Thursday, July 3, 2025

The Supreme Court, a big beautiful wealth transfer and police state, concentration camps.

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The Supreme Court will not save us

The 2024-25 Supreme Court term ended last week, with a series of important decisions announced in the final days. I’d like to highlight just one of those, from a case called Trump v. CASA. It’s the case that, more than any since the comically unprincipled decision on presidential immunity, makes me despair that the Supreme Court will not only fail to protect rule of law and the constitutional order, but will actively abet their destruction.

The substance of Trump v. CASA involves Trump’s attempt to undo birthright citizenship via executive order. However, the Supreme Court's decision only considered the limits of courts’ ability to issue injunctions, that is, orders commanding that a party do or not do something. Ultimately, the Supreme Court dramatically limited the ability of the judiciary to reign in illegal government conduct. 

Law professor Sam Bagenstos, writing for Brian Beutler’s Off Message newsletter, explains:

In Friday’s momentous Trump v. CASA, Inc. decision, the Supreme Court held that a federal-court injunction against a government policy must not be broader than necessary to give “complete relief” to the particular plaintiff who brought the suit. That ruling largely sounds the death knell for what we’ve come to call the “nationwide injunction”—an order by a single district judge that prohibits the government from implementing a challenged policy against anyone across the country, whether they joined the suit or not.

He further explains why it it matters that courts can no longer issue “nationwide” or “universal injunctions”:*

Absent the prospect of a nationwide injunction, the government can adopt a blatantly unconstitutional policy, get sued in a district court and lose, then stop enforcing the policy against the plaintiff who won, but keep enforcing the policy against everyone else. The government doesn’t have to appeal the district court’s judgment to a higher court, and the plaintiff, who got everything she could ask for, can’t appeal. If the government keeps enforcing the unconstitutional policy against other folks, maybe someone else will sue and win, but then the government will just stop enforcing the policy against that plaintiff as well, but keep enforcing it against everyone who hasn’t sued. Rinse and repeat. Without a nationwide injunction, or the prospect that a case will be appealed to the Supreme Court, the government will keep getting sued, keep losing, and keep enforcing an unconstitutional policy against anyone who has not yet had the wherewithal to come into court.

I think the Supreme Court reached its conclusion via unprincipled selection of a dumb methodology that was then applied badly. You can read about that in the dissents, the aforementioned Bagenstos essay, and this essay by law professor (and legal podcaster) Kate Shaw. But that’s (unfortunately) nothing new, and it’s not the reason I find the decision so alarming.

Some relevant back ground to help you make sense of my alarm:

1. Universal injunctions are not new. They were a thorn in the side of the Biden administration, badly hindering its ability to implement its policies. For example, universal injunctions were entered halting Biden administration policies on vaccines, immigration, climate-change cost estimates, and stimulus programs for farmers of color.
2. The Biden administration was not just impeded by universal injunctions obtained through even-handed operation of the courts. Instead, MAGA-allied litigants gleefully exploited loopholes to ensure decisions challenging Democratic policies would be made by MAGA-friendly judges. It probably sounds like a conspiracy theory, but it’s absolutely true.** This was a major, recurring theme of the Biden presidency. As Bagenstos states, “[s]uits seeking and obtaining nationwide orders—often from judges hand-picked by ideological plaintiffs for their hostility to the administration—created enormous and unjustified obstacles to governance.”
3. Understandably unhappy with that state of affairs, the Biden administration asked the Supreme Court to limit the use of universal injunctions. The Supreme Court declined, likely, I suspect because they wanted to see the Biden agenda impeded.

With that background out of the way, here’s Bagenstos again, putting it all together to explain what is so galling: 

. . . The Court has had many opportunities—both in the Biden administration and in the Trump administration—to tell lower courts they couldn't issue nationwide injunctions. . . . 

Why wait until this time, in this case? . . . 

* * *

When the [Trump] administration took these birthright citizenship cases to the Supreme Court, its lawyers did not challenge the lower court judges who all believe the executive order violates the fourteenth amendment—probably because they recognized that their argument was a loser even in a very right-wing Court that has delivered Trump some signature victories. They instead asked the Court to decide only the question of whether the nationwide remedy ordered by the lower courts went too far.

