop violating people's
rights. Justice Kagan says, let's assume for
the purpose of this, that you're wrong about
the merits, that the government is not allowed
to do this under the Constitution, and yet it
seems to me that your argument says we get to
keep on doing it until everyone who is potentially
harmed by it figures out how to file a lawsuit,
hire a lawyer, etc. And I don't understand how
that is remotely consistent with the rule of
law. You know, a system, and I appreciate that
you go back to English common law and the Chancery
Court, but they had a different system. The fact
that courts back in English Chancery couldn't
enjoin the king. I think is not analogous or
indicative of what courts can do in our system,
where the king, quote unquote, the executive,
is supposed to be bound by the law. And the court
has the power to say what the law is. And so
one would think that the court could say, this
conduct is unlawful, and you have to stop doing
it. I think the catch me if you can problem.
operates in the opposite direction, where we
have the government racing from jurisdiction
to jurisdiction, having to sort of clear the
table in order to implement a new policy. A great
example of this is in the Schilling litigation,
where the military had a military readiness policy.
It was universally enjoined by the DDC. It went
up to the DC Circuit. The DC Circuit stayed that
injunction to allow that policy to go into effect.
And then one hour later, a district court on
the other side of the country universally...
Can I just ask you one final thing, because this
relates to also something that Justice Kagan
said. I would think we'd want the system to move
as quickly as possible to reach the merits of
the issue and maybe have this court decide whether
or not the government is entitled to do this
under the law. Wouldn't having universal injunctions
actually facilitate that? It seems to me that
when the government is completely enjoined from
doing the thing it wants to do, it moves quickly.
to appeal that, to get it to the Supreme Court,
and that's actually what we would want. What
I worry about is similar to what Justice Kagan
points out, is that if the government is saying
no lower court can completely enjoin it, it actually
means that the government just keeps on doing
the purportedly unlawful thing and it delays
the ability for this court to reach the underlying
issue. novel, sensitive constitutional issues
is a merit of our system. It is not a bad feature
of the system. Thank you. Thank you, counsel.
Mr. Feigenbaum. Mr. Chief Justice, and may it
please the court. This court should deny the
emergency application. because this injunction
was properly designed to ensure that the states
would get relief for our own Article 3 injuries
as we suffer significant pocketbook and sovereign
harms from implementation of this executive order,
including from the application of this EO to
the 6 ,000 babies born to New Jersey parents
out of state every year. The U .S. prefers alternative
approaches for granting that relief, alternatives
it never raised in the district court below.
But its approach would require citizenship to
vary based on the state in which you're born,
or even turn on or off when someone crosses state
lines, raising serious and unanswered administrability
questions, not just for the federal government,
but also for the states. And it would offend
the text and history of the citizenship clause
itself. Since the 14th Amendment, Our country
has never allowed American citizenship to vary
based on the state in which someone resides,
because the post -Civil War nation wrote into
our Constitution that citizens of the United
States and of the states would be one and the
same without variation across state lines. The
U .S. has claimed that Article 3 establishes
a bright line rule barring such injunctions no
matter the circumstance, even where the states
do need it to meet their own harms, finds no
support in this court's cases or in the history
of equity. It's argument that a single district
court cannot decide birthright citizenship or
that we need more percolation on that question
for the nation overlooks that this court already
settled this exact constitutional question 127
years ago, and that this EO is contrary to over
a century of executive practice. Finally, the
US's objection that nationwide PIs have simply
become too common in the last few months, a complaint
about other injunctions sought by other parties
cannot undermine the extraordinary basis for
this one. The states, who regularly come before
this court as plaintiff and defendant alike,
agree that nationwide relief can be reserved
for narrow circumstances, but it was needed here.
I welcome this court's questions. Putting the
merits aside, what do you think is the origin
of... or at least a pedigree of universal injunctions
to cleave the bell of peace, if you would discuss
that. Absolutely, Your Honor. So there's two
categories of these broad injunctions. So first,
although we use the term nationwide injunction,
if the nationwide injunction is actually about
meeting our harm and the alternatives are not
legally or practically workable, then it isn't
even a universal injunction, as I know this court's
separate writings has used the term, because
it's about meeting our own Article III injury,
which is our basic submission about this case.
But we do agree that there's some space for universal
relief. We trace it back through the history
from the Bill of Peace through Equity Rule 48,
which specifically clarified that in the American
equitable tradition, it was not always the case
that universal relief would bind to the nonparties,
even as it might benefit the nonparties, continuing
on to the tax collection injunctions in the 19th
century, and then continuing on as recently as
this court's order in AARP. So I do think they've
always been in narrow circumstances. They've
never been the reflexive or norm of how relief
should be granted in this country. but they have
been available. I don't think I need that for
my case, but I do think they're available in
narrow circumstances. You say they should be
available only in narrow circumstances. Why is
that? Yeah, so I could offer the three that I
think make the most sense. But we're mindful
of some of the concerns that the United States
raises. We are states who've benefited from federal
policies. We are states who have our own statutes
and policies. So sometimes we are on the other
side of the V in cases involving universal relief.
So we are sympathetic to some of the concerns
the United States has about percolation, about
running the table in particular cases. We just
don't think that that supports a bright line
rule that says they're never available. And we've
identified, I think, at least three circumstances
where they would make sense to be available.
The first would be in cases where the alternative
ways of remedying the harm for the parties are
not practically or legally workable. That's this
case, and I'll return to that in a second. The
second would be congressional authorization.
So I took my friend on the other side to try
to set aside Vakitor, but I do think that Article
3 objections would raise serious questions for
remedies like Vakitor, for remedies like the
Hobbs Act. Even the Hobbs Act, which could set
a nationwide PI after a multi -circuit lottery,
might ultimately have problems under their view
of Article 3. And then the third thing I would
say is there may be cases in which the ultimate
alternative forms of getting non -party relief
are not legally or practically available. So
that might be a case like AARP, or even a case
like this one, where district courts could consider
the availability of the class action device,
but if it couldn't move fast enough, because
rule 23 doesn't include TROs and PIs, if it couldn't
move fast enough in those contexts, courts might
need to step in anyway. But I think we fit in
the first bucket in this particular case, because
the alternative ways of remedying our particular
significant pocketbook harms to the tunes of
millions of dollars can't be remedied, as the
district court found below, without granting
us this kind of relief. Well, I mean, you could
benefit through percolation and a decision from
this court with reasonable expedition. So I have
no objections to reasonable expedition. We would
have no objection to this court even setting
supplemental briefing on the merits and hearing
the merits directly. I'm happy to talk about
the ways in which I think the merits do bear
on this emergency application. But more fundamentally
to your question, Mr. Chief Justice, I would
just note that I don't think the alternatives
actually fully remedy our injuries in a couple
of different respects. So I heard my friend on
the other side to specifically say today that
maybe there can be an instruction to the federal
government that at least when you're dealing
with the plaintiff states, you treat these individuals
kind of as though they're citizens, even if they're
not really citizens. And that doesn't work not
just for the federal government. I agree, Justice
Gorsuch. It may well be that the federal government
can decide when to take its own medicine. But
I'm talking about administrability burdens on
the states, and I'm talking about administrability
burdens on third parties as well. Can I ask you
a question about that, counsel? Your three buckets
are very thoughtful. The first one seems to me
kind of consistent with traditional equity. which
is if you've got a remedy, the plaintiff's harm.
That's your point there, and you're saying we
fall in that bucket. I get that argument. The
second bucket is possibly Article 3, okay, that
Congress could authorize, maybe has authorized
circumstances, but that doesn't answer the equity
point. So we come to bucket 3. And I'm struggling
to understand what the rule is there. You seem
to suggest, well, if it's really important and
if you have to act expeditiously, then go ahead.
