I’ve now read the opinions in Trump v. CASA Inc., albeit quickly. (I also listened to the oral arguments.)
(As a preface, let me observe that sometimes my comments on court cases might plausibly be interpreted as attempts to “calm people down” or assert that a particular decision “isn’t that bad.” That is never my actual intent. What I’m after is correcting misunderstandings of the causes, operation, meanings, and implications of court decisions — and it happens that the greatest number of those misunderstandings tend to come from people who are reacting most strongly to a given case. But people’s emotional reactions to most of these decisions are entirely natural and appropriate, and usually I share them.)
Trump v. CASA Inc. is a narrow decision concerning a narrow procedural issue. It is an interlocutory appeal (that is, an appeal of a particular order or ruling in the middle of a case, rather than at its end) concerning one alleged error made by the trial court. While the underlying case itself concerns a huge, absolutely crucial issue (birthright citizenship under the 14th Amendment), *none* of the parties argued that issue in this appeal, and the court explicitly did not address it at this stage of the proceedings. (I suspect they are going to have to address it soon enough.)
The ultimate core of the decision is this: a federal court, when issuing any sort of injunction in any sort of case, can give such injunctive relief only to the actual parties in the lawsuit, not to anyone else.
This particular case involved *preliminary* injunctions, that is, orders granted before the case is actually heard and its actual merits adjudicated. A preliminary injunction is emergency relief and is supposed to be temporary, awaiting final disposition of the whole case. It is true that courts usually grant preliminary injunctions in cases where they think the plaintiff/petitioner is likely to win the eventual case, but preliminary injunctions have their own special rules, and there are numerous cases where the final decision has actually gone the other way.
If you think that a court who sides with Party X in a case involving a preliminary injunction or other intermediate ruling is doing so because they favor Party X in the eventual lawsuit, you just don’t understand the way courts operate.
Unfortunately, the media typically treat decisions on preliminary injunctions as decisions on the merits of the case, and headlines often say things like, “Court Allows X to do Y”, or “Court Sides with X”, or “X Wins Court’s Approval”, all of which are massively misleading. I have lost count of the number of times I have got on social media to repeat this sentence: “A ruling on a preliminary injunction is not a decision on the merits.”
Now: so-called “universal injunctions” (that is, trial-level injunctions forbidding a party (usually the federal government) from doing something anywhere in the country) are a relatively recent phenomenon, which have become increasingly frequent as time goes on. They were almost unheard of before 1963. Between 1963 and 2023 there were 127 of them, of which 96 (76%) were made since 2001. They have become a favorite tool of the political opponents of any presidential administration: pick a court likely to be hostile towards a given presidential action (say, in Texas if the president is a Democrat, in northern California if the president is a Republican), sue against that action in that court, and the court then grants a nationwide injunction, preventing the administration from acting until the case is over. The ACA was held up in this way, as were Biden Administration actions concerning student loans. Pretty much all presidents hate them.
Telling courts that they can issue orders only concerning the parties to the case does *not* mean (as I’ve heard some claim) that presidents can now be lawless without any sort of check. Instead, what should happen is what the ACLU did just a few hours after this decision was issued: file a class action lawsuit (under Rule 23 of the Federal Rules of Procedure), get the class certified, and then get an injunction covering the entire class of plaintiffs. Such an injunction would not violate the Court’s decision in CASA, and would cover just about the same group of persons the universal injunctions did.
(The name of the lawsuit is Barbara v. Trump, and it was filed in federal court in New Hampshire yesterday. The class asserted in the complaint is “All current and future persons who are born on or after February 20, 2025, where (1) that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, as well as the parents (including expectant parents) of those persons”. This is the class of people actually named in the relevant presidential Executive Order.)
In fact, the Court’s real objection to the “universal injunctions” is that they are an end-run around the procedures of Rule 23. When a court certifies a class action, it is verifying that the members of the class are (1) essentially similar in how they are affected by the defendant’s actions and the eventual outcome of the case, and (2) too numerous to practicably file separately. But without those procedures, a plaintiff who is an eccentric outlier can claim to be speaking for millions whose interests he does not actually represent. (Again, think about some of those cases whose injunctions you *disagree* with, and you’ll see my point.) Justice Sotomayor wrote in her dissent, and I agree, that it would have been relatively easy to certify a class in CASA, and thus an easy injunction to grant. But the majority decision says that this is exactly why the Rule 23 procedures should have been followed: the trial court should have been given the opportunity to investigate the matter and determine whether or not the class should be certified.
Again, I’m not in the business of making people feel better about a case. But my best prediction is that the class will be certified relatively soon, the preliminary injunction will be granted right after that, and then we’ll be in the same procedural position we had before this decision. But this time, there’ll be no basis for setting the injunction aside, and an appeal on that basis will fail. Eventually the Court is going to have to rule on the birthright citizenship issue itself, and my bet is that they’re going to declare the executive order to be unconstitutional. And that *will* be a national decision.
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Kenneth Schneyer 
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