During Thursday's oral arguments, Supreme Court Justice Sotomayor questioned Solicitor General John Sauer about universal injunctions.
Category
🗞
NewsTranscript
00:00General Sauer, these universal injunctions, as you say, have proliferated over the last three decades or so.
00:11Would you discuss, though, the origins of universal injunctions?
00:18In particular, I'm interested in sort of historical analogs or the historical pedigree,
00:25particularly the Bill of Peace that was proffered by respondents.
00:31Yes, Justice Thomas, as you, I think, first pointed out in your separate opinion in Trump against Hawaii,
00:37the Bill of Peace is something very distinct from a universal injunction.
00:40So the Bill of Peace involved a resolution of a small, discrete set of claims of a small, discrete group,
00:47and even more fundamentally, it was binding on the members of that class and those represented by the class.
00:52So it's much more analogous to a modern class action under Rule 23.
00:57And, in fact, as we've argued in other cases and as this Court has described in opinions like Ortiz,
01:02the Bill of Peace evolved into and is directly developed into, so to speak, the modern class action
01:08that has all the same features of a Bill of Peace.
01:11So in the words of Chief Judge Sutton in the Sixth Circuit,
01:14the Bill of Peace was a domesticated animal that looks nothing like the dragon of a universal injunction.
01:19I'm sorry. Here, there's a discrete identified group on one issue.
01:28Does citizenship mean, are you born in the territory of the United States?
01:35Or does it mean, are you loyal to someone else, which is your claim?
01:41Or are your parents loyal to someone else?
01:43So that's no different than what happened in a peace, in a Bill of Peace.
01:47The United States is bigger, so it extends more broadly,
01:53but it's still an identifiable group on a discrete, singular question.
02:00Your Honor, I'd say three things in response to that.
02:05First of all, our primary contention is that the citizenship clause related to the children of former slaves,
02:10not to illegal aliens who weren't even present as a discrete class at that time.
02:13But more fundamentally here, as to the issue of the Bill of Peace, there are critical differences.
02:18The Bill of Peace was a binding judgment that would bind absent class members.
02:23Here we have the ACE.
02:24Well, here, class actions don't bind anyone who opts out, so class actions are not like Bills of Peace.
02:34I would think that a Rule 23B2 class action, which would be the relevant analog here,
02:38would be one that would be binding on absent class members and would not have the same notice on opt-out procedures.
02:43And more fundamentally, that sort of argument, that there's a commonality here among all the people who purport to be affected by this,
02:50is the sort of argument that's made in class certification.
02:52So can I ask you a question?
02:54Your theory here is arguing that Article 3 and principles of equity both prohibit federal courts from issuing universal injunctions.
03:05Do I have your argument correct?
03:06We argue both of those.
03:07You argue both of those.
03:09If that's true, that means even the Supreme Court doesn't have that power.
03:13The Supreme Court would have the authority to issue binding precedent nationwide.
03:17But we couldn't enforce it against universally, is your argument.
03:21If there was a decision that violated the precedent of the court, then the affected plaintiffs could get a separate judgment.
03:28And that means you're talking about the hundreds and thousands of people who weren't part of the judgment of the court,
03:37they would all have to file individual actions?
03:41Not necessarily.
03:43Or a class action?
03:44Class action would be the way that—
03:46Isn't that—that makes no sense whatsoever.
03:49Respectfully, we believe that.
03:51Well, what was the purpose of the Bill of Peace if not to settle a legal question finally?
03:59And if even the Supreme Court doesn't have that right and must invite hundreds of thousands of lawsuits, what are we buying into?
04:09If a set of claims satisfies the rigorous criteria of Rule 23, Rule 23 is the modern analog of a Bill of Peace.
04:20We have something very different here.
04:21No, but we don't, because the argument here is that the president is violating an established—not just one, but by my count, four established Supreme Court presidents.
04:36We have the one ARC case where we said fealty to a foreign sovereign doesn't defeat your entitlement—your parents' fealty to a foreign sovereign doesn't defeat your entitlement to citizenship as a child.
04:56We have another case where we said that even if your parents are here illegally, if you're born here, you're a citizen.
05:05We have yet another case that says even if your parents came here and were stopped at the border, but you were born in our territory, you're still a citizen.
05:18And we have another case that says even if your parents secured citizenship illegally, you're still a citizen.
05:27So as far as I see it, this order violates four Supreme Court precedents.
05:33And you are claiming that not just the Supreme Court—that both the Supreme Court and no lower court can stop an executive universally from violating that holding—those holdings by this court?
05:56We are not claiming that because we're conceding that there could be an inappropriate case.
06:00Only a class.
06:01Only by a class.
06:01Can I hear the rest of his answer?
06:04A Rule 23 class action.
06:05And then the more fundamental point as to all those Supreme Court decisions you referred to—
06:09So what do we do temporarily?
06:12Temporarily, the court may issue—the lower courts may issue injunctions that remediate the injuries to the plaintiffs that appear before them.
06:20Lower courts' inappropriate cases may certify class action.
06:22So when a new president orders that because there's so much gun violence going on in the country and he comes in and he says, I have the right to take away the guns from everyone, then people—and he sends out the military to seize everyone's guns.
06:44We and the courts have to sit back and wait until every plaintiff gets—or every plaintiff whose gun is taken comes into court.
06:57In appropriate cases, courts have certified class actions on an emergency basis.
07:01We found at least four cases in recent years where that was done.
07:04But more fundamentally, we profoundly disagree with the characterization of the merits—this is now fully briefed in the Ninth Circuit in case number 25-807—where we describe how that characterization of the holding of Wong Kim, Ark, and the other decisions is profoundly incorrect.
07:19Yes, Council, um, could I ask you about—