The Wednesday Plus Advocate

Another Well Written But Highly Criticized Decision

Just as it did in overturning Roe v Wade, the United States Supreme Court has rendered a reasoned opinion that is being criticized as a danger to our democracy. I am talking about the recent decision striking down nationwide injunctions at the district court level.

I understand the ire of those who loathe this ruling, and frankly, don’t necessarily agree with it. I admire the historical context and logic expressed in the opinion as just another manifestation of the originalist jurists who occupy the court.

The backdrop to the case involves the issue of birthright citizenship and Mr. Trump’s executive order ending it. That order was challenged in federal district court, where it was enjoined on a nationwide level. The federal government appealed that decision and did so not directly challenging birthright citizenship, but the authority of a federal district court judge to issue an injunction that covered the entire nation, rather than just the parties to the case.

In the law, before anyone can bring or intervene in a court case, that party has to have standing to do so. Standing requires that the party have a direct interest in the issues before the court and the outcome of the case.

With nationwide injunctions, which apply to everyone in America, clearly the requirement of standing is circumvented. However, the Supreme Court didn’t just stop there, it gave a learned discussion of why the federal district courts were never given this power by Congress or the Constitution.

In doing so, the court considered the law that America had inherited from England when the country was first formed. The court considered the manner in which English jurisprudence would interpret the Judiciary Act of 1789, which was the law passed by Congress creating the federal court system that was established in Article Three of the Constitution.

After a lengthy review of that jurisprudence and analysis of the Judiciary Act of 1789 within that framework, the Supreme Court has given an unassailable ruling that puts to bed the power of district court judges to enjoin actions of the government on a national level. No more forum shopping by the opposition party to impede the implementation of the party in power’s policies.

However, this decision applies only to the law as it is now written. Certainly, Congress could amend the law to grant such expansive power to the district courts, although even then I suspect a challenge would be brought to say any such law is unconstitutional.

Another alternative, and one mentioned in the Supreme Court decision, would be a class action lawsuit, where people who can be certified as belonging to a certain class are able to be represented by a small group, and if that group prevails, the entire class of people are covered by the court’s ruling.

The problem with class actions is they can take a long time to not only get a class certified and thereby allowed to proceed, but can be lengthy cases once they begin.

My suggestion is for Congress to amend the Judiciary Act of 1789 to allow nationwide injunctions, but only in cases that deal with fundamental constitutional rights. Further, allow for direct interlocutory appeal to the Supreme Court on an expedited basis so that the district court ruling can be reviewed and either upheld, reversed or remanded back to the district court.

In essence, this is what has happened in the birthright citizenship cases. Orders enjoining Mr. Trump’s executive order terminating birthright citizenship were issued in February and the Supreme Court weighed yesterday. What harm is there to the government in allowing an order affecting such a fundamental issue to be stayed for a few months?

Won’t the harm to those individuals caught up in an executive order be irreparable if a temporary injunction is not allowed to stand?

Sadly, the underlying issue of birthright citizenship remains undecided. Will the government appeal the few cases where it has been enjoined as to only the named plaintiffs in those suits? Will the federal courts now be flooded with millions of law suits on behalf of individual plaintiffs? Will different courts uphold birthright citizenship for some but not for others?

Ultimately, birthright citizenship will have to be decided on its merits by the Supreme Court. For good reason, the wheels of justice turn slowly, but for those caught up in the system, that can be interminable.

I oppose birthright citizenship because it was never intended to apply to children of people who have come to America illegally. While the text of the 14^th Amendment may seem clear that such a right exists for these individuals, the historical context and intent of the Congress that passed the 14^th Amendment strongly suggests otherwise.

I am hopeful that just as it has done in the case of nationwide injunctions, the Supreme Court will again use historical perspective so that a fundamental right is not the result of unintended consequences.