There is a gap in the constitution of the United States where the rule of law used to be.
That there is a gap has been set out by the majority of the US Supreme Court in the recent judgment of Trump v Casa, where it was held that US federal district courts are not able to issue universal injunctions that apply more widely than to just the parties to the case before the court.
In the majority opinion, Justice Amy Coney Barrett stated that the judiciary does not have “unbridled authority” to ensure that the executive follows the law. Her view is that the executive can do unlawful things that the courts cannot then do anything to prevent. This is because, she says, there is no universal jurisdiction where the courts can issue orders to ensure that the federal government complies with the constitution or federal law generally.
The reason for this gap, Justice Barrett and the majority insist, is that the federal courts themselves only have powers allocated to them by the constitution and federal law. A court cannot thereby act outside of the powers provided by the empowering law. If a federal court purports to do so even when faced by government illegality, then the court is acting unlawfully. As Justice Barrett puts it, “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”
This means that even where the federal government has acted unlawfully, there are now situations where a court can do nothing about it. This statement is not some liberal or progressive take or caricature. This is the considered, open position of the US Supreme Court. Just as last year the same court decided to widen presidential immunity from prosecution, it has now held that there are other ways in which the law cannot bind the federal government.
This is a subtle, almost artful move by the Supreme Court justices. While many onlookers were worried about the federal government ignoring court orders, the highest court has arranged it so that many of the most irksome court orders for the government cannot be made in the first place.
This determination, of course, suits the US government. Even now, few officials and their lawyers want to say aloud that they wish to break court orders. For them, it is better for the problem to go away by another route.
The majority opinion, however, reads oddly to an English lawyer. The supposed basis for the judgment is that such injunctions are outside the scope of the Judiciary Act of 1789, which provided for federal courts to issue what lawyers call equitable remedies. These remedies enable courts to ensure that things are done which should be done, and things are not done which should not be done.
These orders are often in the form of temporary injunctions which, according to classic legal theory, attach themselves to the conscience of the person affected until a court can finally decide the relevant legal issue. The orders thereby “hold the ring”, so that justice delayed is not justice denied.
In England, the courts can issue all sorts of injunctions as a situation requires, both against parties to a case and against third parties who are not part of the litigation. Third party injunctions are commonplace. As recently as 2023, the United Kingdom’s Supreme Court held that injunctions could also be made against persons unknown, on a “contra mundum”—against the world—basis.
None of these uses of equitable remedies are unusual to an English lawyer, for this is how equity works and is supposed to work. The courts can issue equitable remedies to ensure that justice is done. There is a very high threshold for imposing orders on third parties—whose interests are protected. But such injunctions against non-parties are possible, and indeed often necessary.
For Justice Barrett and the US Supreme Court majority, however, the idea of equity is certainly not as flexible, even though they purport to base their judgment on the shared roots of American and English law. If an equitable remedy cannot be shown to have existed in 1789, they say, then it cannot exist at all. Equity is thereby frozen as it existed even before Jane Austen wrote of entails and inheritances and Charles Dickens portrayed Jarndyce v Jarndyce.
But the facts of Trump v Casa make the court’s decision even more unfortunate. The case concerns the Fourteenth Amendment to the US constitution, which includes the provision that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The words “and subject to the jurisdiction thereof” describe those under US jurisdiction who are not US citizens. Historically, this phrase has been interpreted narrowly. The Supreme Court itself said the phrase worked only to exclude as US citizens “children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State […] with the single additional exception of children of members of the [native American] tribes owing direct allegiance to their several tribes”.
President Trump, however, issued an executive order on his first day back in office which sought to widen the definition to exclude as citizens persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
Of course, such children—babies—would still be subject to US jurisdiction, not least as Immigration and Customs Enforcement (ICE) and various other government agencies would want to exercise power over them. The executive order is a nonsense.
And in practice, court after court that has dealt with the executive order has held it to be unconstitutional. This is no surprise. As Justice Sotomayor writes in her solid and compelling dissenting opinion: “Few constitutional questions can be answered by resort to the text of the Constitution alone, but this is one. The Fourteenth Amendment guarantees birthright citizenship.”
The federal government knows that Trump’s executive order is unconstitutional, but it does not want the Supreme Court to say this. So it has adopted the cynical tactic of not actually appealing the substantive decisions, but procedural ones.
Universal injunctions were issued by the federal courts against the order to prevent the federal government from enforcing it even against families who are not party to any legal challenge. The US government, however, wants to enforce it against any families and children who are not party to a legal case.
Justice Sotomayor describes the practical position in these harrowing terms: “Every court to evaluate the Order has deemed it patently unconstitutional and, for that reason, has enjoined the Federal Government from enforcing it. Undeterred, the Government now asks this Court to grant emergency relief, insisting it will suffer irreparable harm unless it can deprive at least some children born in the United States of citizenship.”
By refusing to appeal the substantive issue of birthright citizenship the federal government is engaging in what the main dissenting speech rightly calls gamesmanship: “The Government does not ask for complete stays of the injunctions, as it ordinarily does before this Court. Why? The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice.
“So the Government instead tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone.
“Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit. The gamesmanship in this request is apparent and the Government makes no attempt to hide it.”
That the Supreme Court used this case to rule against the very concept of universal injunctions is significant. Even on Justice Barrett’s account, such injunctions have existed since 1963, and over 150 have been issued in all manner of cases. If the majority decision is correct, then each and every one of those injunctions would also presumably be unconstitutional. This is thereby a huge decision, for it means that federal courts have erred on an industrial scale for more than 60 years.
A decision of such importance, which also meant that individuals would lose the practical benefit of the Fourteenth Amendment (or indeed of any constitutional protection) unless they were somehow a party to a case, should have had at least a strong majority opinion. But Justice Barrett’s opinion is relatively short and flimsy, and a good part of it is merely argumentative about what is said in the dissents. It reads almost as if she is playing to a crowd, or at least to her fellow majority judges.
Justice Barrett pays no attention to why courts have had to resort to such universal injunctions. She instead casually opens up where the federal government can break the law and get away with it. She takes a view of equity which is alien to anyone with an understanding of that venerable body of law. She holds in passing that decades of practice is somehow unconstitutional.
And in doing so she and the majority have left a gap in the constitution of the United States, where courts used to ensure the executive remained under the rule of law. Now the executive is free from such constraints. This is a momentous decision. For as Justice Jackson says in her further dissent: “The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.”
