The heart of Justice Ketanji Brown Jackson’s dissent in Trump v. CASA is that the Constitution does not permit the exercise of arbitrary power and is certainly not a document that gives to any single individual the authority to rewrite the law.
This may seem to be a strange dissent to issue in a case that deals narrowly with the legality of nationwide injunctions, the practice by which federal courts block the application of laws and executive orders for the entire nation as a way of issuing temporary relief pending further appeal. But this particular case regarding nationwide injunctions had to do with the Trump administration’s order overturning birthright citizenship, a right established in Section 1 of the 14th Amendment and reaffirmed in subsequent legislation and jurisprudence.
In 1898, the Supreme Court held that birthright citizenship applies to every person born in the United States. The only exceptions are those people who do not fall under the jurisdiction — which is to say, the laws — of the United States. In 1868, at the time the amendment was ratified, that meant foreign diplomats and members of Native tribes.
The children of everyone else are citizens if they are born on American soil. Driven by his nativist vision for the United States, President Trump sought to subvert this, with an executive order limiting birthright citizenship to only those with at least one parent who is a citizen or lawful permanent resident. The order, issued on the president’s first day back in office, was set to take effect on Feb. 19.
This was an outright attack on the Constitution. However much Donald Trump and Stephen Miller might want it to be otherwise, undocumented immigrants are subject to the jurisdiction of the United States — they can be arrested and tried in criminal courts, for instance — and thus their children, who are also subject to that jurisdiction, are American citizens if born on American soil.
The blatant illegality of the president’s executive order meant immediate legal backlash. Several states and parties filed lawsuits and a federal court quickly held that the executive order was plainly unconstitutional, freezing it nationwide.
Now, even skeptics of the nationwide injunction — such as myself! — would have to admit that this is a case where, given the stakes and the circumstances, it would be wise to prevent the president’s order from taking effect pending further litigation and review. Not so the Supreme Court.
In a decision written by Justice Amy Coney Barrett, a six-justice majority held that a nationwide injunction was not an appropriate method of relief, and that those affected by the executive order would have to either file suit themselves or join a class action. The court issued a 30-day hold for the president’s executive order, so that plaintiffs would have time to file in court. In her opinion, she also affirmed that courts can grant “complete relief” that affects third parties. It is possible, then, that plaintiffs can achieve the results of a nationwide injunction without use of the practice itself.
And yet, it still should be said here that this is a strange vehicle for the conservative majority to tackle the question of nationwide injunctions. There were ample opportunities under President Biden to do so, and the Biden White House even asked the court to consider the issue. It said no.
As far as I can tell from the outside, none of the nationwide injunctions issued under Biden seemed to test the court’s patience. The conservative majority seemed content to allow district courts to operate as normal. It is only now, under President Trump, that the conservatives have had a change of mind. And they’ve done so in the context of an executive order that exemplifies this president’s lawlessness and open contempt for the Constitution.
It is generally not polite, in writing about the court, to note thepartisan affiliations of the justices. But here I think it’s appropriate, since for as much as there are real merits to ending nationwide injunctions, it is also difficult to escape the conclusion that a Republican-appointed majority with an expansive view of executive power is working, again, to give as much freedom of action to a Republican president, in this case, the Republican president who secured their supermajority.
To return to Justice Jackson’s dissent, she notes that by ending the practice of nationwide injunctions in this particular circumstance, the majority has empowered a lawless president to violate the rights of American citizens, who then have no particular relief other than what they can get in a slow-moving judicial process. The majority, Jackson argues, is missing the forest for the trees. The nature of the Constitution, from the original document to its amendments, is that it is a brief against the exercise of arbitrary power. And here is the Supreme Court blessing a president’s exercise of arbitrary power as if the executive were the sovereign lord of the nation and not a mere servant of the Constitution.
It’s worth quoting at length from Jackson’s dissent:
The majority’s ruling thus not only diverges from first principles, it is also profoundly dangerous, since it gives the executive the go-ahead to sometimes wield the kind of unchecked, arbitrary power the Founders crafted our Constitution to eradicate.
