Judges keep blocking Trump’s policies despite US Supreme Court injunction curbs

President Donald Trump called the US Supreme Court’s June 27 decision limiting the ability of federal judges to use nationwide injunctions to block his policies “a monumental victory”, but his legal win may be less definitive than it first appeared.

The Supreme Court’s decision

curtailed the ability of judges to issue so-called universal injunctions that can stop the government from enforcing a policy against anyone, anywhere in the entire country.

The Trump administration said it would move quickly to challenge such injunctions. However, the ruling by the court’s 6-3 conservative majority contained exceptions, allowing federal judges to continue to issue sweeping rulings blocking key parts of the Republican president’s agenda.

In the short time since the ruling, lower-court judges have already blocked Mr Trump’s asylum ban at the US-Mexico border, prevented his administration from ending temporary deportation protections for Haitian migrants and forced the government to restore health websites deemed to run afoul of Mr Trump’s efforts to squash “gender ideology”.

One of the biggest tests of the impact of the Supreme Court’s ruling in Trump v. Casa will come on July 10, when a federal judge in New Hampshire will consider whether to prevent Mr Trump’s executive order

curtailing birthright citizenship

from taking effect nationally on July 27.

That executive order was at the heart of the Supreme Court’s ruling, which did not address the legality of the policy, but held that judges likely lack authority to issue universal injunctions and ordered three judges to reconsider rulings blocking the policy nationwide.

Issued on his first day back in office in January, the order directs federal agencies to refuse to recognise the citizenship of children born in the United States who do not have at least one parent who is an American citizen or lawful permanent resident.

Class status

The plaintiffs in the New Hampshire birthright citizenship case are looking to seize upon one of the major exceptions to the Supreme Court’s ruling. They argue it allows judges to continue to block Mr Trump’s policies on a nationwide basis in class action lawsuits.

The lawsuit, which was filed by the American Civil Liberties Union (ACLU) and others hours after the Supreme Court ruled, seeks class action status on behalf of babies who would be subject to Mr Trump’s executive order and their parents. 

The plaintiffs are asking US District Judge Joseph Laplante, who previously issued a more narrow injunction blocking Mr Trump’s order, to go further this time by allowing the plaintiffs to sue as a nationwide class and issuing an order blocking Mr Trump’s ban from being enforced against members of the class.

At least one other judge has already followed this formula.

On July 2, US District Judge Randolph Moss in Washington determined that Mr Trump’s denial of asylum to migrants on the southern border exceeded the president’s authority.

He then certified a class that covered all individuals subject to the presidential proclamation on asylum and issued an injunction to protect the class - effectively a nationwide injunction.

The administration appealed the ruling, which White House aide Stephen Miller called a judge’s attempt to “circumvent” the Supreme Court’s ruling by recognising “a protected global ‘class’ entitled to admission into the United States”.

“I think there’s going to be a lot more class actions,” said Mr Lee Gelernt, an attorney with the ACLU, which brought the asylum case. 

Class actions must follow what is known as Rule 23, which requires the plaintiffs to meet several elements including proving that the proposed class members suffered the same injury. Conservative Supreme Court Justice Samuel Alito warned lower courts against certifying nationwide classes without “scrupulous adherence to the rigors of Rule 23”.

The process to certify a class can often take months. A senior White House official told Reuters the administration will be watching class certification decisions closely and plans to aggressively challenge them to prevent abuse of the process.

The government says the named class plaintiffs in the New Hampshire case are too different from one another to be able to proceed as a class action. They include an asylum seeker and someone on a student visa.

Judges have used other legal tools to block Trump administration policies on a nationwide basis, including by finding the government failed to comply with administrative law, another exception in the Supreme Court’s ban on injunctions.

Judges did so in two separate rulings last week blocking the Trump administration from ending a program that allows a half million Haitians to stay and work temporarily in the United States, and requiring the US Department of Health and Human Services to restore government websites that had been scrubbed early in Mr Trump’s tenure following an executive order.

Separately, on July 2, US District Judge Brian Murphy during a hearing in Boston raised the possibility that he could on the same basis continue to block the US Department of Defence from sharply cutting federal research funding provided to universities throughout the country.

“There’s a strong argument that Casa doesn’t apply at all,” Judge Murphy said. REUTERS