5 ms·

>and the supreme court itself reserves the right to make universal injunctions on iterim orders/policies until they decide the case on a full hearing (at which

>and the supreme court itself reserves the right to make universal injunctions on iterim orders/policies until they decide the case on a full hearing (at which time they can invalide the law/order) Doesn't that require an appeal? Or are you saying they'd go put a policy or law on hold even if there wasn't an open case after a lower judge ruled against them and the government chose not to appeal so as to not risk losing more broadly. Seems like the takeaway here for any would-be executive-overreachers is "lose a couple cases affecting a handful of plaintiffs and ignore those loses." IIRC the general trend for getting a class certified for a class action is also in the "make it harder to do" direction.

mjburgess 1y ago
Not necessarily, though I'd guess what Kavanaugh imagines is that many states will obtain state-wide injunctions that make executing an order like this practically impossible (indeed, that is what the SC has said should happen next) -- and, imv, he believes there is a nation-wide class in-play and this will go to a nation-wide class action. At which time the executive will be entirely boxed in. Given this, the executive has to ask the SC to stay some of these, or grant cert., or there's practically no EO in play. It's important to remember here that states are relevant parties to these suits against the federal government, and there are enough of them to enjoin any practical excerise of executive action. The SC has basically asserted that only it will, temporarily or permanently, review those cases where there is a federal-level split on these issues requiring a universal solution. I have a feeling he's also hinting that the SC will, in light of this, look at how it handles temporary orders -- he has, at least said, it is now obligated to be very proactive in these areas and take on all such temporary requests to enjoin the executive There's also the APA question, I don't fully understand judicial review in these cases -- but iirc, the APA grants courts to order the executive to stop (or to take) action on such policies. So when the EO has a "policy implementation" people can bring suits under the APA to enjoin, which is equivalent to a universal injunction.
- majormajor 1y ago
  In that case than this change seems entirely pointless. Obviously there are plenty of states that are highly partisan in either direction. So it seems like the judicious thing to do would've been like "the status quo is fine, rulings that higher courts think are egregious can still be stayed pending appeal." It's hard to believe it's so innocuous given that (a) it is such a new approach to the issue for a not-new feature of US law and (b) the broader literature being pushed by the people pushing for this change. Instead it feels like the song and dance around how some Senators would try to get SC justice nominees to say they wouldn't overturn Roe v Wade - distractive performance that's utterly non-binding and an obvious smokescreen.
  - mjburgess 1y ago
    The SC was asked to consider a relatively narrow question of what the limits on equitable remindies in the discrict courts are. In a significant majority of cases they've exceeded their clear authority on anything like a plausible reading of what non-constitutional courts are supposed to do. Ironically, imv, I think in this case, they didnt. This was, imv, a case where a universal injunctions was actually within the power of the disctict court -- because (and here Sotomayor is correct) the states were being obligated to take on burdens that "crossed state lines" and a complete remedy to relieve them of these burdens actually requires a universal injunction. So, imv, under the history of what equitable remedies are supposed to do, this would be one rare case where the action of the courts could be legally defensible. However, the SC was extremely fed up with district courts sending inumerable number of cases their way -- trigger happy judges at the distict level deciding they're going to rule for the whole US in a federal system. So, by this point, they've tried many times to stop it, and it hadnt worked. Here all they said is that you can have UIs only where congress makes explicit that courts have this power. They have done something kinda similar in the APA (creating judicial review of exec action), and can do again here (eg., a democratic congress could give the power in immigration cases; I think its plausible something like this happens). They also themselves retain the right to make such orders. So they have only really moved where in the system such action is taken, retaining district court's rights to still -- very broadly -- give quite wide injunctions. And congress still has the power to empower the courts (though, as per usual, Thomas indicates he's on crazy pills and implies he would prevent congress from doing that -- that's not a serious outcome though). Given the problems they faced with district courts, something had to give. They were persuaded, plausibly correctly, that there are enough avenues to prevent this executive overreach without empowering the lowest rung of judges to rule for the whole of the US.
- Balooga 1y ago
  Can the executive branch force arbitration via presidential order to limit the ability to form class action suites?
  - mjburgess 1y ago
    No, it isn't that sort of civil class action. You can see the relevant law here: https://www.law.cornell.edu/rules/frcp/rule_23 https://www.law.cornell.edu/rules/frcp/rule_23
belorn 1y ago
I don't live in the US, but can't the winning party still appeal? Here in Sweden it is not uncommon that both parties appeal important cases, sometimes with the explicit goal of getting the highest court to make a judgement. Some cases are just more important to get the highest courts judgement, especially those related to government, than holding onto a win from a lower court.
- anon84873628 1y ago
  Sure. The problem is all the other people left vulnerable in the meantime, since it can take a long time for the appeals process to complete. These injunctions are used in cases where the judge believes "irreparable harm" harm is imminent for a large group of people. It is not realistic to expect every person (or at least one person in every state/district) to hire a lawyer and argue the case to protect themselves.