But I think every district court who enters one
of these thinks that's what they're doing. So
what's the constraint there if you share the
government's concerns about the rise of these
things in the last few decades? What teeth does
any of that have? So I do feel like something
of an amicus to this question because nothing
in my injunction rises or falls on this. Exactly.
So I'm happy to answer questions. I need all
the amici I can get. Fair enough, your honor.
So I would say two things about that. The first
is it does require reading the history in a way
more like I do, which does not create a single
bright line rule that this is never available.
Obviously, if someone reads the history as saying
it's impossible. I'm spotting you that for the
purposes of my question. Great. I'm not granting
the promise. I thought you might not, Justice
Korsach. But I'm spotting it to you. And I'm
just saying, well, OK. What would that look like
and how would that be any different from what
we have experienced over the last few decades?
So this is a way in which my first bucket and
my third bucket are actually going to relate
for a moment, so I think this is... No, no, no,
no, no, no, no, no. Don't get to squiggle out
into the first bucket, okay? We're in the third
bucket. I'll answer for the third bucket, which
is I think it requires having district courts
consider the availability of the alternative
and explaining why it's not workable in the case.
I think we've told them to do that and... you
know, gosh, how many times do we have to tell
them to do that? And I think, in fairness to
them, that's what they think they have. So let's,
again, would any case over the last 30 years
come out differently under your your view of
the rule in the third bucket than has. Yeah,
so there's a couple of examples where we don't
think universal relief was appropriate. I'm most
familiar with the state litigation, so most of
my examples will probably come from there, but
I heard my friend on the other side mention the
DACA litigation where Texas sought the termination
of DACA and ultimately the Fifth Circuit terminated
DACA specific to Texas alone. And we thought
that that decision was exactly right because
of the nature of the harms in that case meant
that Texas could get full relief for its harms.
Now we're back to the first bucket. We're just
satisfied. I get that we're gonna always revert
back to the first bucket, but that means the
third bucket's empty. I totally take the point.
I think AARP is a good illustration of the third
bucket that this court confronted recently, where
it was the case that there was this rush. just
a few hours, not possible to go through class
certification. You heard my friend on the other
side talk about the rigors of class certification,
and I don't think my friend on the other side
would agree. It could be done in three hours
through the night, and so there were a necessity
to step in. Do you agree about the rigors of
class certification? It seems to me that 23b2
classes, and you probably, if you have to, are
going to be arguing that they're not so rigorous
to meet for injunctive relief for national policies
that are uniform. So the most important thing
that hasn't come up in the discussion this morning
yet is that they're not available for state litigation.
It talks about persons. It talks about appointment
of class counsel. It talks about going through
this certification process. States, this court's
precedents are really clear about parents' fat
tri lawsuits. States can't represent those individuals
in class actions, nor would we try to. They can't
represent us, and you don't have classes of states.
So the whole framework doesn't apply to state
litigation. So I understood how it might come
up as an alternative. for some other cases you
might see in the future. But for the injunction
you have in front of you from the states, the
whole class device doesn't even work as an alternative.
So I don't see how it can be the answer for us.
But why should you care if the class device doesn't
work as an alternative if you have bucket one?
You don't really need the class device. I think
what you're saying is, will it be frustrating
for states not to have the class device when
the individuals have it? But I don't see why
that's true if giving you complete relief and
in bucket one solves your problems. So I should
be very clear, and I'm sorry for the confusion
on this. This goes back to my colleagues with
Justice Gorsuch. When states are seeking the
relief, states are seeking it in bucket one and
bucket two. as an amicus to the other injunction
I recognize courts are looking at, I think bucket
three could be available. We aren't seeking relief
when it falls into bucket three, because as I
was saying earlier, we're not going to be seeking
relief for other parties. This court's cases
like Bracken make very clear. We aren't suing
to vindicate the injuries that third parties
and our residents are suffering. So when states
come before you, the questions that you would
ask are, are the alternative ways of remedying
our injury going to be practically or legally
workable? and you're going to ask. Did Congress
authorize it, which gets to the vacator question,
which gets to the Hobbs Act question, and so
on. And on that first bucket, which I think describes
this case well, I had a hard time with some of
the colloquies earlier today because I think
they were missing some really serious burdens
that the states are still going to have to bear
in this case if we get something less than a
nationwide injunction. I think it's going to
hinder the administration of our benefits programs.
I think it's going to hinder the participation
in our benefits programs. And I think it's going
to produce unprecedented chaos on the ground.
I might offer examples of each. Before you do,
I'm sorry. How would you get the merits of this
case to us promptly? So there's two different
ways that this court could think about doing
it. So the first is, I heard a couple of colloquies
earlier today to suggest that maybe the states
should sort of have to take some of the burdens
on ourselves because, OK, some people move in.
Maybe that's just something that equity shouldn't
care about. And it may be true, this is Horn
Book equity, that in some cases, states don't
get complete relief for the harms that they suffered.
We just have to eat some of the administrability
burdens. But the merits have always come into
that. because that is just about remedying a
party's own injuries. And the strength of the
ability to remedy our injuries is going to turn
on a peak on the merits. This is partially Ohio
versus EPA and building on Justice Kavanaugh's
Labrador concurrence, where this court said,
you might have some states who really like a
policy and some states who want to get relief
from the policy. And how you reconcile those
two things, who should get relief, who should
benefit from the policy, will turn in part on
a peak at the merits because we have a greater
right to relief from it. I appreciate that. How
do we get to the merits fast? This court could
set supplemental briefing on the merits by an
order tomorrow if it wished, specifically to
say the federal government has proposed that
states get less than complete relief in this
case. We could not possibly think about giving
the states less than complete relief without
looking at the merits. We want briefing. Put
that aside. Assume we've just got the remedial
question before us and we're going to decide
the remedial question one way or the other. Then
what? Oh, then I share some of Justice Kagan's
concerns from earlier that it would rely on the
United States. So I appreciate you share those
concerns. How would you address them? How would
the states plan to get this case to the court
promptly? I think it's very hard to think about
how the states would lose this case given the
state of Supreme Court precedent. It creates
very weird incentives on the certiorari docket
when there's already binding precedent from this
court. We do suffer harms from the application
of this executive order beyond our borders that
we need relief from. If we don't get a full remedy
from that, I suppose we could ultimately seek
cert before judgment on the basis that we still
have Article III injuries that we're suffering.
But we'd be asking this court to grant review
from a circuit. precedent we won on the basis
that we have, continued injuries. It's not impossible.
This court knows best when it grants cert and
when it doesn't. I would think it's not the cleanest
way to tee up a case historically, and so it
would raise some real concerns to the colloquies
earlier today about how this case would ultimately
come before this court. Are you telling us that
we really can't decide the question that we ask
to have briefing and argument on without taking
a peek at the merits? So I'm not saying that
at all. So there's two different ways to think
about this case, Your Honor. One is to say. absolutely,
the states need to get complete relief for their
injuries. And then let's figure out the best
way to do it. And we think the alternatives are
not workable and not legal. If this court is
going to entertain giving us anything less than
full redress for all of the Article III injuries
we bring before you, I don't see how that can
be entertained without a peek at the merits.
Because you always look at the merits to decide
should we get 100 % or 90 % of our own injuries
redressed. What a decision on the matter that
is. I understood to be before us, the narrow
question that I understood to be before us, make
any, be helpful in any way if we do not peek
at the merits and we also do not decide whether
you have standing. So I'm not sure how you could
decide whether or not we got an appropriate scope
of relief without figuring out what our own injuries
are. Because how you decide, this is the United
States' own argument, how you decide whether
or not we should get relief for our own injuries
turns on what our injuries are that require relief.