“The Founders of the United States of America,” she continues, “squarely rejected a governing system in which the King ruled all and all others, including the courts, were his subordinates. In our Constitution-centered system, the People are the rulers and we have rule of law.”
The majority, Jackson argues, has created a law-free zone of arbitrary power which is “unlikely to impact the public in a randomly distributed manner.”
“Those in the good graces of the Executive,” she writes,
have nothing to fear; the new prerogative that the Executive has to act unlawfully will not be exercised with respect to them. Those who accede to the Executive’s demands, too, will be in the clear. The wealthy and the well connected will have little difficulty securing legal representation, going to court, and obtaining injunctive relief in their own name if the Executive violates their rights. Consequently, the zone of lawlessness the majority has now authorized will disproportionately impact the poor, the uneducated, and the unpopular — i.e., those who may not have the wherewithal to lawyer up, and will all too often find themselves beholden to the Executive’s whims.
It is hard to know for certain whether the Republican majority understands the legal world it’s building and the power it has given to the president. My view, like Jackson’s, is that it is laying the groundwork for the exercise of arbitrary power, unaccountable save for the next election — an American-style presidential dictatorship.
What I Wrote
I wrote my column this week on masked ICE officers and how their assertion of the right to anonymity is an extension of the president’s belief in his own impunity:
As a federal agent, an ICE officer is a public servant whose ultimate responsibility lies with the people. And the people have the right to know who is operating in their government. If an ICE officer does not want to risk identification — if he does not want the public he serves to hold him accountable for his actions — then he can choose another line of work.
In the latest episode of my podcast with John Ganz, we discussed the 1997 political thriller “The Assignment.” And I joined my colleagues David French and Carlos Lozada to discuss President Trump’s foreign policy on The Opinions podcast.
Now Reading
Samantha Hancox-Li on the Supreme Court for Liberal Currents.
Manisha Sinha on Abraham Lincoln for The UnPopulist.
Y.L. Al-Sheikh on Zohran Mamdani’s victory in the Democratic mayoral primary in New York City for The Nation.
Sherrilyn Ifill on ICE agent terror for her Substack newsletter.
Jack Rakove on constitutional failure for Washington Monthly.
Photo of the Week
From a trip to New Orleans earlier this year.
Now Eating: Honey-Garlic Chicken
This comes, as usual, via NYT Cooking. It’s very easy to put together and tastes great with rice and a steamed vegetable. Perfect if, like me, you find yourself cooking on a deadline for small children.
Ingredients
-
2 chicken breasts, halved lengthwise, or 4 chicken cutlets (about 1 pound)
-
Salt and black pepper
-
2 tablespoons olive oil
-
2 tablespoons honey
-
2 tablespoons soy sauce
-
2 tablespoons apple cider, rice wine or white wine vinegar
-
3 to 4 large garlic cloves, minced or grated
-
2 tablespoons unsalted butter
-
Chopped fresh parsley, for garnish
Directions
Pat the chicken dry. Season all over with salt and pepper.
Heat the oil in a large (12-inch) skillet over medium-high for 1 to 2 minutes until hot and shimmering. Add the chicken and cook without moving until it’s golden brown on the bottom, about 5 minutes.
Use tongs to flip the chicken and cook until just cooked through, about 4 minutes.
While the chicken cooks on the second side, mix together 3 tablespoons of water, the honey and soy sauce in a measuring cup.
Transfer the cooked chicken to a plate and set aside.
Pour in the soy sauce mixture and let cook until the liquid reduces, about 1 minute. Add the vinegar, garlic and butter, stirring to melt and incorporate until thick and glossy, about 2 minutes more.
Return the chicken to the pan, leaving behind any accumulated juices on the plate, and turn to coat in the sauce. If the sauce is too thick, add the accumulated juices, then serve immediately, garnishing with the parsley, if desired.
Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief political correspondent for Slate magazine. He is based in Charlottesville, Va., and Washington. @jbouie
The post We Know Exactly Where the Supreme Court’s Change of Heart Has Come From appeared first on New York Times.
