Over the course of George W. Bush’s entire presidency, 12 nationwide injunctions were issued by federal judges, halting or preventing the enforcement of executive branch policies. During Barack Obama and Joe Biden’s presidencies, 19 and 28 nationwide injunctions were issued, respectively.
According to the Congressional Research Service, the first Trump administration was slapped with 86 nationwide injunctions.
Meddlesome U.S. district court judges proved more than willing this year to oblige liberal litigants in arresting the MAGA agenda by slapping the second Trump administration with scores of additional universal injunctions — 25 in Trump’s first 100 days back in office and dozens more in subsequent months.
The U.S. Supreme Court finally put its foot down on June 27, determining in Trump v. CASA Inc. that the nationwide injunctions weaponized against the Trump administration by district court judges “likely exceed the equitable authority that Congress has given to federal courts.”
It didn’t take long — just hours, actually — for liberal litigants to seize upon a potential alternative means of achieving similar results, and once again, largely Democrat-appointed district court judges appear ready to deliver.
Dr. John C. Eastman, founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, told Blaze News that the new undemocratic game played by liberal activists and sympathetic U.S. district court judges will likely prompt further action from the U.S. Supreme Court.
While Eastman reckons the Trump administration will ultimately prevail — and a White House official told Blaze News that the administration is prepared for “all possible legal options” — its challengers will nevertheless attempt in the meantime to deny or postpone what Americans voted for in November.
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In CASA Inc., the Supreme Court indicated that the nationwide injunctions “likely exceed the equitable authority that Congress has given to federal courts.”
Justice Brett Kavanaugh recognized in his concurring opinion, however, that district courts may still be able to “grant or deny the functional equivalent of a universal injunction — for example, by granting or denying a preliminary injunction to a putative nationwide class under Rule 23(b)(2).”
‘They’ve got to pay close attention to the guardrails that go along with the rule 23 class certification process.’
Hours after the high court’s ruling, CASA, the immigrant advocacy group involved in the litigation, filed a motion requesting that the U.S. District Court for the District of Maryland certify as a class all persons born in the U.S. on or after Feb. 19 who would be ineligible for birthright citizenship under President Donald Trump’s Executive Order 14160 and asked in an amended complaint that the court issue an injunction against the order on behalf of this supposed class.
In a corresponding request for a preliminary injunction, CASA noted that the “Supreme Court’s recent stay opinion acknowledges that courts may award injunctive relief beyond the named parties when the case is brought as a class action.”
CASA referred to both Kavanaugh’s concurring opinion and Justice Sonia Sotomayor’s dissenting opinion, in which she noted that “the majority leaves untouched one important tool to provide broad relief to individuals subject to lawless Government conduct: Rule 23(b)(2) class actions for injunctive relief.”
“Justices Alito and Kavanaugh, in their concurring opinions, both tried to send a warning sign to the lower courts that this shouldn’t be an automatic brand of class certification; they’ve got to pay close attention to the guardrails that go along with the Rule 23 class certification process,” said Eastman. “One of those is commonality. You know, the members of the class have to have common issues, and with the preliminary injunction, that’s just not true.”
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The government punched holes through CASA’s request on Monday, and among the issues it raised was precisely this: The plaintiffs cannot meet the requirements of Rule 23 because of a lack of commonality — “three plaintiffs have a pending asylum application; another is present in the United States on a tourist visa; another has TPS status; another is on a student visa; another is on an H-1B visa; and another fails to articulate her immigration status.”
Eastman, a former law clerk to Supreme Court Justice Clarence Thomas, stressed further that one of the key requirements for a preliminary injunction is irreparable harm.
It is certainly a giant leap to say all parties in the class are at risk of irreparable harm.
“If you stand back and ask yourself, ‘What’s the irreparable injury here?’ it’s hard to find one,” said Eastman. “If a baby is born and it’s a year or two before the litigation is resolved, and in the meantime they’re not deemed a citizen, but if Trump’s executive order is ruled illegal or unconstitutional, then they’re retroactively deemed a citizen, what’s the harm? Okay, they’ve lost some financial benefits as a citizen in the meantime. Well, financial benefits are by definition not irreparable harm because they can all be compensated after the fact with interest.”
“So the only way you get to irreparable harm is if, say, the parents are members of MS-13 and they’re going to be deported and the child will be deported with them because he’s not a citizen — then that could be an irreparable harm. But that’s very idiosyncratic, tied to each individual,” stressed Eastman. “There’s no commonality.”