mjburgess 1y ago

Not necessarily, though I'd guess what Kavanaugh imagines is that many states will obtain state-wide injunctions that make executing an order like this practically impossible (indeed, that is what the SC has said should happen next) -- and, imv, he believes there is a nation-wide class in-play and this will go to a nation-wide class action. At which time the executive will be entirely boxed in. Given this, the executive has to ask the SC to stay some of these, or grant cert., or there's practically no EO in play. It's important to remember here that states are relevant parties to these suits against the federal government, and there are enough of them to enjoin any practical excerise of executive action. The SC has basically asserted that only it will, temporarily or permanently, review those cases where there is a federal-level split on these issues requiring a universal solution. I have a feeling he's also hinting that the SC will, in light of this, look at how it handles temporary orders -- he has, at least said, it is now obligated to be very proactive in these areas and take on all such temporary requests to enjoin the executive There's also the APA question, I don't fully understand judicial review in these cases -- but iirc, the APA grants courts to order the executive to stop (or to take) action on such policies. So when the EO has a "policy implementation" people can bring suits under the APA to enjoin, which is equivalent to a universal injunction.

majormajor 1y ago
In that case than this change seems entirely pointless. Obviously there are plenty of states that are highly partisan in either direction. So it seems like the judicious thing to do would've been like "the status quo is fine, rulings that higher courts think are egregious can still be stayed pending appeal." It's hard to believe it's so innocuous given that (a) it is such a new approach to the issue for a not-new feature of US law and (b) the broader literature being pushed by the people pushing for this change. Instead it feels like the song and dance around how some Senators would try to get SC justice nominees to say they wouldn't overturn Roe v Wade - distractive performance that's utterly non-binding and an obvious smokescreen.
- mjburgess 1y ago
  The SC was asked to consider a relatively narrow question of what the limits on equitable remindies in the discrict courts are. In a significant majority of cases they've exceeded their clear authority on anything like a plausible reading of what non-constitutional courts are supposed to do. Ironically, imv, I think in this case, they didnt. This was, imv, a case where a universal injunctions was actually within the power of the disctict court -- because (and here Sotomayor is correct) the states were being obligated to take on burdens that "crossed state lines" and a complete remedy to relieve them of these burdens actually requires a universal injunction. So, imv, under the history of what equitable remedies are supposed to do, this would be one rare case where the action of the courts could be legally defensible. However, the SC was extremely fed up with district courts sending inumerable number of cases their way -- trigger happy judges at the distict level deciding they're going to rule for the whole US in a federal system. So, by this point, they've tried many times to stop it, and it hadnt worked. Here all they said is that you can have UIs only where congress makes explicit that courts have this power. They have done something kinda similar in the APA (creating judicial review of exec action), and can do again here (eg., a democratic congress could give the power in immigration cases; I think its plausible something like this happens). They also themselves retain the right to make such orders. So they have only really moved where in the system such action is taken, retaining district court's rights to still -- very broadly -- give quite wide injunctions. And congress still has the power to empower the courts (though, as per usual, Thomas indicates he's on crazy pills and implies he would prevent congress from doing that -- that's not a serious outcome though). Given the problems they faced with district courts, something had to give. They were persuaded, plausibly correctly, that there are enough avenues to prevent this executive overreach without empowering the lowest rung of judges to rule for the whole of the US.
Balooga 1y ago
Can the executive branch force arbitration via presidential order to limit the ability to form class action suites?
- mjburgess 1y ago
  No, it isn't that sort of civil class action. You can see the relevant law here: https://www.law.cornell.edu/rules/frcp/rule_23 https://www.law.cornell.edu/rules/frcp/rule_23

belorn 1y ago

I don't live in the US, but can't the winning party still appeal? Here in Sweden it is not uncommon that both parties appeal important cases, sometimes with the explicit goal of getting the highest court to make a judgement. Some cases are just more important to get the highest courts judgement, especially those related to government, than holding onto a win from a lower court.

anon84873628 1y ago
Sure. The problem is all the other people left vulnerable in the meantime, since it can take a long time for the appeals process to complete. These injunctions are used in cases where the judge believes "irreparable harm" harm is imminent for a large group of people. It is not realistic to expect every person (or at least one person in every state/district) to hire a lawyer and argue the case to protect themselves.