The Court did not have to accept that framing. Indeed, the justices often choose to decide a different question than the one presented by the appealing party. The justices could have agreed to take up the Trump administration’s request for a stay of the lower-court injunctions against the executive order, but they could have asked the parties to brief and argue the underlying merits of the constitutional dispute about birthright citizenship. . . . 

If the Court had decided the merits of the constitutional question, and ruled in accord with the longstanding interpretation of the fourteenth amendment, the nationwide injunction issue would have been practically irrelevant. The Supreme Court would have settled the issue.

If, by contrast, the Court had decided the merits of the constitutional question, and ruled against the longstanding interpretation of the fourteenth amendment, that would have been egregiously wrong in my view. But it, too, would have made the nationwide injunction issue irrelevant (because there would be nothing to enjoin). And by making such a ruling out in the open, the Court would have subjected itself to immense public criticism—something that would create an organizing and mobilizing opportunity for those challenging Trump’s agenda.

I doubt the justices would have exposed themselves in that way, on the basis of an argument broadly rejected across the legal community. But the Court did not ask the parties to brief and argue the constitutional issue. It resolved only the question Trump wanted them to resolve, in exactly the way Trump wanted them to resolve it, empowering Trump to continue enforcing his executive order against people who haven't sued yet. That's just indefensible manipulation, particularly given the power[] of the arguments that the executive order is unconstitutional. It’s hard to read it as anything other than a special favor or concession, and to an administration that has been extraordinarily contemptuous of the judiciary.

Whatever you think about nationwide injunctions, you should be upset that the Court chose this case to announce its new rule. And you should be upset that the Court has encouraged—indeed, played a central role in—the Trump administration's shameless efforts at manipulation.

* * * 

I’m pretty ambivalent about nationwide injunctions. But I’m not at all ambivalent about what the Court did last week. After passing up numerous opportunities to confront the nationwide-injunction question, it chose to reward the Trump administration’s manipulation of the docket and decide that question in a context that will only delay relief from a blatantly unconstitutional—even anti-constitutional—executive order. . . .

That tells us a lot about whose interests the justices intended to serve.

Shaw reaches a similar conclusion: 

Though often cloaked in a language of neutrality and humility, the conservative majority’s actions — in the critical discretionary choices these justices have made about what cases to take, when to intervene and what interpretive methods to use — speak more clearly than its rhetoric about the court’s conception of its own role, which is neither neutral nor humble.

And she offers a counterfactual thought experiment that helps clarify SCOTUS’s lawless approach here:

It seems clear that if a president issued an executive order seizing all citizens’ guns or prohibiting all religious worship, this Supreme Court would immediately take up the merits of that question and put an end to the executive action. It would not wait for class-action certification or scold lower courts about tailoring appropriate relief.

So this is what I want people to know: The Supreme Court chose to limit the power of the courts to restrain the President. It did so in a case that absolutely did not call for it, that is, a case involving an outrageously unconstitutional executive order (that happens to be at the very core of Trump’s white Christian nationalist agenda). And it did so after having declined a similar request made in more compelling circumstances from the Biden administration. Ultimately, this Supreme Court is radical, partisan, and utterly lawless, and we would be fools to expect it to adhere to principle in the future or to save the nation from collapse into authoritarianism.

Lest you think it is just me and a few commentators making dire predictions about what this decision means, here is an excerpt from Justice Jackson’s dissent:

This seems like the sort of decision you do not make unless you never expect to be out of power again. It’s bad, folks.

Footnote*

To be fair, there are a few ways besides nationwide injunctions that courts can provide broader relief, with class actions being the main example. However, those other options are harder and more time-consuming to invoke. Moreover, the Trump regime will oppose use of class actions as a substitute for nationwide injunctions–it has explicitly said as much. And class actions as a substitute for nationwide injunctions are likely to get a poor reception from SCOTUS when they eventually consider the issue–Justice Alito explicitly said as much in a concurrence joined by Justice Thomas.

Footnote ** 

Here’s how MAGA-aligned litigants are able to pick MAGA judges: 

Each federal district court hears cases only from within its geographic district. With the exception of Guam, every federal judicial district has multiple judges, and cases are typically assigned to judges within a district with some meaningful element of randomness.

