by Ian Millhiser
On Monday, the Supreme Court did something that’s become quite familiar in the Trump age: It reinstated a harsh new immigration policy that had been blocked by lower courts. This particular policy, known as the “public charge” rule, makes it easier for the United States to exclude lower-income immigrants.
The court did not explain its Department of Homeland Security v. New York decision, which is temporary — it lasts until the case makes its way through the appeals process and, most likely, to the justices’ decision on its merits. Monday’s order was split 5-4 along partisan lines.
Though the majority did not explain its decision, Justice Neil Gorsuch did pen a concurring opinion to which it is worth paying attention. It would limit the power of lower court judges to issue broad, nationwide orders suspending a federal policy. That’s what initially happened in the New York case, when a federal judge held that the public charge rule could not be enforced anywhere in the country.
In the short term, Gorsuch’s approach would obviously be an enormous boon to President Trump, as the Trump administration is behind many of the policies that are currently being blocked by lower courts.
But Democrats would actually do well to listen to Gorsuch. In the long run, they have far more to gain than the GOP from Gorsuch’s approach, which would strip liberals of a tool they’ve used to challenge Trump’s policies — but Democratic presidents have much more to fear from a too-aggressive judiciary than Republicans.
Nationwide injunctions, explained
Gorsuch’s opinion concerns what are sometimes referred to as “nationwide” or “universal” injunctions. An “injunction” is a court order compelling a party to behave — or, more often, to not behave — in a particular way. The plaintiffs in New York sought an injunction prohibiting the federal government from enforcing the new public charge rule.
One issue that often arises when a court issues an injunction is just how broadly that injunction should sweep. In New York, a lower court issued a nationwide injunction against the public charge rule, meaning the government may not enforce the rule against anyone anywhere, rather than issuing a more limited injunction that benefits only certain parties. Gorsuch argues that sweeping national injunctions are inappropriate.
Injunctions, Gorsuch writes, are “meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit.” Thus, the appropriate remedy when a court issues an injunction against a particular policy is to prevent that policy from being enforced against the plaintiffs — and that’s it.
Gorsuch’s case against nationwide injunction echoes remarks by Attorney General William Barr, who claimed in a speech last May that federal courts issued more nationwide injunctions against the Trump administration than they issued in the entire 20th century.
It is difficult to confirm whether Barr’s claim is accurate, in part because scholars disagree around the margins about which orders qualify as “nationwide injunctions.” Nevertheless, there is at least some scholarly support for Barr’s claim that the rate of such injunctions has increased. A particularly influential paper by Notre Dame Law School professor Samuel Bray argues that “through the middle of the 20th century, there do not appear to have been any national injunctions.”
No comments:
Post a Comment