Supreme Court’s nationwide injunction ruling fizzles as judges find new ways to stop Trump

Hyperventilating ran heavy in June after the Supreme Court ruled that courts had been too profligate in using nationwide injunctions to stop the president and ordered lower court judges to restrain themselves.

Justice Sonia Sotomayor called the decision an “invitation … to bypass the Constitution.” A law professor called it a “major blow” to the judicial branch’s ability to stop a president. One media outlet called the ruling a “blockbuster” victory for President Trump.

Three months later, the ruling has largely fizzled. Judges still find plenty of room to shut down Mr. Trump without resorting to the nationwide, or universal, injunctions that the high court criticized.

Some judges shifted to using class action lawsuits to stop presidential action. Others turned to vacatur, signifying that a government policy can be erased root and branch. Still others said the cases in front of them were special enough that they demanded nationwide injunctions, notwithstanding the Supreme Court’s scolding in the June ruling in Trump v. CASA.

“CASA decisively rejected the universal injunction. But it didn’t eliminate all forms of broad relief in federal court, especially class actions and vacatur of federal rules. That’s where the energy has now shifted,” said Samuel Bray, a law professor at the University of Chicago whose work was cited in the high court’s June ruling.

Howard Wasserman, a professor at Florida International University College of Law, said legal experts who studied universal injunctions haven’t been surprised.

“The court left open four ways in which broad injunctions are still possible. But you have to do a little bit more work to get it, and that’s what’s happening,” he said.

He said the high court’s ruling wasn’t for naught.

“We end up in the same place, but we got here by the right mechanism, and that matters,” he said. “We got here by doing the correct analysis.”

Mr. Bray said it’s too soon to determine where lower courts will find ways to substitute other blockades in cases where they used to issue universal injunctions.

There are some early indications, however.

The Washington Times reviewed 23 decisions since July 1 where judges grappled with the scope of relief they were asked to give.

Although most consented to the CASA decision, the judges delivered broad relief in 18 of the cases.

In just two of the cases reviewed by The Times, the judges said they were acting to limit their rulings in response to the high court’s CASA admonition.

Judge Julie Rubin, a Biden appointee to the court in Maryland, had a case challenging the Trump administration’s trims to the Education Department. She said the plaintiffs were asking the court to become a referee over presidential actions, crossing lines the Supreme Court laid out in CASA.

“The relief requested here raises a serious risk of doing precisely what the [Supreme] Court has cautioned the court to avoid. Ultimately, this court may not overreach its authority to order the Executive to act within the confines of its own,” Judge Rubin wrote.

Injunctions are court rulings that halt a president’s action. Usually, an injunction is supposed to be limited to the parties that sue.

As presidents have increasingly flexed unilateral executive powers in recent years, courts have responded with ever larger injunctions, blocking a president’s action for everyone, not just the plaintiffs.

In the cases that the high court decided in June, a series of plaintiffs had challenged Mr. Trump’s attempt to curtail government recognition of automatic citizenship for children born to illegal immigrant or temporary visitor parents.

Lower court judges moved quickly to slap nationwide injunctions, reasoning that it made no sense to have a child’s citizenship depend on whether they were born in a Democratic-led state that sued or a Republican-led state that didn’t or whether their parents were part of one of the activist groups that sued.

The justices delivered a scolding in Trump v. CASA, telling lower court judges they had gone too far. They said the power to issue nationwide injunctions “lacks a historical pedigree” and fell “outside the bounds” of a judge’s power.

They said judges still had class action lawsuits, which required plaintiffs to prove that all class members were in a similar situation. The high court left open other questions, such as when states were plaintiffs or when an agency’s action was being challenged under the Administrative Procedure Act, which requires the government to follow careful procedures when making policy decisions.

Judges moved quickly to exploit each of those.

Within weeks, four lower courts reexamined birthright citizenship and decided that a universal blockade was warranted in each case.

In New Hampshire and Maryland, federal district judges certified class actions.

In two other cases where states were plaintiffs, a federal district court in Massachusetts and the 9th U.S. Circuit Court of Appeals on the West Coast ruled that universal injunctions were warranted.

“No workable, narrower alternative to the injunction issued originally would provide complete relief to the plaintiffs in this case,” wrote Judge Leo Sorokin, who oversaw the case out of Massachusetts.

Elsewhere, judges have been quick to use the Administrative Procedure Act to shut down Trump actions wholesale.

“The recent Supreme Court case, Trump v. CASA, does not change the outcome,” U.S. District Judge Brendan Hurson ruled in a case in Maryland challenging Trump administration restrictions on Obamacare.

In Seattle, U.S. District Judge Ricardo Martinez shut down a Trump policy this month to block some temporary immigrants from signing up for welfare benefits. He said applying his ruling only to the plaintiffs would be impractical.

U.S. Judge Trina Thompson, in San Francisco, postponed the Homeland Security Department’s attempt to end a deportation amnesty program for migrants from Nepal, Honduras and Nicaragua. She said the Administrative Procedure Act allows judges to “vacate” an entire policy and that was what the case required.

“Setting aside an agency action is the standard remedy for APA cases,” she said.

During oral argument in the Supreme Court case in May, Justice Brett M. Kavanaugh hinted that the ruling might not be the seismic shift some were figuring. He said people would still get the answers they deserved from courts but the judges would have to work through more steps.

“This may all be a technicality,” he said.

He suggested it was still worth it.

“It complies with the rules,” he said. “I mean, the law — we care about technicalities.”

Josh Blackman, a professor at South Texas College of Law who was critical of the flood of universal injunctions, said the rush to certify class actions is worrying.

He said some judges approved them so quickly that he was “skeptical whether they went through all of the required factors.”

“I think the Supreme Court will be frustrated that lower courts have resurrected national injunctions as class actions. The Supreme Court is being resisted,” he said.

Other legal experts suggested that the high court may revisit the issue and attempt to rein in the states’ ability to sue, which could eliminate one of the remaining avenues for universal injunctions.

That leaves the Administrative Procedure Act, which has become the chief hurdle for the president in many of his executive action legal losses, according to data compiled by Adam Feldman, who runs Legalytics.

Mr. Wasserman said the issue is tricky for this Supreme Court.

He said Justice Kavanaugh and Chief Justice John G. Roberts Jr., who emerged from the circuit court in the District of Columbia, which handles a lot of Administrative Procedure Act cases, have signaled that vacating entire rules is valid.

It’s unclear where others, such as Justice Neil M. Gorsuch and Justice Amy Coney Barrett, stand. Justice Barrett, who wrote the chief opinion in the CASA case, relegated the Administrative Procedure Act to a single footnote, making clear the case didn’t affect that situation.