And so I do think we have pretty significant
pocketbook injuries like in Nebraska to the tunes
of millions of dollars. And whether we get those
remedies or don't get those remedied is going
to turn on the merits, is going to turn on the
nature. of the harms, and then ultimately the
workability of the alternatives. Thank you, counsel.
Justice Thomas? Justice Alito? Well, General
Sauer began by outlining problems that he sees
being created by universal injunctions. And he
said that the issue was a non -ideological issue
and a non -partisan issue. Do you agree with
that? I do think presidents of both parties have
objectives to nationwide injunctions. I agree.
So what do you say about the practical problem?
So let's put out of our minds the merits of this
and just look at the abstract question of universal
injunctions. What is your response to what some
people think is the practical problem? And the
practical problem is that there are 680 district
court judges. They are dedicated and they are
scholarly and I'm not impugning their motives
in any way but you know sometimes they're wrong
and all Article 3 judges are vulnerable to an
occupational disease which is the disease of
thinking that I am right and I can do whatever
I want. Now on a multi -member appellate court
that is restrained by one's colleagues but trial
judge The trial judge sitting in the trial judge's
courtroom is the monarch of that realm and there
are situations in which trial judges, the president
does something, it could be President Trump,
it could be President Biden, it could be President
Obama. The trial judge says this is unlawful
and I'm going to order, I'm going to enjoin it.
And I'm convinced I'm right, so I'm not going
to stay the injunction. And then an application
is made to the Court of Appeals to stay the injunction.
The Court of Appeals gives it the back of the
hand. And then the case comes immediately to
us in the context of an emergency application.
And some of us have said, well, we don't think
we should do anything in those situations unless
it is indisputably clear. that the court below
was wrong. So what do you say to that practical
problem? So we're mindful of the practical problems.
I will say the states have had a through line
as well across administrations. We have never
believed, even as nationwide injunctions restrained
policies that we favored, that they were categorically
off the table. We've always taken the position
that they are sometimes available in narrow circumstances,
whether we like the policy or don't like the
policy. And so you might have some cases where
the nature of the harm, this is the DACA example
from my friend on the other side, where the nature
of the harm which was Texas saying it had to
give benefits to residents in the state is actually
entirely remedied by a nationwide state -only
injunction that applies just to Texas because
that might incentivize individuals to leave Texas
and then Texas doesn't have to give them benefits
anymore. So you might have a case like that,
but sometimes you are going to have cases where
it is impossible to remedy the state's own injuries.
and the alternatives are not practically or legally
workable. And that describes this case perfectly.
And so I don't think the answer is a bright line
that means even in those situations, it's not
possible for the states to get relief. In deciding
the question that is before us here, do you think
we should, never mind, I withdraw that. I have
no further questions. Justice Sotomayor. Let's
start with an answer you've been trying to give
and haven't completed. which are the general
suggested there were two ways that your injuries
could be remedied. He claimed they were both
presented to the court below. I didn't see that,
but that's a matter that we could check on. Do
you agree with me that they were not presented
to the courts below? I do agree with you. So
I want to be very clear, because I think there's
some confusion across the briefing here. We agree,
and I don't think the First Circuit disagreed,
they objected to the nationwide injunction in
the district court, and we attached the briefing
and we attached the transcript. What they didn't
do is provide some of the alternatives they've
pressed in two sentences in their emergency application.
That's what I mean. Okay. So now go through why
you question whether their two suggestions now
that they've only raised before us are inadequate.
to remedy all of your harms. Because complete
relief, he says that there is situations in which
you grant relief that will benefit third parties.
Why is your relief necessary to give you complete
relief, even though it benefits these parents
in other jurisdictions? So I don't think there's
any serious dispute that if you limit the relief
to babies born in New Jersey, we won't get complete
relief. Because 42 USC 1396A, the Medicaid statute,
requires us, the states, to do the citizenship
verification. So it's not true that they can
simply handle it all for themselves. Federal
law requires us to undertake those responsibilities.
And we have in New Jersey 6 ,000 babies born
out of state every year. when they come into
the state and they need benefits. The Boyle Declaration
for Massachusetts suggests that's going to cover
40 % of kids. They come into our state. They
need benefits. We have to do citizenship verifications,
which is a burden for us. That's for you in New
Jersey, but there's, I think, how many states?
That's just an example. We have 23 attorneys
general in this. 23 attorney general. So 23 states
are going to have. babies who were born somewhere
else without a birth certificate that you're
now, if they move into your state, going to have
to do checking on. And that comes to the United
States as alternative, Justice Sotomayor, which
is they say, OK, maybe their citizenship turns
on when they enter New Jersey, maybe for some
purposes, maybe for all purposes, depending on
which sentence you're looking at in the emergency
application. And there are three problems either
way. The first is it will undermine the administration
of our benefits program. So individuals will
move in. When they were born, they were treated
as non -citizens. They didn't get social security
numbers because they wouldn't have been eligible
for the enumeration at birth program in their
states. And they're going to arrive, and they're
going to seek benefits that we administer. But
federal law requires that they have social security
numbers for the administration of those benefits.
This is 7 USC 2025 for SNAP. This is 42 USC 1320
B7 for TANF for Medicaid and so on. So they're
going to need to have social security numbers.
They're going to arrive without them, even though
they were. under this court's precedence, citizens
who should have been in the enumeration at birth
program who should have had social security numbers.
And it's going to be a burden on us, either in
delaying the benefits, training county social
service workers, in having to administer benefits
without the SSNs on a provisional basis. So that's
the administration of the benefits. Let me give
an example on participation, which we have responsibility
for as well. These are babies who were told.
that their families were told that the babies
are undocumented, they aren't citizens, they're
not eligible for these federal programs when
they were born. They come into our states, they
think they're now ineligible, they don't realize
their child is a citizen entitled to these federal
benefits. And so what will happen is we bear
the responsibility, putting in our own state
Medicaid plans, of getting them enrolled. And
that's 42 USC 1367 BB. So we're responsible for
putting in our plan how we're gonna enroll them.
We have to incur substantially more costs to
get them enrolled. enrolled in our programs.
Because they think they're undocumented, they
think they're ineligible because of where they
were born, even though their citizenship has
now turned on when they cross state lines. And
then the last point is, we've never in this country's
history since the Civil War had your citizenship
turn on when you cross state lines. So we don't
have answers to these workability questions,
not just because it wasn't presented in the district
court, not just because it's two sentences in
an emergency application, but because for over
a century, executive practice has been uniformly
to the contrary, building on this court's decision
in Wong Kim Ark. We genuinely don't know how
this could possibly work on the ground. And although
my friend on the other side has complained that
they weren't able to give guidance, the states
didn't object to guidance. The states have no
quarrel with internal steps. And if they want
to put out guidance that says, if Wong -Kamar
gets overruled, this is what we would do, that's
fine. What they can't do is require us to take
any steps or issue guidance that requires everyone
to start planning for something that is so patently
against this court's own settled precedent. Going
back to the history question that Justice Thomas
started with, you relied on the Bill of Peace,
you relied on the tax injunction of the 19th
century, and not so far in the 19th century,
1891, just about the time the 14th Amendment
was adopted, okay? At any rate, there are other
cases one of our amici points out to them. The
Pierce v. Society of Sisters case, the West Virginia
State Board of Education case, those were earlier
than the 1960s. In the Pierce v. Society of Sisters,
the court affirmed a universal injunction that
wasn't even sought by the parents, correct? That's
right. And there what we said was their states
were imposing criminal penalties on parents who
sent their children to private school. And just
two plaintiff schools sued against that penalty.
