Cogito Ergo Non Serviam
Supremes Hand Executive More Power
Last week, the Supreme Court handed the executive branch even more power than it has taken from Congress in recent years. The move was part of a case involving an executive order limiting birthright citizenship. The Supremes have held that a district court can issue an injuction staying an executive action but that injunction only applies to the case before it. Heretofore, the injunction applied nationwide. The Repubilcan Party claims this reins in radical judges, but all it really does is let the exeucit vemake whatever rules it wants and only the Supreme Court can stop it on a national basis. This will result in an unworkable patchwork of regional injunctions that will boost the number of cases the Supreme Court must hear each term.
The way the system worked until last week is pretty clear. If there is an executive order or other non-legislative act that will affect the implementation of a law, a district court could prevent that order from going into effect until the case could be heard. That simply keeps the status quo that existed before the order in place. If the case is found for the plaintiff, the order is eliminated or limited. If not, the order goes into effect. This can then be appealled to the appellate courts and from there the Supreme Court. As the case goes up the ladder, the injunctions are often kept in place because it is less disruptive to society as a whole to keep the status quo ante.
What the Supremes have done is ridiculous. It is a plea to fill the courts with lawsuits that would not be necessary under the old system. For example, if a plaintiff goes to court for relief from an order of the executive, the court can still issue an injunction but it only affects the parties to the case, at best, it applies only in that district. If there are a thousand plaintiffs with the same set of facts (say employees at a firm that is entirely within the judicial district), a thousand cases will have to be filed for each of them to have an injunction apply to them.
Things get more interesting if the different plaintiffs live in different jurisdictions. The Southern District of New York may have an injunction in place while the Eastern District of New York does not. That means that the law works one way in Manhattan and another in Brooklyn. Now, add in the oither 92 federal judicial districts, and one can see how cumbersome this is.
While it is true, to refer back to the thousand employee example, that a class-action suit can reduce the number of cases, getting a class certification is not easily done. For a handful of instances, it will be an option. For most, it will not.
Moreover, the opinion written by Amy Coney Barrett has a huge hole in it, as a lot of legal fudging does. She held that a court may issue an injunction but it cannot be "broader than necessary to provide complete relief" to the parties in the case. Like a lot of legal imprecision, this says there is a line beyond which such behavior is not acceptable. Madam Justice simply failed to say where that line is. Future litigation will decide where that gets drawn, after cases are heard and lives affected because no one knows where the boundary is.
But above all, this ruling gives the executive the power to do as it likes, and it is up to the individuals affected to run to the courthouse for relief. Before, it was sufficient for a few of them to do so. Now, if one is not a party to a case, there is no injunctive relief. This should keep demand for legal representation high, a decision to ensure full employment for lawyers.
Finally, the Supreme Court does not hear every case that it receives from the appellate courts. When the Supremes do that, the Ninth Circuit and the Fifth Circuit may well have different legal situations. When it comes to birthright citizenship, a national not state concern, different situations will make administration of the legal system almost impossible.amy coney
© Copyright 2025 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Ubuntu Linux.
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