The Supreme Court of the United States is poised to make one of the most important decisions this term: the constitutionality of President Trump’s Executive Order challenging birthright citizenship. As the Court considers this substantive question, many scholars, judges, lawyers, and Americans are still grappling with the meaning of its earlier remedial decision, Trump v. CASA. Thankfully, Professor Mila Sohoni’s essay provides an excellent analysis of the case and its implications.
Sohoni provides a thoughtful, fair, and clear-eyed summary of what the opinion does and does not do. She starts by explaining how the Court now forbids district courts from issuing injunctive relief beyond the parties (“universal injunctions”). She flags important interpretive vacuums and questions left in CASA’s aftermath. Having clearly identified CASA’s boundaries, she recognizes the various means through which federal courts can provide broad injunctive relief to those challenging executive branch overreach. Finally, and most importantly, Sohoni contextualizes CASA during these turbulent times.
Pulling out to a bird’s eye view, she illustrates how the Trump Administration is weaponizing CASA. The Administration accuses federal court judges of judicial activism, defiance, and insubordination whenever they issue systemic injunctive relief. Such rhetoric aims to misinform the public and to punish and silence judges who perform their jobs by acting independently and consistently with the Constitution and rule of law. Sohoni urges the judiciary and others not to take the bait. The Administration’s campaign to delegitimize judges, judicial review, and the oversight process is a dangerous path we cannot afford to spiral down. Sohoni offers not only practical legal strategies for those fighting widespread suffering under the current political regime, but a deeper understanding of what is at stake moving forward.
The essay begins by setting the table, unpacking remedies law and shedding light on the Court’s jurisprudence regarding the scope of equitable relief. Sohoni would know; she has been studying and writing in the area for over a decade. The Court has cited her numerous times during the first and current Trump Administrations. Her voice is central to understanding the landscape, especially post-CASA. In a complex case with three concurrences and two dissents in addition to a 6-3 majority, Sohoni makes CASA surprisingly accessible.
In a nutshell, CASA no longer allows federal district courts to issue injunctive relief beyond the parties to a case. The Supreme Court concluded that the Judiciary Act of 1789 forbids such “universal” injunctions.
By way of background, CASA arose from three cases filed by individuals, organizations, and states in federal district courts in Maryland, California, and Washington challenging the Executive Order (EO) 14160 redefining birthright citizenship under the Fourteenth Amendment Citizenship Clause and the Nationality Act of 1940. Each district courts issued a nationwide preliminary injunction, enjoining implementation and enforcement of the EO against anyone nationwide. Three courts of appeals denied the Administration’s requests for stays, leading the government to file emergency applications to the Supreme Court to stay the injunctions as they applied to non-parties. The Administration argued that the district courts did not have the equitable authority to issue nationwide or “universal” injunctions, a position CASA’s conservative majority (6-3) endorsed.
Relying on the Judiciary Act of 1789 (rather than Article III), the Court stayed the injunctions to the extent that they were broader than necessary to provide “complete relief” to each plaintiff with standing to sue. The Court concluded that Congress only granted federal courts equitable remedies that were “traditionally accorded by courts of equity” at the founding. Going back to the High Court of Chancery in England, the Supreme Court described longstanding general practice of the Chancellor as awarding remedies specific to the parties. Courts of equity in the U.S. at its founding followed this trajectory. In a battle among the experts (primarily between Sohoni and Sam Bray), CASA’s majority sided with the latter, concluding that universal injunctions were absent for most of the nation’s history (1700s, 1800s) and surfaced relatively recently (in the 1900s). The Court rejected bills of peace and taxpayer suits as precursors to today’s universal injunctions, concluding: “Because the universal injunction lacks a historical pedigree, it falls outside of the bounds of a federal court’s equitable authority under the Judiciary Act.” Any benefit to non-parties can only be “incidental” and is allowed only if this is the “only feasible option.”