They sought and won an injunction that categorically
restrained the state from enforcing the law.
That was 1925, correct? That's right. And similarly
with West Virginia, saluting the flag by Jehovah
Witnesses. The injunction was universal. So in
answer to Justice Gorsuch's point, We've had
universal injunctions in some form, correct?
Since the founding. That's right. If I can make
two points on that. In equity, correct. Exactly.
So I agree with your reading of the equitable
history that it goes back from the English pill
of peace through equity rule 48, through the
tax collection injunctions, through equity rule
X, through the ex parte young period you're referring
to, through AARP just a few weeks ago. So I agree
with your read of the history. But I just want
to make one quick point. Well, let me go ahead,
make your point. But I want to finish this thought,
which is You started earlier by saying universal
injunction should not be the preferred remedy,
and it should be limited. You've suggested three
ways to limit it. I agree with you, those three,
and yours clearly falls within one, that's your
claim. But the point that I think my two other
colleagues are raising is how do we ensure district
courts are following that? So so if I can make
a point about the history and make a point about
the guidance on the history I understand that
the United States at the podium today tries to
make the history all about what it calls indivisibility
cases, cases where there's just a unitary on
-off switch, as it were, and either something
happened or it didn't happen, like a redistricting
plan needs to be completely redone, or a power
plan is on or it's off. But if I could give an
example that shows it's not quite so limited,
and it very much requires looking more broadly
at what's practically or legally workable on
the ground, I would point to apportionment as
an example. So say that there's an executive
order that says, we're just not gonna count minors,
people under 18 in apportionment anymore, we're
only gonna count people who are voting age. And
the state of New York files a lawsuit, and it
wins its lawsuit. And all of its 17 and under
-year -olds get counted for apportionment. That
isn't indivisible in any way. It's not a redistricting
plan. It's not a power plant. But it is going
to skew apportionment in a way that is totally
unfair, practically and legally, to third parties.
Because now 17 -year -olds are being counted
in New York, but they're not being counted in
Oklahoma. And you would end up Messing up apportionment
between states for that very reason and that
shows as just a broader insight that we've always
looked to the harms that third parties will suffer
as negative externalities of court orders. And
that's our submission here, that to accept what
the United States wants as against our injunction
and to say that it turns on or off when you cross
state lines doesn't just harm the administration
of our benefits, doesn't just even harm enrollment
in our benefits, also puts chaos on the ground
where people's citizenship turns on and off when
you cross state lines. If ICE has initiated a
removal proceeding when you live in Philly and
you move to Camden, I suppose the ICE removal
is supposed to turn off at that point, potentially,
because your citizenship status has changed.
I don't know if you lose it if you move back
to Philly, whether you were born in New Jersey
or born in Philly, move to Camden and move back.
It's a very porous part of the country. I don't
know if the ICE removal turns back on when you
cross state lines again. And that sort of chaos
on the ground, those implementation questions
we don't know, are serious third -party harms
we've always taken into account. This is North
Carolina versus Covington, where courts ask what's
workable as an injunction matter, and it's also
the winter factor. where factor three looks at
the balance of the equities between the parties
and workability and harm to them, and winter
factor four looks at public interest and the
negative externalities and workability problems
we're imposing on others. General, you've had
a chance to talk about your administrative costs
and the workability problems that New Jersey
would confront. But how about this magnet problem?
I mean, it strikes me as completely obvious that
if you have two states and they have different
rules for citizenship and one benefits babies
and the other doesn't, that everybody moves to
the state where the more favorable rule exists.
But why is it that preventing that harm from
happening should count as providing you with
complete relief. So I think, actually, my point
is somewhat different. I agree with you that
the incentives could potentially factor into
the calculus because we're ultimately experiencing
some harm we might not otherwise to our benefits
programs. But my point is different. Even if
you just take normal migration for New Jersey,
6 ,000 babies born out of state, 8 % or 8 million
every year traveling across state lines, without
worrying about the incentives, we're going to
be looking at that problem for how we administer
benefits programs. I got that. Are you saying
we shouldn't consider? No, I think you can. I
think you can, Your Honor, and it's because of
the nature of three things together. One is it's
the movement, but it's not just the movement.
Two is it's the fact that citizenship, historically,
was something you had at birth or didn't have
at birth. And so you arrive to our state, in
theory, without birthright citizenship, because
you would have been told when you're born in
the hospital what you have or don't. And then
the third, and this is really important, is the
way that citizenship permeates so much, not just
for individuals, but for what states are obligated
to do, whether it's citizenship verification
eligibility, whether it's enrollment in our own
programs, over and over you see citizenship in
Congress's own laws as the on or off switch for
our own administration of benefits. And that's
actually sort of unique. So I don't think every
time people move between states, you automatically
need to have a nationwide injunction. What you
need is a demonstration about how that's going
to contribute to the state's harm. And then I
think this is really important to colloquy as
you were having with the United States earlier.
A court could in an appropriate case say, well
sure, state, you might have to keep some of the
harm. We're only going to remedy 90 % of your
harm because it's too disruptive to everyone
else. But I don't think you can do that in a
case. without looking at the merits. Because
whether we should get to 100 % of our injuries
taken care of or 90 % of our injuries taken care
of will always involve the strength of our merits
showing. And I don't see how you could have a
stronger merit showing than we have here, 127
years of Supreme Court precedent over a century
of executive practice and congressional statutes
that codified both into law in 1940 and 1952.
And given that strength of the merits and the
settled precedent combined with our nature of
harm, I don't think this is a close case for
why we need national relief to remedy our. Thank
you. Justice Gorsuch? Justice Kavanaugh? Justice
Barrett? I have a question about the history.
So Grupo tells us that we have to look back to
1789 and the High Court of Chancery. So I appreciate
that there have been some cases from later, and
you were talking about some of those with Justice
Sotomayor from the early 20th century, maybe
the late 19th century. Can you say, and let's
say that I think the bill of peace is more like
a representational suit that is a forerunner
to the class action. What do you think is your
very best example of something that would look
at the period that Grupo tells us is relevant?
That would support something that looks like
universal relief. So I do think from 1789 from
English equity I do think the best example is
the Bill of Peace and so I understand if we see
it differently. It's a fair point I will just
say quickly on Grupo Mexicano its own tradition
and this is sort of the analogical reasoning
you talked about in Rahimi It looks at that period
but in other times we've also looked at American
tradition to see analogically how we've liquidated
that tradition or not and in American equitable
tradition This is equity rule 48 which specifically
said non -parties are not bound. by certain relief
and even as they may benefit from it. And I take
that to be the principal reason my friend on
the other side thinks that bills of peace look
much more like class actions than they ultimately
look like universal injunctions. And equity rule
48 was to the contrary. Tax collection injunctions
in American history were to the contrary. So
I just have a hard time with that reading even
though I agree with you that you would be starting
in the founding trying to do analogical reasoning
based on what Grupo Mexicano says but using American
equity to answer some of the unresolved ambiguities.
