Justice Jackson’s dissent in Trump v. CASA warns of “executive lawlessness” unchecked—unless Congress, courts and the people act now to protect democracy for all.
The Supreme Court’s decision in Trump v. CASA, the birthright citizenship case, had little to do with birthright citizenship. It instead handed a far more dangerous victory to President Trump by gutting the power of lower courts to hold back his unlawful actions, holding that lower courts can no longer issue “nationwide” or “universal injunctions.”
To understand exactly how this prohibition will help empower Trump, let’s consider how a different hypothetical Trump policy would play out in this new system.
Imagine Trump issued a new executive order banning women from registering to vote. Under this hypothetical order, only those women already registered to vote could continue voting, and they could not register again if they moved or had a name change. Women who were not already registered could never register to vote or access the polls absent a court order allowing them to. So, in this hypothetical, what would happen next?
First, you’d hear an obvious widespread outcry that this was patently unconstitutional—for many reasons. The 19th Amendment clearly prohibits discrimination at the polls on account of sex. Moreover, voter registration is handled by state and local governments, so it wouldn’t even be appropriate for Trump to try to dictate such processes at the federal level.
Lawsuits would almost immediately be filed. There might be a suit from women in the military who have to move around a lot. There might be a suit from women who are currently engaged to marry and planning to change their name. There might be a suit from some 18-year-olds who were just about to register to vote. Cities and states would likewise most likely join the fight to protect their oversight of the voter registration process.
Judges from across the political spectrum would likely agree that the order was unconstitutional. But thanks to Trump v. CASA, what they could do about it would be severely hampered.
This is the legal framework the Supreme Court has now set up for us: When Trump—or any future president—takes flagrantly unlawful actions against us, the only way to stop it is for each and every person affected to file their lawsuit.
Before this decision, a judge could issue what’s commonly called a nationwide or universal injunction. Such an injunction “enjoins” a policy, blocking it from being enforced at all. In that way, a universal injunction would prevent Trump from enforcing the illegal executive order on anybody.
But after Trump v. CASA, lower courts can only enjoin the law on behalf of the people who file the suit.
That means only the specific women who hired or partnered with law firms to file a lawsuit would receive relief to register to vote. A judge likely could not simply proclaim that the order appears unconstitutional on its face and protect all women from it—or even all women service members, or all betrothed women, or all young women. Every single individual woman in the country would have to file their own lawsuit or join something like a class-action lawsuit if they didn’t want the executive order to apply to them.
Similarly, a judge might only be able to give relief to the states and cities who filed suit, but not others. This would create a map where there are states in which women could register to vote and states in which they could not.
At best, this would result in a confusing patchwork of legal applicability, with each woman’s right to vote being different depending upon whether they were part of a lawsuit or not and where they live. Even if a court found the executive order unconstitutional for any woman or group of women, Trump could continue to prohibit other women from registering to vote.
It goes without saying how dangerous it would be for a president to be prohibited from taking illegal action against some people, but be unobstructed from continuing forward with the same illegal action against others.
You might think the Supreme Court could still just weigh in to solve this problem. For better or worse, however, our system is set up so that only the losing party can appeal. Why would the Trump administration invite the possibility of losing on a larger scale, if it could just continue to get away with illegal activity against everyone who wasn’t party to the case? It wouldn’t matter that the Supreme Court could still issue universal injunctions if there’s no way to advance the case to their doorstep—except by losing.
But this is the legal framework the Supreme Court has now set up for us: When Trump—or any future president—takes flagrantly unlawful actions against us, the only way to stop it is for each and every person affected to file their lawsuit. This will create a nation in which only people who can afford legal representation, who live in certain states, or who happen to hold the same political views as the sitting president enjoy the full protection of the Constitution.
Alongside the 2024 Supreme Court ruling granting broad presidential immunity, this new limitation to the power of the judiciary is a devastating blow to the core checks and balances of our 250-year-old democracy.
How Advocates Plan to Challenge Executive Lawlessness
This does not mean the fight is over.
Immigrant advocates were prepared for the CASA ruling and immediately tried to fight the birthright citizenship executive order through a class action, albeit a more complex and unreliable method to challenge unlawful presidential actions.
Many others have argued for creative approaches to litigation, like lawsuits filed by associations or states on behalf of their members or residents. Judges could also still toss out agency rules under the Administrative Procedure Act, as arch-conservative Judge Matthew Kacsmaryk did last month to a Biden administration rule protecting the privacy of abortion patients.
No doubt there will be attempts to give lower courts workarounds to provide the broadest relief possible, but they will still likely fall short of the universal relief now prohibited.
Congress could likewise pass a law dictating when and how universal injunctions can and must be issued to outright counter this ruling. We should all be prepared to fight for reforms that override this decision and ensure the courts can do their proper job of protecting everyone under the law.
Perhaps most importantly, the Senate must heighten their scrutiny of every loyalist judicial nominee selected by this administration to sit on the federal bench. Nominees like Emil Bove have a track record of express disregard for court orders to ensure obedience to Trump, not the law. In the face of diminishing checks against the executive branch, standing against such nominees means standing for the rule of law.
In concluding her dissent, Justice Ketanji Brown Jackson warns: “… if judges must allow the Executive to act unlawfully in some circumstances, as the Court concludes today, executive lawlessness will flourish, and from there, it is not difficult to predict how this all ends. Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.”
We, the people, must heed Justice Jackson’s grave warning and stand firm now more than ever in the fight for our democracy.
