Will Federal Judges Defy the Supreme Court?

Will federal judges accept the Supreme Court’s ruling to stop issuing nationwide diktats to block President Trump’s executive orders? Early signs suggest not. A district judge at Washington, Randolph Moss, just blocked Mr. Trump from limiting asylum applications. He also made the case a “class action,” positioning him, in effect, to hand down the kind of “universal injunction” that the high court just found federal district courts lack authority to issue.Another federal district judge, Joseph LaPlante, is being asked by the American Civil Liberties Union to allow a class action in a case over Mr. Trump’s policy ending automatic citizenship for children of illegals. The ACLU wants to include in the class all prospective parents who are illegal immigrants. If the ACLU’s request is granted, the judge could then foreseeably put a new hold on Mr. Trump’s policy — a “universal injunction” in all but name. These cases raise questions about whether judges intend to abide by the high court’s ruling, which arose in response to a wave of judicial obstruction that appears to be animated by hostility to Mr. Trump. Judge LaPlante in February issued an injunction halting Mr. Trump’s birthright order, one of three local federal jurists who blocked to the policy, though Judge LaPlante’s order was limited to his own court’s jurisdiction. In all, judges issued some 25 sweeping nationwide halts in Mr. Trump’s first 100 days.The Supreme Court held that judges, under federal law and the Constitution, lack power to issue these orders. Justice Amy Coney Barrett, writing for the majority, stressed that the high court’s ruling reminds that “everyone, from the President on down, is bound by law,” and “that goes for judges too.” Yet some in the court’s majority marked, too, the concern that federal judges could be tempted to use class actions to achieve the same ends as universal injunctions.That seems to be what Judge Moss is aiming to accomplish by halting, for now, Mr. Trump’s policy aiming to curb migrants’ abuse of asylum applications. Judge Moss justifies today’s order by noting that the Supreme Court’s order Friday leaves it an unsettled question as to “whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action,” as the majority opinion in Trump v. CASA put it in a footnote.The more sweeping policy implications in the asylum case could emerge from Judge Moss making the case a class action, enabling him to make rulings applying to individuals across the country. During arguments in CASA, too, Justice Barrett suggested that the birthright case could become a class action. Feature the colloquy between Justice Barrett and the solicitor general, John Sauer, over whether a class action could prove a way to resolve the case’s merits.“Keep in mind that in many of these cases we successfully oppose class action,” General Sauer advised. “Let’s assume I think you can’t successfully oppose it here for individual plaintiffs,” Justice Barrett replied. The point of the thought exercise, per Justice Barrett, was to see if “there’s a practical difference” in a legal dispute between a universal injunction and the formation of a class. In either case, she asked, if the government lost, would it “respect that judgment?”General Sauer vowed that the government would, indeed, accept the loss. In a separate exchange, Justice Barrett raised the prospect that a “class certification” in the birthright case could “resolve the question quickly.” Justice Barrett had General Sauer confirm, too, that “you concede it could resolve the question quickly through precedent?” That is an apparent reference to the high court’s past rulings favoring automatic citizenship for the children of illegals.One doesn’t want to read too much into these parleys before the high bench. Yet their tenor, and Judge Moss’s ruling today, suggests why Justice Samuel Alito, in his concurrence in CASA, worried that the overuse of class actions could undermine the high court’s ruling against universal injunctions. He urged “district courts to follow proper legal procedures” when weighing the approval of class actions. Will Judge LaPlante, and other jurists, heed the warning?_________________Correction: Judge LaPlante in February issued an injunction barring President Trump’s birthright citizenship order within his court’s jurisdiction. An earlier version misstated the scope of the ruling.

Will Federal Judges Defy the Supreme Court?

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