During Thursday's oral arguments, Supreme Court Justice Brett Kavanaugh questioned Solicitor General John Sauer about universal injunctions.
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00:01Well, Justice Kagan asked my questions better than I could have.
00:05How do you suggest we reach this case on the merits expeditiously?
00:10There is a number of tools the court could do that.
00:11We think this case is one that cries out for percolation,
00:14that the court should allow the lower courts to address the merits issue multiple times.
00:20It's currently on briefing in three different cases in the First, Fourth, and Ninth Circuits,
00:23and we think that that's the appropriate way to do it.
00:25If the court disagreed, obviously...
00:27When you lose one of those, do you intend to seek cert?
00:30If we lose, yes, absolutely.
00:34Justice Kavanaugh?
00:36So the technical problem here seems to be class-wide relief
00:39without the district courts going through the steps to assess whether a class should be certified.
00:45Correct?
00:46Correct.
00:46Okay.
00:48And if you win here on this procedural point,
00:52it seems very likely that the day after,
00:56there are going to be suits filed all over the place seeking class-wide treatment,
01:02maybe statewide classes, circuit-wide classes, maybe nationwide classes.
01:07I'm sure they're being prepared now.
01:10And on what basis would you oppose a statewide class?
01:15I could imagine certain basis.
01:17And again, we haven't briefed this in the lower courts yet.
01:21You've been promising everyone here that Rule 23 is the cure-all,
01:27and I want to explore on what basis you would oppose a statewide class.
01:33Just take that one for now.
01:34For example, and again, this is very hypothetical,
01:37because I'm not predicting that we will or will not oppose that.
01:39We haven't taken a position on that yet.
01:41If you were to oppose it, on what basis would you plausibly oppose it?
01:46There may be problems of commonality and typicality, for example.
01:49For example, there's two different sets of groups that are affected by the executive order.
01:54There are those where the mothers are temporarily present,
01:57and those where the mother are illegally present.
01:59And in both cases, the father is neither a citizen nor a lawful permanent resident.
02:03So there might be issues of typicality.
02:06Adequacy of representation might very well be an issue.
02:08So there would have to be that rigorous application of those criteria.
02:12Now, the argument may be this is a case that is a natural candidate for a Rule 23 B2 certification.
02:17That may well be true.
02:19The government hasn't taken a position on that.
02:20Our position is not that class certification will necessarily be granted.
02:24Our position is that Rule 23 is how these sorts of claims should be channeled.
02:29And you think, I think you just said, it's very possible that class certification may be granted.
02:36It is possible.
02:37We don't know yet because there was a class certification motion filed at the very beginning
02:40in the Western District of Washington, and it was just never briefed
02:43because obviously the pathology here is that the nationwide injunctions just go blowing past
02:47the class certification procedures.
02:49And I guess Rule 23 B2, for a lot of the cases we've had over the past 25 years that you talk
02:57about where there have been universal injunctions or where the lower courts have had that, I mean,
03:0223 B2 could have been used in a lot of those, presumably, correct?
03:06Eviction moratorium, student loans, OSHA vaccine mandate.
03:12Do you see the possibility that 23 B2 could have been used instead of, I mean, some of those
03:17were APA, but put aside the APA issue for now.
03:20Yeah, we do set aside that issue, if I may.
03:23I got it.
03:24But yes, I agree with that.
03:25As to some but none of the other cases, it's hard to see how, for example, Biden against
03:29Nebraska might have, where a state was the plaintiff, might have been a 23 B2 class.
03:32The Alabama Association of Realtors might have been a much better candidate for that.
03:36And again, not taking a position on the individual merits, our overarching point is there's a
03:44tradition of equity in this country that goes back to the English Court of Chancery and what's
03:49happening in these universal injunctions.
03:51Again, 40 times in this administration, at least 22 times in the last administration, 64
03:56times in the administration before that, is just disregarding those appropriate procedures
04:01to seek this kind of global relief.
04:04I want to ask one thing about something in your brief.
04:06You said, quote, and of course, this Court's decisions constitute controlling precedent throughout
04:11the nation.