Oh, I completely agree with you. you need some
analogical reasoning. And I don't think that
Grupo completely rules that out. And I mean,
I think even if you talked about the distinction
between a bill of peace and a class action, you
would be looking at some of that. It doesn't
have to be called the same thing. I think the
problem is when we have such a party -centric
history, if it has to be reasoning that fits
within the confines, then I think we have a little
bit of trouble. Let me just ask you one question
about relief. So let's say that I think that
the states do need something broader in order
to have complete relief, even if the universal
injunction is too broad and inconsistent with
Grupo. That isn't how the court below approached
the question, because that isn't what the court
below thought it had to do, because the court
below thought it could just enter a universal
injunction. So how would I go about crafting
some sort of holding or decretal language that
would take care of you and the fact that you
need maybe broader complete relief than maybe
an individual plaintiff would, right? Because
the district court didn't go through that analysis,
you know, the kind of the analysis that you're
telling us today. So tell me practically what
that would look like. So I think the district
court in the Massachusetts case did actually
do a very good job of this. It specifically said,
I'm saying New Jersey is a stand in 23 Attorney
General. The states need this relief. And he
didn't grant universal relief to the individual
plaintiffs in that case. So he did actually ask
for relief for different parties. And he said,
this is necessary for us. Part of why we're talking
about alternatives in a different way at the
podium today is because these alternatives were
not presented to the district court. So the district
court just had before him the idea that maybe
we have to eat some harms or maybe we get universal
relief. And of course, we need universal relief
given the strength of the marriage showing as
between those choices. I think what you could
say is here, there were two sentences in an emergency
application that raise new alternative ways to
remedy the harms. Those sorts of things need
to be raised to the district court. And when
they are raised to district courts in appropriate
cases when states file suit, courts should ask
first. Are those alternatives going to be practically
or legally workable for the plaintiffs and for
third parties? I agree to Justice Gorsuch's point.
If the federal government wants to take on its
own burdens, it can do so, but it can't just
say that for third parties. But you're talking
about what would happen in the future. I'm talking
about what would happen to you now. Oh, so I
think if the United States seriously wanted to
press these alternative with facts about how
they would work and put that before the district
court, parties can always put new alternatives
in a motion to dissolve an injunction before
the district court. That's something that has
happened regularly when there's changed circumstances
or new alternatives. alternatives. They're welcome
to do that in this case or in any other, but
then they're going to have to put forward actual
facts about how it's practically or legally workable.
I will say on its face these two sentences don't
look practically or legally workable for the
reasons I raised, but they'd have to make that
showing in the district court in the first instance.
Thank you. Justice Jackson. So I guess I'm kind
of hung up on the posture in which we find ourselves
looking at these issues. Justice Alito, I think,
focused on this a little bit when he says that
the district court makes this initial determination.
It turns out to be wrong. The remedy, I thought,
was to appeal. And I guess, for me, the question
is whether and under what circumstances the government
keeps on doing the thing that the court has found
unlawful. while the litigation is proceeding
to determine whether or not the government's
activity violates the law. We're sort of in an
interim posture. Many of your arguments, and
I appreciate them, are kind of couched in the
state is going to need complete relief for their
injury. And that's true, definitely, as a final
matter. But here we are at the beginning of this
litigation. No one has determined whether or
not the government's conduct is actually unlawful.
We have a district court, several district courts
and now courts of appeals that say it is and
so as an interim matter we are saying the government
has to stop doing it while we litigate the issue
of the unlawfulness. To me that kind of puts
the whole thing in a different frame. It's sort
of like why isn't the question in this posture,
in this circumstance, can the government or has
the government shown that it is going to suffer
some sort of harm from being made to completely
stop this activity while we're litigating the
lawfulness of the conduct? I don't understand.
And then you say, yes, we're going to suffer
harm. This is the balance of the equities that
are part of the PI and the stay showing. But
I just don't understand why that's not the focus
here. And I apologize because I didn't get a
chance to ask Mr. Sauer this. But maybe he can
address this on his rebuttal. But what problem
is the government facing as a harm matter from
being completely told it has to stop doing this
while we, the court system, determine whether
or not its conduct is lawful? So we included
this in our application. We do think this case
is quite unique in that I do think it's hard.
for the government to show in this particular
case that it needs to be able to act contrary
to this court's settled precedent. That's obviously
come up in a couple of questions today. It's
something of, I realize, the elephant in the
room. I've often been asked to assume that the
merits are put to the side, and I'm fine assuming
that for those questions. But to your point,
you're not wrong. It is quite striking, obviously,
that it's not just that district courts are saying,
this looks like it might be unlawful. They're
saying Wong Kim Ark settled this exact issue
127 years ago. years ago, this court has reaffirmed
it since, over a century of executive practices
built on that. And Congress has codified that
directly into law. So I do think it's a particularly
unusual case for the government to be saying
that it has been quite so harmed and needs this
kind of relief. But at the end of the day, I'm
happy to join issue on when relief may or may
not be appropriate. And I just think we're clearly
on the other side. But you're saying that at
least in some circumstances, from your perspective,
in order to even decide whether or not you are
entitled to an interim complete injunction the
courts now going to have to peak at the merits.
while the merits are being litigated? I think
the court always has to peek at the merits in
deciding whether the party itself should be getting
relief from its harms, including complete relief
as even the United States accepts. So those are
all four of the winter factors. You have to figure
out what the irreparable harm is that you're
trying to deal with. You have to figure out if
we have a sufficient merits showing in order
to eliminate that irreparable harm. And depending
on the strength of the merits showing, you're
also looking at winter's factors three and four.
So this court has given four winter factors that
I think are quite useful in most cases. I took
my friends on the other side to be saying, well,
beyond the winter factors, there's this bright
line rule from Article 3 or the history of equity
that just says it can never get to this point.
I obviously disagree a bit with them on the reading
of that history, but I just think it has no bearing
on the case that the states bring to this court
here. Thank you. Thank you, counsel. Ms. Corcoran.
Mr. Chief Justice, and may it please the court.
The executive order's stripping of citizenship
from U .S. born children is contrary not only
to the 14th Amendment's plain text, but also
our common law history, this court's precedent,
a federal statute, and over a century of executive
branch practice. Every court to have considered
the issue agrees that the order is blatantly
unlawful, a determination the stay application
does not challenge. The government instead argues
that Article 3 and equitable tradition categorically
prohibit providing non -party relief from the
order's enforcement regardless of the order's
illegality or the irreparable harm it inflicts.
The government is wrong. It is well settled that
preliminary injunctions may benefit non -parties
when necessary to provide complete relief to
the plaintiffs or when warranted by extraordinary
circumstances, both of which are true here. The
court should reject the government's efforts
to stay a preliminary injunction that maintains
a status quo all three branches of government
have ratified and operated under for over a century
and that prevent the catastrophic consequences
that will result for the plaintiffs and our country
if the government is allowed to execute an unconstitutional
citizenship stripping scheme simply because legal
challenges take time. I welcome the court's questions.
You say the government is wrong about the availability
of on preliminary injunctions. On what do you
base that? So I think the two reasons I identified,
one, it is well settled and I understood General
Sauer to agree today that universal injunctive
relief is appropriate when necessary to provide
complete relief to the plaintiffs. That is the
case here and I'm happy to talk about that. But
I also, this court has long recognized the availability
of universal injunctive relief in extraordinary
circumstances where it's justified. I think I
would focus particularly on the public interest
and equities prongs of the winter test. And I'm
happy to talk about that as well. But I think
those are the two reasons the government wants.
Do you think that even if one considers the history
not to support you, that the pragmatic considerations
and the policy considerations should override
that? So again, I would put us in the complete
relief bucket. Mr. Foggenbaum, I'll put on my
amici hat in answering that question. I understand
General Sauer's proposal to be that we channel
all of this through Rule 23. I think that is
a historical one. It's inconsistent with the
Rules Committee's understanding of other rules.