‘The more they can throw barriers in the way of Trump accomplishing things, the more likely it is that they won’t have as much to rebuild after they ride it out.’
Regardless of whether CASA succeeds in this attempt, it’s clear that others will lean on class actions as an alternative. It has already begun.
The American Civil Liberties Union challenged Trump’s asylum ban in February on behalf of three radical activist groups and a handful of foreigners denied asylum.
Last week, the Obama judge overseeing the resulting case, Refugee and Immigrant Center for Education and Legal Services v. Noem, certified all border-jumping asylum-seekers “who are now or will be present in the United States” as a protected class, then barred the administration from expelling members of the class — a ruling the government quickly appealed.
Lee Gelernt, an attorney with the ACLU who brought the case, told Reuters, “I think there’s going to be a lot more class actions.”
A senior White House official told Blaze News that in the wake of the CASA decision, “the Trump administration pushed aggressively against the nationwide injunctions by filing supplemental filings in the appellate courts and in the district courts,” requesting that the courts narrow the scope of the injunctions to the parties before it. As this is sure to prompt desperation on the part of the plaintiffs, the official added, “Of course, the parties involved are going to try and seek the biggest sort of net they can by filing class actions.”
The official noted, however, an inherent weakness in this strategy: “Class actions take a very long time — classes take a long time to certify.”
“So they’re going to be pushing, but that’s not a standard process,” continued the official. “Justice Alito discussed the dangers of sort of trying to create a nationwide injunction via class action, and so that’s not necessarily going to be a solution because the Supreme Court will push back to the extent that it’s not covering the affected party.”
Eastman anticipates another Supreme Court intervention.
He told Blaze News that the lower-court judges are likely going to ignore Alito’s warning — not to view the decision in CASA “as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23” — and “we’ll be back up to the Supreme Court, now with just the same issue but under a different name: not a nationwide injunction but a nationwide class injunction. It’s kind of a game of whack-a-mole, and it’s really causing great harm to the rule of law.”
Eastman outlined a likely course that will prompt action from the Supreme Court:
What I expect we’ll see in short order is a nationwide class action certified and then an injunction issued to every member of the class, and the Department of Justice will seek a stay of that. The court of appeals will deny it, and then [the government] will seek an emergency stay in the Supreme Court.
When asked about the likelihood of this going back to the Supreme Court, the senior White House official said, “It totally could. Obviously, we would hope not for that to happen. But you know, Justice Alito made clear to litigants that they shouldn’t abuse class certification in order to circumvent this CASA decision, so it’s kind of indicating that the Supreme Court would not take lightly if district courts were doing the same thing that they were just doing, but it’s totally possible.”
If the class action strategy does become a pattern, the senior White House official indicated the Trump administration is apparently “ready to go immediately. We’re prepared for every outcome.”
Concerning the broader campaign to neutralize the Trump agenda in the courts, Eastman stressed to Blaze News that the American left doesn’t “have the White House, they don’t have either branch of Congress, they don’t have the Supreme Court, but they do have a lot of activist judges that were appointed on the lower courts.”
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“They’re using that base of power to thwart the agenda of the president that the American people overwhelmingly elected,” continued Eastman. “What’s most interesting is they claim that Trump is undermining democracy when they are trying to thwart the results of the last democratic election.”
While Eastman figures the Trump administration will come out on top in court, these efforts by activist judges and leftist litigants may nevertheless delay implementation of the president’s agenda long enough for the left to recapture power and neutralize his executive actions by other means.
“They hope to be able to slow it down enough that they run out the clock, at least until after the midterm elections, with their hope that they will then control one or both branches of Congress to be able to stop them legislatively rather than judicially — but at the very least try and run the clock out all the way through the next term,” said Eastman.
“Their view is that millions of people that work in the federal government are so overwhelmingly on the left-of-center side of the political aisle that once they get past the four years of Trump, it’ll be back to business as usual, and they just need to ride it out,” he continued. “The more they can throw barriers in the way of Trump accomplishing things, the more likely it is that they won’t have as much to rebuild after they ride it out.”
The White House official noted that “if the judicial branch doesn’t collect itself and get better, then it’s going to be the detriment of the American people who wanted these policies implemented.”
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National injunction, Injunction, Class certification, Class action, Class action lawsuit, Maga, Donald trump, District judges, Politics
