Judge Amy Coney Barrett asks Solicitor General D. John Sauer during oral arguments in a key case involving birthright citizenship.
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00:00Let me ask you on that point, would one distinction be who's bound by the judgment?
00:04Like, I'm wondering whether if the plaintiff needs, you can only, I think Judge Strauss
00:09said in the 8th Circuit when addressing this issue, you can't peel off part of a nuisance,
00:12so the whole thing has to be shut down.
00:15Could a neighbor sue affirmatively to hold the nuisance maker in contempt if he started
00:22to begin again the nuisance?
00:26That's a great point.
00:27It would not be bounding on those collaterally benefited parties, so to speak.
00:32I don't want to call them parties because they're not parties before the court.
00:34And that, of course, highlights one of the deep problems with the U.S.
00:37Could you do that now for the universal injunction?
00:42Could a plaintiff, for example, who has the protection of the universal injunction but was
00:47not named in the suit bring a contempt action of the sort I just described?
00:52They could not do that.
00:53But what they could do is run to any of 93 other judicial districts and bring their own
00:57lawsuit if they—
00:58No, no, no, no, under the injunction as it stands, under the injunctions as they stand,
01:04could a non-named plaintiff who has the benefit of the universal injunction that's currently
01:09in place, could that plaintiff bring a contempt proceeding?
01:13We would—
01:14Or I guess I shouldn't call them a plaintiff.
01:15Could that non-party—
01:16We would dispute that they would have the standing to do that because it goes to the
01:20heart of—
01:21Well, no, no, no.
01:22Let's see.
01:23Maybe I'm not being clear.
01:24Assume the universal injunction is good.
01:26Like, drop your argument right now.
01:28Oh, I see.
01:29As they currently stand, could someone who is not named in the suit but a beneficiary
01:33bring a contempt proceeding?
01:34I think that that is what the respondents would certainly contend.
01:37Do you concede that the plaintiffs could bring a Rule 23, like the individual plaintiffs?
01:41We would dispute—I mean, we'd have to address the Rule 23 issues, kind of, all the criteria
01:46as they came up.
01:47But you could—they could seek it.
01:48Okay, and then last question.
01:49And they have done that in the Western District of Washington.
01:51It's just never been briefed because they—
01:52Okay, just last question on this point.
01:56The states have a different kind of claim for financial harm, and they've pointed out that
02:00it would be very difficult to remedy that without some sort of broader relief.
02:04I know you can test their standing.
02:06I want you to assume that I think they have standing.
02:09Why wouldn't they be entitled to an injunction of the scope of the one that has currently been
02:13entered?
02:14I would say two reasons.
02:15First of all, it's not necessary to provide complete relief to the plaintiffs.
02:18What we offered, for example, in the District of Massachusetts in the Second—or the First
02:21Circuit was an injunction that would enjoin the federal officials and order them to treat
02:28the people who would otherwise be covered by the executive order as eligible for the
02:31services that result in the pocketbook injuries to the states.
02:34And there's really no response to that.
02:36That is obviously—would fully remediate their injuries and does not require the injunction
02:41to be applied in all other 50 states.
02:43One state comes in and says, well, people are going to move across state lines, therefore
02:46we've got 21 states in this case who don't want this relief.
02:49Sorry, you've got to impose it on everybody because it has to be offered to this one particular
02:55state.
02:56So that's one response.
02:58The other response is this notion that the states have to be provided a complete relief
03:03because of interstate travel and patchwork.
03:05I think that's very effectively responded to by Chief Judge Sutton's opinion in the Second
03:09Circuit where he says, this is a problem.
03:11If we adopt this logic, it justifies a universal injunction in every single case, and that can't
03:15be the case if the Fifth Circuit's recent DACA decision comes to the same conclusion.
03:19It says, this is a problem.
03:21But it is a problem.
03:25It is a problem.
03:27I think you can do it.
03:28The second one is a problem.
03:29The second one is a problem.