With the remedy of non-party universal injunctive relief off the table, many scholars, judges, lawyers and litigants are trying to figure out what’s next. Sohoni characterizes the legal landscape as follows: “CASA has not reset the relationship between federal courts and the executive branch. What it has done is introduce new sources of tension into it.” The opinion has left open several “interpretive vacuums” with which many of us are wrestling. While Sohoni concedes that it will take time to grapple with the issues left unaddressed, undefined, and ambiguous, she provides an excellent roadmap to begin that understanding. The essay explores court power and injunctive relief post-CASA in five areas: complete relief, agency vacatur, injunctive class actions, associational and third party-standing, and statutory authority.
First, while CASA preserved federal courts’ capacity to provide “complete relief” to plaintiffs, it left the term undefined. Complete relief includes “indivisible” remedies (e.g., the quintessential scenario where blaring loud music that is turned down benefits not only the complaining neighbors but also their non-party neighbors because the remedy cannot be divided). Complete relief also includes universal relief when it is the “only feasible option” (e.g., a broader injunction offers the only workable way to avoid the financial and administrative burdens on states administering federal programs that turn on the citizenship of beneficiaries). Complete relief is not guaranteed, and functions as a cap. Yet such relief, while only between the parties, may benefit non-parties when “incidental.” Thus, federal courts have significant room to award “complete relief.”
Second, CASA carved out universal vacatur of an unlawful federal agency rule or action under the Administrative Procedure Act (APA). Lower courts can continue their long history of universally setting aside unlawful agency conduct. Having distinguished the APA from the Judiciary Act, Justice Kavanaugh’s concurrence concludes that vacatur may act as the “functional equivalent” of the now-defunct universal injunction.
Third, CASA permits the modern injunctive class action of Federal Rule of Civil Procedure Rule 23(b)(2), enabling broad systemic relief. So long as litigants satisfy the Rule’s “rigorous” criteria, they may be entitled to broad relief protecting everyone affected by the challenged executive policy. CASA held that the universal injunction was an impermissible “workaround” to Rule 23 class actions, but not vice versa. Unlike the banned universal injunction, the class action has the requisite “historical pedigree”—the bill of peace. Justice Kavanaugh’s concurrence identifies the modern class action as the “functional equivalent” of the now-defunct universal injunction, so long as district courts follow proper procedure. Moreover, CASA permits a preliminary injunction for a putative class (one not yet certified), even though its members are not (yet) parties. This is allowed, Sohoni argues, because the class action’s equitable history bona fides predate the Rule’s adoption in 1966. Thus, the class action, while described by Justice Sotomayor’s dissent as “cumbersome,” may help fill CASA’s remedial gap.
Fourth, CASA was silent about associational and third-party standing. This means that organizations may continue to seek injunctive relief for their unidentified members nationwide and states may continue to seek the same for their individual residents. The law remains intact post-CASA.
Fifth, CASA’s holding is significantly limited by its reliance on statutory, rather than constitutional, grounds. Tethered to the Judiciary Act, CASA leaves open the possibility that other statutes may provide courts with the authority to provide universal equitable relief (e.g., the APA) and that Congress itself could broaden such authority by amending the Judiciary Act.
Having offered ways courts post-CASA can broadly check executive branch overreach, Sohoni turns to the Administration’s misreading of the opinion and its dangerous implications. Shifting from a relatively optimistic lens to a more sinister one, she warns of the Administration’s larger goals to discredit and retaliate against judges who act independently and to undermine judicial review writ large. The Administration accuses federal judges who order broad injunctions against its lawfully dubious policies of circumventing CASA. It portrays such judges as “rogue,” “activist,” “defiant,” and politically motivated, while criticizing them for abusing their authority and engaging in insubordination. The Administration expects lower court judges to do its bidding, rather than responsibly interpret and apply the law and exercise discretion in complex ways. The Administration vilifies normal law percolation and checks and balances.
This type of rhetoric is not only inflammatory, but dangerous. Judges are ignored and disobeyed, sued, targeted for impeachment, verbally attacked, and subjected to death threats, all for doing their job. This assault on judges who courageously issue orders consistent with the rule of law is part of a larger campaign to de-legitimize the judiciary. Sohoni reminds the Supreme Court of its power and responsibility to hold the line so that “reasoned dialogue and mutual respect” may once again define our “constitutional culture.” On the cusp of authoritarianism, Sohoni’s warning could not come sooner.
