The Clear Winner in Trump v. CASA: The Supreme Court
Lower courts lost, and the executive branch got mixed results.
Please click here to opt in to receive via email our Roundup—brief daily summaries of news developments and commentary related to executive power.
Many are touting Trump v. Casa as a major victory for President Trump. And in many ways it is. But I see it as a larger victory for the Supreme Court.
Trump v. CASA was not a surprise
Five Justices—Thomas, Alito, Gorsuch, Kavanaugh, and Barrett—had previously argued against universal injunctions. But conservatives are not the only ones who’ve complained about them. Justice Kagan expressed doubt in off-Court remarks. The Biden administration nine months ago asked the Court to grant certiorari to kill “universal relief” using many of the arguments deployed in Trump v. CASA. And on the last day of 2024, just before the Trump presidency began, the Biden administration proposed (in an interim order application) that the Court grant certiorari to consider the validity of universal injunctions. It described the regular issuance of universal injunctions as (quoting Justice Gorsuch) “patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions.”
Trump v. CASA was neither radical, nor ungrounded, nor a surprise.
Trump v. CASA Left a Lot Open—for the Supreme Court to Decide
Trump v. CASA killed lower-court universal injunctions but did not kill lower-court universal relief. As others have noted, the decision leaves open many avenues to lower-court universal relief: class actions, APA vacatur, certain suits by states, other forms of suit that demand complete relief, and “indivisible” remedies that incidentally benefit third parties. Litigation for universal relief against presidential action will now shift to these grounds.
Who will have the final say on the scope of these workarounds for universal injunctions? The Supreme Court.
The Supreme Court Is in Charge Vis-a-Vis Lower Courts
Trump v. CASA was an interim order ruling, not a final decision on the merits. In relevant part the Court held only that the government is “likely to succeed on the merits of its argument regarding the scope of relief.” There is an open debate about when and why Supreme Court interim orders should or must be followed by lower courts.
The extensively reasoned interim order opinion in Trump v. CASA on an issue that the Court has been thinking about intensely for over a decade is entitled to a great deal of deference by lower courts under any theory of vertical bindingness in this context. If a lower court had the gumption to say that the issue was technically still open and issued a universal injunction, the Court would quickly intervene to stay or vacate the decision.
Supreme Court “Supremacy” Vis-a-Vis the Executive Branch
Charlie Savage maintained that Trump v. CASA “diminish[ed] judicial authority as a potential counterweight to exercises of presidential power.” Ruth Marcus made a similar claim in a piece entitled “The Supreme Court Sides With Trump Against the Judiciary.”
These propositions are true only of the lower federal courts. Trump v. CASA did not diminish the Supreme Court’s authority vis-a-vis the presidency. The Court held at least that lower courts lacked authority to issue universal injunctions. The Court was ambiguous about whether it could issue universal relief via injunctions. But it made clear in ways that it never has before that it expects executive branch compliance with its opinions and judgments on a universal basis.
Begin with the last sentence of the opinion. At oral argument, Solicitor General John Sauer “concede[d] that the 30-day ramp-up period that the executive order itself calls for never started” and that “there should be a 30-day ramp-up period” for the administration to provide guidance. The Court in the last sentence stated: “Consistent with the Solicitor General’s representation, §2 of the Executive Order”—which implements the birthright citizenship ban—“shall not take effect until 30 days after the date of this opinion.” That sure sounds like a universal injunction! The Court never explains how Sauer’s concession got translated into a judicial command, presumably under the All Writs Act. The command is especially unusual since it is directed at a presidential order.
If this were a lower-court injunction and it were closer to January 20, the Trump administration might skirt the injunction by replacing (or amending) the executive order to allow a shorter ramp-up period. Or it might argue that the injunction applied only to the parties to the interim order application. But Sauer’s reputation and the Trump administration’s credibility before the Court are on the line. I expect the Trump administration to comply with this 30-day universal injunction. And if it doesn’t I expect a quick intervention by the Court.
Sauer at oral argument made a concession with much greater significance for relations between the Court and the executive branch. As I explained last month, Sauer pledged to five different Justices that the government would, as Sauer put it to Justice Barrett, “respect the opinions and the judgments of the Supreme Court.” When she asked whether he was “hedging at all with respect to the precedent of this Court,” Sauer said he was not. Sauer similarly told Justice Kagan that a Supreme Court decision on a matter “would be a nationwide precedent that the government would respect.” And he made analogous statements to other Justices.
This was an unprecedented executive branch concession to the Supreme Court. It in some respects went beyond Cooper v. Aaron, which was about state officials’ duty under the Supremacy Clause to comply with a Supreme Court judgment. When Justice Thurgood Marshall pressed President Nixon’s lawyer in U.S. v. Nixon, James St. Clair, on an analogous question about presidential judgment compliance, St. Clair hedged. Some long past presidents in times of crisis have threatened to defy judicial judgments or to disregard the precedential value of opinions. But Sauer did not hedge or threaten to defy the Court. He bent over backwards to assure the Court that the Trump administration would comply with the Court’s judgments and opinions (i.e. precedents).
Why would the chest-thumping executive supremacist Trump administration make such a historical concession? Because, I argued last month, it “realizes that the price of getting rid of universal injunctions is to pledge respect to Supreme Court precedent so that the Supreme Court, at least, can ensure that government illegality can be stopped in full.” This was a major theme at oral argument—if universal injunctive relief in the lower courts goes away, what is to stop the government from doing illegal things when not every affected plaintiff can find a way to sue? The answer Sauer gave was: Don’t worry, we will comply with Supreme Court judgments and opinions on a universal basis.