However, there are instances where cases are not assigned to federal district court judges randomly. Some federal judicial districts are further subdivided into “divisions,” with some judges being largely dedicated to hearing cases from a certain division or divisions. There are places where, if you file a case in a particular division, you can be almost certain to get a particular judge. 

During the Biden presidency, MAGA-allied actors repeatedly exploited these circumstances to guarantee that their politicized cases would end up in front of MAGA-friendly judges. And those MAGA-friendly judges repeatedly ruled against the Biden administration, making Texas “a legal graveyard for Biden policies” and issuing nationwide injunctions that hamstrung the Biden administration’s agenda. The ruling invalidating the FDA’s approval of abortion medication mifepristone is an example. 

Republican funding bill update

The bill formerly known as the One Big Beautiful Bill Act, a name so dumb it insulted your intelligence every time you had to read or say it, has passed the Senate. It now moves on to the House, where at press time Republicans are struggling to find the votes to overcome procedural hurdles.

As reported by Heather Cox Richardson, Senate Democrats are being unusually blunt in their warnings about the Republican spending bill:

"This is the most deeply immoral piece of legislation I have ever voted on in my entire time in Congress,” said Senator Chris Murphy (D-CT).

“[W]e're debating a bill that’s going to cut healthcare for 16 million people. It's going to give a tax break to…massively wealthy people who don't need any more money. There are going to be kids who go hungry because of this bill. This is the biggest reduction in…nutrition benefits for kids in the history of the country.”...

“This bill is a farce,” said Senator Angus King (I-ME). “Imagine a bunch of guys sitting around a table, saying, ‘I've got a great idea. Let's give $32,000 worth of tax breaks to a millionaire and we’ll pay for it by taking health insurance away from lower-income and middle-income people. And to top it off, how about we cut food stamps, we cut SNAP, we cut food aid to people?’... I've been in this business of public policy now for 20 years, eight years as governor, 12 years in the United States Senate. I have never seen a bill this bad. I have never seen a bill that is this irresponsible, regressive, and downright cruel.”

* * * 

“This place feels to me, today, like a crime scene,” Senator Sheldon Whitehouse (D-RI) said on the floor of the Senate. “...This piece of legislation is corrupt. This piece of legislation is crooked. This piece of legislation is a rotten racket. This bill cooked up in back rooms, dropped at midnight, cloaked in fake numbers with huge handouts to big Republican donors. It loots our country for some of the least deserving people you could imagine. When I first got here, this chamber filled me with awe and wonderment. Today, I feel disgust.”

Along those same lines, Elizabeth Warren calls it “the largest transfer of wealth from the poorest to the richest in our nation’s history.”

But don't worry, Vice President JD Vance says that exploding the deficit and booting millions of people off health insurance will be worth it to terrorize immigrants:

Insofar as Vance suggests that the bill is not really about revenue, he's right. Public policy professor Don Moynihan explains that this isn’t so much a tax cut bill as it is “the domestic policy bill for the second Trump regime,” calling it “a massive piece of legislation that would fundamentally change America.” There is more at the link–I encourage you to check it out–but Moynihan makes a point that I don’t think is getting nearly enough attention:

Trump wants to direct an extraordinary amount of new money for ICE. Even as it is spread out over the next four years, the size of the spending and the rate of increase is so large that it defies easy understanding. For example, ICE will receive a 365% increase in detention, spending $45 billion. For context, this is approaching the combined annual budget for all 50 state prison systems. The current budget for the federal Bureau of Prisons is just over $8.3 billion. The ICE detention budget is larger than the total annual budget for USAID used to be. The ICE detention budget increase is larger than cuts in education, or for SNAP in the BBB. It is larger than cuts to NIH, CDC and cancer research combined. It is on the scale of the type of supplemental budgets that the US passed when engaged in foreign wars.

This will absolutely SUPERCHARGE the operations of ICE, and there’s a danger that this ushers in a police state.

Speaking of terrorizing immigrants . . .

Some of the money that Republicans are throwing at ICE will be used to open concentration camps. Here are some photos of the new Florida concentration camp, which will cost $450,000,000 a year to operate:

Republicans are selling merchandise celebrating the camps, which reminds me more than a little of lynching postcards. It's all so shameful and disgusting.

The United States has cages for the humans the president has said are "poisoning the blood of the country" and who masked gunmen without uniforms or badges are abducting. How do you think history is going to remember this?