If you look at Rule 23, Rule 65, and Rule 71
together, they establish that Rule 23 is not
the channeling mechanism that the government's
suggesting. I'll start with Rule 71 because it's
responsive justice to bear it to your question.
question earlier about whether non -parties can
enforce orders. Rule 71 explicitly contemplates
that and says if a non -party receives relief,
they are entitled to enforce it. I'd point also
to Rule 65, the preliminary injunction rule.
In 2017, the Rules Committee considered a proposal
from Professor Bray to amend the rule to prohibit
relief to non -parties. The committee rejected
that proposal because it found that it ran afoul
of the rules -enabling And then I'd end by pointing
to Rule 23 itself, which says nothing about it
being a channeling mechanism. In Prince B. V.
Scarborough, this court said we don't treat the
rules as excluding background equitable practices.
And here, Rule 23 doesn't even contemplate preliminary
relief. It's focused on permanent injunctive
relief. And I think that's because, as we've
been discussing, it's very difficult to get class
certification and time to have preliminary relief.
So you're doing putative class relief. relief,
which is the exact same thing as what's happening
here. Well, why can't you get putative class
relief in a preliminary injunction or TRO posture?
You mean, sorry, in the type of content? Get
relief for a putative class in a TRO or PI posture.
I certainly think you can. The court did that
recently in AARP. My point is, when the court
does that, it's relying on the equitable authority
it has to enter that sort of relief, not on the
Rule 23 mechanism, because the class isn't binding
until after certification, until after final
judgment. If that mechanism is available, whether
one way or another, doesn't that solve a large
part of the problem in a way that complies with
the the rules, the problems with universal injunctions
that have been identified by administrations
of both parties. Go through rule 23 and do what's
needed there, and people are bound then, so that's
a wrinkle. But why doesn't that just solve the
problem? Right, so they're not going to be bound
until after you get past class certification,
so we're talking about you. I understand that.
And for that reason, I would go to Justice Alito's
point earlier, that all you're doing is taking
the non -party injunctions that are happening
now outside of Rule 23 and shoving them into
Rule 23. It doesn't address the forum selection
concerns. It doesn't address the concerns about
the emergency docket. It complies with the rules.
I mean, the law, we care about technicalities,
and this may all be a technicality. But it seems
to me the technicality of Rule 23 and the history
of that provides, 23b2 provides a mechanism to
do what's needed here in terms of getting relief
to people. And if you have PIs available for
putative classes, that seems to solve the. solve
the issue for preliminary relief and the timing
issue as well. So B2 provides for permanent injunctive
relief. It does not provide for preliminary injunctive
relief. Again, rule 23 does not purport to be
the exclusive channeling mechanism. And as I
said, the rules committee doesn't think it did.
So it would be this court kind of projecting
its own policy decision to treat rule 23 that
way. And I would come back again to Justice Alito's
concerns. That is not actually addressing the
court's emergency docket. It's just now we're
slapping a label of class certification. So I
would, and I'll make a second point on that and
then say what I think the better. what our way
of approaching the problem is, which is I think
the General Sauer and I are in agreement that
the Venn diagram of cases that are appropriate
for class certification and where injunctive
relief I think would be appropriate is not coterminous.
I think we could pursue successfully class certification
here. I heard General Sauer to disagree, and
I think it's because they're just different circumstances.
If you look at the class certification requirements,
commonality, typicality, they were actually added
to Rule 23 in 1966. to address the expansion
of class certification to include damages suits.
That makes sense there. But those were never
requirements prior to 1966. Ms. Corcoran, on
the class certification point you've been developing,
one response might be, and I just want to get
your reaction to it, that by proceeding through
the class mechanism, even a putative class mechanism,
a court is making a preliminary assessment about
who are the parties going to be before it. and
issuing interim relief so that it preserves its
jurisdiction to issue final relief with respect
to those parties. And that's very different,
the argument would go, than simply saying everybody
everywhere, nationwide, universally, or perhaps
cosmically, stands to benefit from this decision
without ever having to suffer being bound by
it. So I would say, again, that's an ahistorical
approach. You haven't had that sort of rule 23
train. Well, assume for the moment that we read
bills of peace, which I understand to be your
best set of cases, to be prototypical of what
is now rule 23. Right. And so the bills of peace
and kind of going through, as Mr. Foggenbaum
was talking about, equity rule 48 and then 38.
In none of those circumstances were we doing
this ex ante class certification determination.
So the modern class action device actually looks
quite different than it was for representative
suits historically. So it would be putting on
an ahistorical constraint. I appreciate that
argument, okay, but now we're haggling over the
history, which we have to do, I accept. But if
bills of peace are understood, again, accept
the premise, to be... predecessors of Rule 23,
then respond to the point that there is something
fundamentally different about a preliminary injunction
to a putative class you've found is likely to
be certified and likely to succeed on the merits
in order to preserve that court's jurisdiction
toward ultimate relief to those parties before
it, and that that's categorically different.
than a universal injunction. So starting with
the presumption that was different about the
Bills of Peace is that they were binding, I think
sometimes it's not clear always, at the end when
they were getting to final judgment. I would
go back to Grupo Mexicano to Justice Barrett's
point, although that was a high watermark of
this equitable originalism. The way the court
articulated the test focused on 1789, but the
actual analysis in Grupo Mexicano focused on
1890 through 1942. And what the court found there
is that there were numerous cases expressly rejecting
the Mareva injunction. And that was confirmed
in the 1970s when England adopted and said, no,
we've never done this before. We are in an entirely
different world here. One, the cases that Justice
Sotomayor laid out earlier all come from between
1890 and 1942. And they suggest that non -party
relief was provided for outside of the class
action context. But the fact that we have, I
think, this time. I studied scholars in this
rigorous debate about what the bills of peace
meant, what the railroad cases meant. I think
shows that this is very different in Grupo Mexicano.
And for the court to kind of delve into that
and adopt the categorical rule that the government
is suggesting, I think is certainly an overcorrection.
It's a hornet's nest on Article 3, right? It
calls into concern APA class action, a whole
sort of things. I would suggest that the court
instead focus on providing limiting principles.
within the confines of the Nikin factors of the
window. Is there a practical problem? So I want
to put aside the history, and I take your points
on that. And why you don't think rule 23 fits,
I take your point on that. But if putative class
actions and preliminary relief are an option.
What, then, is the practical problem you see
as distinct from the current regime? Well, if
General Sauer is right in that there are class
certification problems here, then in this particular
case, you're going to have thousands of - Okay,
I think you would be arguing that the class should
be certified here. Right, but I'm saying the
government is just - So more generally, taking
it out of this case, if you could, do you see
practical problems? Yeah, it would eliminate
the associational standing trade cases, you know,
the cases brought by the Chamber of Commerce,
the NRA, other associations that aren't suitable
for class certification. I think also the questions,
again... Can you explain that? Well, they wouldn't...
So if we were to seek cert, it would be on behalf
of our individual plaintiffs, you know, for the
same reason that the government would have difficulty
seeking class certification. The state government,
I think... associations are not necessarily a
good fit for that framework. That's also not
solving the court's problem. It's just channeling
the problems through a different mechanism. I
don't think that can be solved, just to be honest.
But that's a separate issue from what the right
rule is as to how things transpire in the district
courts. Could I perhaps try to solve it in a
different way? What I would suggest, we spent
some time trying to catalog the cases in which
this court has approved universal injunctive
relief and the cases in which it's rejected it
with the aim of giving the court maybe a suggestion
on how it might affirmatively articulate some
limiting principles such that you would not be
getting the injunctions that the court thinks
are inappropriate, but the ones that the court
has approved would still be able to proceed.