04:12If this Court were to hold a challenge statute or policy unconstitutional, the government
04:16could not successfully enforce it against anyone, party or not, in light of stare decisis,
04:22end quote.
04:24You agree with that?
04:25Yes, we do.
04:26If you prevail here, the original executive order had a 30-day period before it took effect.
04:35If you prevail here, should there be any pause so that things can happen that need to happen
04:45for 30 days or some period of time, or should we not even worry about that?
04:50Yes, we can see that the 30-day ramp-up period that the executive order itself calls for never
04:54started because the universal TROs were entered almost immediately, and we don't disagree that
05:01there should be a 30-day ramp-up period for another reason as well, which is that we've
05:05been enjoined from even doing guidance, even formulating a policy, and that itself is another
05:11problem with these injunctions.
05:12On the day after it goes into effect, this is just a very practical question of how this
05:18is going to work.
05:18What do hospitals do with a newborn?
05:21What do states do with a newborn?
05:25I don't think they do anything different.
05:27What the executive order says in Section 2 is that federal officials do not accept documents
05:32that have the wrong designation of citizenship from people who are subject to the executive
05:35order.
05:36How are they going to know that?
05:37The states can continue to, the federal officials will have to figure that out.
05:41How?
05:41So, you can imagine a number of ways that the federal officials could.
05:46Such as?
05:47Such as they could require a showing of, you know, documentation, showing legal presence
05:52in the country.
05:53For a temporary visitor, for example, they could see whether they're on a B-1 visa, which would
05:57exclude kind of the birthright citizenship in that context.
06:00For all the newborns?
06:01Is that how that's going to work?
06:03Again, we don't know because the agencies were never given the opportunity to formulate the
06:08guidance.
06:08They would have 30 days.
06:09They're only going to have 30 days to do this.
06:11Do you think they can get it together in time?
06:13They're under, that's what the executive order instructs them to do, and hopefully they will
06:17do so.
06:18Again, it's a speculative and hypothetical scenario because they were enjoined from even starting
06:22that process.
06:22And then last question.
06:23You mentioned before this has come up in the last four or five administrations primarily.
06:29You know, I guess I've thought about that a lot, too.
06:31Why?
06:32It seems why might be it's harder to get legislation through Congress, particularly with the filibuster
06:38rule.
06:38Presidents want to get things done with good intentions.
06:43The executive branches that work for those presidents push hard to, when they can't get
06:49new authority to stretch or use existing authority.
06:54And they've been pushing, understandably, all with good intentions.
06:58All the presidents, both parties, right?
07:00With good intentions, pushing.
07:02Is that your understanding of why this has happened more, that there's less ability to
07:07get legislation?
07:08Because I'm trying to figure out the why to your opening about the last four or five administrations.
07:13I agree with it.
07:14I think that might be the why, but I'm curious what you think.
07:18I'm speculating about the motivations of the individual district judges who grant these,
07:22but one explanation might be this is an extraordinary power.
07:25It's a very strong power for the reasons the questions have reflected.
07:29Well, let me just pause you right there.
07:31The underlying point is that these district judges are not just doing universal injunctions.
07:36They're finding these actions illegal because they're exceeding existing authority.
07:42And oftentimes we are, too, when it gets to us, finding the actions of presidents of both
07:46parties unlawful because they exceed existing authority.
07:50So is that coming up more often because of why is that coming up more often?
07:55You know, it's hard to do an historical analysis, but I would draw an analogy to the new
07:59deal.
08:00And Professor Bray makes this point in his article that actually there were very, very
08:03passionate challenges to, you know, sort of nationwide policies during the Roosevelt
08:08administration, and they were not addressed by issuing universal injunctions.
08:11He cites an example for, in one case, a policy had been held illegal, and there were like
08:151,600 injunctions against that policy, all protecting the individual plaintiffs.
08:19So if you look at the history, it's not clear that what we have of, you know, disagreement,
08:24but difficulty, gridlock, getting things through Congress and so forth, that's not necessarily
08:28new.
08:29What is new and is certainly unique to the last five presidential administrations is having
08:35these given on this widespread basis and this systematic basis, 40 again in the last
08:40four months.
08:41Justice Barrett.