Margot Cleveland of the Federalist highlights a significant task for the U.S. Justice Department’s top litigator.
U.S. Solicitor General D. John Sauer will appear before the Supreme Court on Thursday to argue against the nationwide injunctions entered by the lower courts in three birthright citizenship cases. As I detailed Tuesday, the Trump Administration appears poised to score a win from the Supreme Court given that five justices — in various concurrences and/or dissents — have criticized nationwide injunctions.
Such a victory will be narrow, however, because the issue before the high court solely concerns the breadth of the remedy, namely whether the injunction should apply on a nationwide basis or be limited to the individual plaintiffs: The question of the constitutionality of President Trump’s birthright citizenship executive order will await another day.
The Supreme Court’s eventual decision on the propriety of nationwide injunctions in the consolidated cases being argued on Thursday will also have a limited reach because the birthright citizenship cases do not involve the Administrative Procedure Act. That statute expressly authorizes federal courts to “hold unlawful and set aside agency action” that are arbitrary and capricious or contrary to law.
“Such ‘setting aside’ of an agency action will have a nationwide effect, much like a nationwide injunction, but the propriety of such an order differs, not in degree, but in kind, from the nationwide injunctions before the Supreme Court in the birthright cases.” And so, a holding in the birthright cases striking the nationwide reach of the injunctions will do nothing to prevent their continued use in cases brought under the APA.
When asked about this concern, a Department of Justice official told The Federalist that when courts have issued nationwide injunctions in cases brought under APA, the Trump Administration has challenged those injunctions on the merits — implying that the DOJ’s concern is not the scope of the remedy in the APA cases, but the underlying decisions.