Again, that's not the categorical rule that the
government is suggesting. I think roughly what
the court has been doing is saying that universal
injunctions are appropriate only in facial challenges
involving fundamental constitutional rights,
where there are real concerns about whether the
legal and practical availability of relief to
similarly situated parties who are also going
to experience irreparable harm. I think that
maybe explains AARP. Most recently, IRAP would
fall into that category. Chrysophis, the New
York eviction case, would fall in that category.
On the other side of the ledger, the court seems
to disapprove quite a bit of nationwide injunctions
involving discretionary benefits. So that's some
of the recent ones that you have undone or stayed.
So I think what the court could do is kind of
identifying limiting principles that would provide
guidance to the lower courts on when it's appropriate
to issue these injunctions. A natural home for
that is the public interest prong of the winter
test, right? If you're going to issue an injunction
that's going to have an impact on other peoples,
you need to be doing a really muscular public
interest assessment before doing that. So that's
what I would urge the court. Ms. Corcoran, are
you pushing back on the class certification idea?
Because you're worried that there are cases where
there will be no certification, but in which
broad relief is, in fact, appropriate, so that
the two categories don't line up. why you're
pushing back, why are you worried about that?
What are the cases you're worried won't line
up properly in that way? I mean, the government
has suggested it's going to argue that here.
Again, I think the commonality, so thinking about
questions like common injury, make a lot of sense
when you're talking about class -wide damages,
less so when you're talking about a facial challenge
to a constitutional violation. So I think it's
a bit of a mismatch. And again, it's not what
Rule 23 was ever intended to do. solve any of
the court's policy problems. So I think it's
a. you know, it's a lose, lose, lose proposal
that the government is offering. I'm a little
concerned that I have focused a lot on my amici
hat and haven't actually explained to the court
why the injunction is necessary for complete
relief here. But I don't want to pivot too quickly,
but I want to make sure I address our primary
argument as well. Tell us why it's necessary
for complete relief. Thank you. For two reasons.
The first is that a plaintiff's specific injunction
would not be administratively workable, I'll
explain that in a second, but I want to note
the second one is that even if it were workable,
it would require the association members to identify
and disclose to the government an association
that puts them at great risk. of adverse consequences,
detention, or deportation, even if they're here
lawfully. And so it's not complete relief to
require the plaintiffs to make dangerous disclosures
in order to claim the constitutional right. And
then maybe I'll pivot back to the workability,
unless there are questions about that. So, oh,
sorry. Very briefly, and then we'll move on to
the next stage of our questioning. The government's
workability argument with respect to the individual
plaintiffs, the private plaintiffs is wholly
tethered to its argument that the injunction
should be limited to the 16 named plaintiffs.
It has offered no argument for how it would administer.
how state and local agencies could administer
an injunction that was narrowed to the ASAP and
CASA members. So I think that's probably the
end of the road. Mr. Fagenbaum made the point
that they can always go back to the district
court and ask for the injunction to be dissolved
if they present some sort of workable proposal.
They haven't, and I don't think they can. I don't
want to talk for too long, but I... If anyone
is interested, I'm happy to answer questions
about why I think it's unworkable. Oh, I'm sure
someone will be. Thank you, though, counsel.
Justice Thomas? Justice Alito? Should we decide
or make up our minds on the underlying birthright,
citizenship question without briefing and argument
and deliberation? I think that we would be very
eager to do supplemental briefing on that. General
Sauer noted that none of the parties had asked
for cert before judgment. We couldn't because
we keep winning. I will ask right now for cert
before judgment. What's the answer to my question?
Yes, I think you can, Grant, for judgment. No,
that wasn't my question. But I will say, I think
- All right, that's all right. You don't want
to answer it that small. No, no, I will. If I
could give an answer, which is that I think it's
very difficult, if not impossible, for the court
to do a meaningful in -can analysis without taking
into account the fact that the government is
asking the court to allow it to ignore this court's
precedent, to ignore a duly enacted statute,
and to upend 100 years of executive branch practice.
So I think, although the government has attempted
to separate them that really the merits are embedded
in the income factors. I find it hard to understand
how a district court in looking at a preliminary
injunction under the winter factors where we
said that the likelihood of success on the merits
is the keystone. How we could separate that out
and say The keystone of whether you're entitled
to universal injunction is the only merits question,
because the other factors are not eliminated
by winter. You have to balance the equities,
and you can't balance the equities without the
merits, correct? I think that's right. I think
also irreparable harm. is going to be very difficult
for the government to prove if it's not contesting
that the, or not contesting, or at least not
defending the constitutionality of the order
because the government has no interest in enforcing
an unconstitutional order. I'd also note there's
a quote from Professor Bray in Justice Gorsuch's
Texas Concurrence, and it's, in equity it all
connects. The broader and deeper the relief the
plaintiff seeks, the stronger the plaintiff's
story has to be. So I think there really is kind
of an equitable consideration here of the merits
as well. Now, the state has explained why it
can't pursue class actions. So it really, it
admits it's limited to whether it's entitled
to complete relief. But how about your organization?
You sort of answered it, but I wanted to pin
you down on that. Do you believe that associational
organizations can seek Class action? I believe
our individual plaintiffs certainly can. Yes,
there's no question. I am nervous about the government's
suggestion that it's going to oppose our class
certification motion if we were to file one.
Class certification can be very discovery intensive.
It could be the sort of thing that really delays
our plaintiffs from getting the relief that they
seek. Thank you. Mrs. Kagan? I guess what I worry
about here, Ms. Corcoran, is that this case is
very different. from a lot of our nationwide
injunction cases in which many of us have expressed
frustration at the way district courts are doing
their business. The typical way in which that
frustration emerges is that legal questions are
hard and they're complicated and different courts
would decide them differently. Instead, because
of the forum selection process, a party goes
to one place You know, in the first Trump administration,
it was all done in San Francisco. And then in
the next administration, it was all done in Texas.
And there is a big problem that is created by
that mechanism. And that leads to the questions
to you and to General Feigenbaum, which is like,
you know, your third buckets, which are, oh,
if it's like super important or if it's quintessentially
national or whatever the way you know, is not
going to solve our problem for that set of cases,
which is not this case. This case, what's problematic
about it is that the courts keep deciding the
same way. And nobody really thinks that the lower
courts are going to do anything different. And,
you know, for that reason, it does present the
catch -me -if -you -can problem that Justice
Jackson said and the problem of how are we ever
going to get a case here. But our general case
is not like that. And I just want you to sort
of comment on that. Yeah. I'd say first that
the government's proposal of channeling through
Rule 23 does nothing to solve anything you just
described. I think the limiting principles that
I was proposing, which again was just me trying
to reflect back to the court the through lines
that it's been identifying, are sufficiently
concrete that if this court were to articulate
them, it would cut back on the number of universal
injunctions. Is it a facial challenge? Does it
involve a fundamental constitution? Those are
concrete questions. And then I would point to
Justice Kavanaugh's PO concurrence. I think vertical
stare decisis is going to be important here.
When courts enter these sorts of injunctions,
they are immediately appealable to the courts
of appeals. So if there are any district courts
that are kind of getting over their skis on these,
it's correctable by the courts of appeals. Justice
Gorsuch? Justice Kavanaugh? Concerns about this
court being involved, because I'm not sure I
really understand that, when a president or an
administration enacts some major new rule, the
question ultimately, and it's legally challenged,
ultimately it'll be a year or two from now it'll
get here and we'll make a final judgment. But
the interim status of that rule, as this case
illustrates, and many others, vaccine mandate,
eviction moratorium, go down the list. They're
really important whether they're in effect for
that year or two. And I guess I don't know why
you should be concerned or we should be concerned
about this court playing a role in this. Oh,
I don't have concerns about that. I was responding
to General Sauer's point that this has become
pathological in the number of universal injunctions
that are making its way onto the court's emergency
docket. Just because there are more significant
executive actions over the last Three decades.