I predicted that this concession would “likely feature in the Court’s opinion as a lynchpin to the demise of, or at least attenuation of, universal injunctions.” And that is what happened. In footnote 18, Justice Barrett responded to the speculation in Justice Sotomayor’s dissent that (in Justice Barrett’s words) “the Government would disregard an unfavorable opinion from this Court.” Justice Sotomayor was worried about the issue that dominated oral argument: Will the Supreme Court’s orders be enforceable universally? Justice Barrett’s rejoinder: “[T]he Solicitor General represented that the Government will respect both the judgments and the opinions of this Court.”
That might not sound like much, but it is a huge deal. Never in the pages of the U.S. Reports, as best I can tell, has the Court stated an expectation that the executive branch would comply with the “judgments and the opinions” of the Court. The closest it came, I think, was in U.S. v. Nixon:
In the performance of assigned constitutional duties, each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President’s counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. … Notwithstanding the deference each branch must accord the others, the “judicial Power of the United States” vested in the federal courts by Art. III, § 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47. … We therefore reaffirm that it is the province and duty of this Court “to say what the law is” with respect to the claim of privilege presented in this case. Marbury v. Madison.
This was a response to the oral argument exchange linked above. It is ambiguous, and is at most a claim of supremacy “in this case”—i.e. the judgment will bind the president.
In footnote 18 in Trump v. CASA, the Court made clear its expectation that the executive branch will comply with its “judgments and opinions.” No, the Court did not make a full-throated claim of legally binding supremacy as it did vis-a-vis states in Cooper v. Aaron. Anything more than what the Court said and did would have surely been self-defeating. The Court gave Trump a victory in the case without overtly claiming supremacy. But the Justices in oral argument and the majority opinion laid down a marker: They expect the Trump administration to honor Sauer’s pledge.
And I expect that the administration will honor it. It has been doing well before a Court that is inclined toward presidential power, even as it has suffered high-profile losses in decisions about foreign spending, the Alien Enemies Act, and Abrego-Garcia—decisions with which it has (very) grudgingly complied. And it will likely continue to do well on many issues. The Court seems to be saying that the price of continuing to do well is adherence to the law as articulated by the Court when the administration loses. And the administration will lose—almost certainly in the birthright citizenship case on the merits, and in other cases.
The Kavanaugh Concurrence: De Jure or De Facto Universality?
It is an interesting question how to square the Court’s rhetorically successful disagreement with Justice Jackson’s extreme judicial supremacy claims for federal district courts vis-a-vis the executive with its own reliance in footnote 18 on at least practical judicial supremacy for the Supreme Court vis-a-vis the executive. It is pretty clear that the conservatives on the Court, most of whom ostensibly reject hard-core judicial supremacy, have not sorted this out, at least not in a way they can agree.
If you read Justice Barrett’s engagement with Justice Jackson carefully, she did not say a word contrary to footnote 18. The disagreement focused primarily on universal injunctions by lower federal courts. Yes, Justice Barrett acknowledges that “the Judiciary” lacks “unbridled authority” to enforce the executive branch’s “duty to follow the law”—for example, subject matter jurisdiction limits as in Marbury apply. And yes, it remains possible that the Court’s denial of federal judicial authority to issue universal injunctions under the Judiciary Act could apply (as Justice Sotomayor speculated) to the Supreme Court itself. But as the last sentence (among other places) in the opinion suggests, that is not clear. And in any event, footnote 18 is not about compliance with universal injunctions. It is about a different and broader idea: the long-accepted-in-practice but never expressly stated and mysteriously grounded idea that the executive branch will comply with Supreme Court decisions—“judgments and opinions”—universally.
The rubber will hit the road on these questions at least as early as the next time the Court itself issues an injunction against the Trump administration. Here is where the views of Justice Kavanaugh, who seems to be in the middle of the Court on these issues, become interesting.
In his concurrence, Justice Kavanaugh makes clear his belief that the Court, after Trump v. CASA, will rule on challenges to executive power with universal effect. He says that there often should be “a nationally uniform answer on the question of whether a major new federal statute or executive action can be legally enforced in the often years-long interim period until this Court reaches a final decision.” And he says that the Supreme Court will “typically” decide this “interim status” that will be “uniform throughout the United States.”
Justice Kavanaugh seems to fudge on whether a Supreme Court ruling has universal effect as a matter of law, practical politics, or something else. “[W]hen this Court makes a decision on the interim legal status of a major new federal statute or executive action—that decision will often constitute a form of precedent (de jure or de facto) that provides guidance throughout the United States during the years-long interim period until a final decision on the merits,” he says. But his expectation about the universal or nationwide impact of Supreme Court decisions, at least usually, is clear.
There are very deep questions buried (and glided over) in Justice Kavanaugh’s “de jure or de facto” formulation, just as there are very deep questions buried (and glided over) in Sauer’s concessions and in footnote 18 about the basis for the executive branch’s compliance with Supreme Court “judgments and opinions.” These questions have been glided over for nearly 240 years. Trump v. CASA is the most the Court and the executive branch have ever discussed the issue, and both sides are proceeding in a delicate fashion. While both seem on board for the universal effect of Supreme Court rulings, the basis for that consensus, legal or political or practical, remains elusive.
Conclusion
It is way too early to treat Trump v. CASA as a Marbury moment where the Court under the guise of judicial weakness proclaims a power that enhances its authority over the ages. The Court acted from a position of relative institutional weakness not unlike what the Marshall Court faced—a hostile executive branch implicitly threatening judicial defiance. And it played its weak hand shrewdly. It ruled in a way that it was previously inclined to rule on universal injunctions, while leaving open many other avenues to lower-court universal relief. And in exchange it extracted a first-ever executive branch pledge of fealty to Supreme Court “judgments and opinions,” which will appear in the forever-citable pages of the U.S. Reports.
Amazing.