During Thursday's oral arguments, Justice Sotomayor questioned Trump's lawyer Sauer about past judgments.
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00:00Justice Sotomayor. You answered Justice Gorsuch, I think correctly, that if Article 3 precludes universal injunctions, then even class actions are illegal. That's what you're arguing, isn't it?
00:15I disagree with that profoundly. How could it, if Article 3 and only prohibits injunctions that affect non-members or non-plaintiffs, how could Congress give a remedy like a class action?
00:31In an Article, or in a Rule 23 class, every member, represented member of the class, has standing by hypothesis. So every single one of them has an Article 3 injury. And Rule 23 again...
00:43So that would be the only method.
00:45It would be very similar to the Bill of Peace, where all those parties, even their president of representative capacity, are bound.
00:50We can act quickly. If we are worried about those thousands of children who are going to be born without citizenship papers, that could render them stateless in some places, because some of their parents' homes don't recognize children of their nationals,
01:11unless those children are born in their countries, unless those children are born in their countries, they're not going to be receiving federal benefits, because that's the claim of the state plaintiffs here, that they're not going to be able to provide services to those children.
01:30If we're afraid that this is, or even have a thought, that this is unlawful executive action, that it is Congress who decides citizenship, not the executive,
01:48if we believe some of us were to believe that, why should we permit those countless others to be subject to what we think is an unlawful executive action?
02:04As unlawful as an executive taking the guns away from every citizen.
02:10Cert before judgment would be another tool, but through which this court could ask expeditiously...
02:14Is this the kind of case where the equities would call for that? And why wouldn't it? It's a pure legal question.
02:24What does the Constitution mean with respect to citizenship? There are no individual facts that would alter our conclusion.
02:34If we can't do it by a universal injunction, because you say Article III doesn't permit that.
02:44Article III wouldn't permit us to give a universal injunction, even if we rule.
02:50Why don't we grant cert before judgment, so that all of these parents would have a firm Supreme Court decision that they can take where?
03:02Because you're saying nobody can grant a universal injunction.
03:06No party has asked for that in this case.
03:08I think one reason is that would deny the court of the benefit of percolation and multiple lower courts of a novel and sensitive and important constitutional question.
03:14Right now we have multiple courts who have percolated this issue and said you're violating precedent.
03:24Not only precedent, but the plain meaning of the Constitution.
03:33Respectfully, I think what we have are lower courts making snap judgments on the merits that ignore the fundamental principle of the 14th Amendment,
03:40that it was about giving citizenship to the children of slaves, not to the children of illegal immigrants who really were not even a very discreet class at that time.
03:47And there were some people in Congress who argued against the 13th Amendment just because of that.
03:53Some people who argued against passing the amendment just because of that, because it would give citizenship to gypsies.
04:00I think the relevant history of the 14th Amendment is the statements of Senator Trumbull, who emphasized that domicile was the key criteria.
04:09And he said that in a letter to Andrew Jackson.
04:11And we've cited our nine circuit briefing a host of decisions that backed that up.
04:15And it got rejected repeatedly.
04:17We can go into the history of citizenship, but I still go back to my question.
04:22You claim that there is absolutely no constitutional way to stop, put this aside, to stop a president from an unconstitutional act, a clearly, indisputably unconstitutional act, taking every gun from every citizen.
04:45We couldn't stop that.
04:48I disagree with that for the reasons I've said, including the equitable tools.
04:52No, because you said to us we'd have to wait until there was a final judgment.
04:56You're not sure you would respect the judgment of every circuit.
05:00You're not sure that you would respect even a final judgment of the Supreme Court because it only binds the parties before it.
05:08And if there's no class action, that only binds the parties before the court.
05:13I don't think there is a, so to speak, really, really unconstitutional exception to the strictures of Article 3 or the scope of equitable authority.
05:20And the court should not recognize one because what we see, not just in this case, but in the 39 others,
05:25is that district courts who are issuing these injunctions all passionately disagree with the thing that's being challenged in that.
05:31So that principle that, well, this we think is really unconstitutional, therefore we should ignore the general principles of Article 3,
05:37is not a principle the court ought to adopt.
05:40Justice K.
05:42.