I certainly agree with that. And I, you know,
that are that are, you know, at the moment, Loper,
Brighton or West Virginia versus EPA are arguably
some part of that story as well. I agree completely.
And to answer the question you asked General
Sauer earlier about why have we seen this proliferation
of these universal injunctions, I think it's
directly I would say first that the government,
I think, pretty dramatically overstates them.
It's double counting TROs and PIs and the same
case. But If you look at the number of executive
actions in the first six weeks of this administration,
it's more than any other president issued in
a year dating back to 1951 during the Korean
War. But I don't want to sing. I mean, it's going
back. It's bipartisan phenomenon, completely
bipartisan, and completely, in my view, well
-intentioned, because presidents want to get
things done. And I get that. Yeah, I agree with
that. I think it's directly correlated to the
number of unilateral executive actions we've
seen over the last few years. I just have one
question. You said that you're in bucket one,
so you felt like you were playing kind of the
amici role. I understand why you might think
you're in bucket one for the associational point.
Do you think you're in bucket one for individual
plaintiffs? So I don't know that I would extract
them because the... Well, named plaintiffs. Let's
imagine you had individual plaintiffs that are
named members of the association. So I guess
what I'm saying is let's take the association
outside of it and let's just say that we're talking
about individual plaintiffs. Would you put that
in bucket one? So there I would go to the second
injury I had identified earlier, which is if
you're asking... Our individual plaintiffs have
pseudo names right now. That would be contemplating
a scenario where they would have to identify
themselves to the federal government and say...
I am the plaintiff in this case, at which point
they are immediately vulnerable to deportation.
Even again, if they're here lawfully, we've seen
the government removing visa holders and asylum
seekers. Mrs. Jackson? So I think I understand
your argument. There's just one little piece
of it that is confusing to me, and I hope you
can clarify. So if we view the relief in this
case and others like it to be a judgment ordering
the defendant not to do something that the court
has found to be likely, because we're in the
interim stage, unlawful, are non -parties in
that situation actually getting relief, or are
they just incidental beneficiaries of an order
requiring the government not to do this harmful
thing? I thought it was the latter. And that
just, you know, the government is told by the
court, don't do X. And of course, anybody who
would have been harmed by the government doing
X is benefited by that. But they're not really,
I thought, getting relief. But here's where I
get confused, because I thought they're not getting
relief because they can't come into court independently
and seek a contempt ruling if the government
continues to do the thing. They weren't parties.
They don't have the judgment. That's what differentiates
them from, say, the class action people or the
plaintiff people. The reason why we have the
rules for class action, et cetera, is because
at the end of the day, the members of the class
are getting a judgment that they can then use
to enforce this obligation as against the government,
whereas the people in the universal injunction
world are just benefiting if the government actually
you know, follows the order. Yeah, I think that
what you're articulating is consistent with a
long history of precedent and practice. I mean,
it's the classic REM case, right? Making a declaration
about property. I think Professor Fander's amicus
brief is really helpful on that. He talks about
the patent laws. And I think you can see that
same instinct in the court's cases that Justice
Sotomayor was talking about earlier, right? The
railroad rates, Barnett, Pierce v. Society of
Sisters. And I guess my point is that's why we
don't need because we're actually doing conceptually
a different thing. We're not trying to give all
these people, everyone in the world, some sort
of enforceable right as against the government.
We are simply just doing what courts do, I thought,
which is telling the defendant over whom they
have personal jurisdiction that they have to
stop doing something unlawful. And of course,
that benefits people. But the thing that confuses
me about your argument is that you alluded at
the beginning to Rule 71 and suggested that the
non -parties could somehow enforce. this universal
injunction. I didn't understand. I think rule
71 contemplates that. It would be very onerous.
I mean, I think when General Sauer, he was kind
of contemplating the idea that, you know, tens
of thousands of people were going to have to
come to court individually. Right. But I think
if you're right about that, it undermines the
point that I'm making because it puts people
in the same place as the class action folks and
the parties in a way that that I think raises
legitimate concerns that some of my colleagues
have. put forward with respect to universal injunctions.
So the thing that distinguishes them is that
universal injunctions are not benefiting or giving
relief to non -parties in any meaningful sense
is my theory. I think both have always been true,
and maybe they're in tension each other, but
Rule 71 originated in Equity Rule X, which was
enacted or was put in place in 1842, which had
this same idea of quite apart from representative
suits, non -parties enforcing orders that provided
them with relief. Although maybe this, as I'm
talking, I think maybe I'm talking about under
Rule 71, orders that provide relief. But let
me just... You're talking about injunctions.
What I'm asking you is, in this very case, if
we have a series of plaintiffs that have actually
named people, and they get an injunction, as
the government says, against... Sorry, if they
get a universal injunction, what they call a
universal injunction, the government cannot enforce
this executive order. Can someone who is not
a non -plaintiff come into court to enforce that
if the government... violates it. So I'm hesitant
to say no, both because Rule 71 exists and those
aren't my clients, are my plaintiffs, and we
needed this universal injunction. Yes, I understand.
I'm just trying to figure this out. But I think
both what you said is true. If we look at cases
like Barnett and Pierce and we go all the way
back, I think Justice Story's dissent that he
signed onto in Cherokee Nation v. Georgia is
terrific on this point. He was the preeminent
scholar on equitable remedies, and he certainly
thought the way that you're articulating, we
are going to make a declaration about whether
Georgia can enforce its laws on Cherokee Nation
property. And that is just a declaration of the
law that will have an impact on everyone. But
I'm hesitant to say that Rule 71 doesn't have
any application. Thank you. Thank you, counsel.
Rebuttal, General Sauer. Thank you, Mr. Chief
Justice. The original meaning of the Citizenship
Clause extended citizenship to the children of
former slaves, not to people who are unlawfully
or temporarily present in the United States.
The merits arguments we are presenting to the
lower courts are compelling. We cite, for example,
a host of 19th century authorities that point
out that domicile was the touchstone of non -citizens
having their offspring treated as citizens in
that context. That is consistent with Wong Kim
Ark as well as with the slaughterhouse cases
in Elk against Wilkins and the suggestion that
our position on the merits is weak is profoundly
mistaken. And that kind of snap judgment on the
merits that was presented in the lower courts
is exactly the problem with the issue of racing
to issue these nationwide injunctions. The Chief
Justice correctly pointed out that this court,
if it wishes to address the merits expeditiously,
has many tools to do so. Cert before judgment
is one possible tool. There are also others.
But this court should also address the scope
of remedy, the remedial question that's presented
in the application. That is an extremely urgent
question. And one of the reasons it's an extremely
urgent question is the limiting principles that
my friends on the other side have been offering
have all proven to be completely ineffective
to slowing the essentially slow flood or cascade
of universal injunctions that we see in these
cases. The states here have a unique issue that
hasn't come up yet, but for the reasons we state
in our application, they lack third party standing
very clearly under cases like Murthy and Heyland
and Katzenbach and Kowalski. So no injunction
really should run to the states in this particular
case anyway. And most fundamentally, the vision
of the district courts that's reflected in the
issuance of these nationwide injunctions is a
vision of them as a roving commission to correct
every legal wrong that they can consider and
to exercise general legal oversight over the
executive branch, which is what this court rejected
in TransUnion. And for those reasons, we ask
the court to grant the applications.