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PaperclipPerfector  5mo ago (text post)   31895 thread views

Culture War Roundup for the week of June 23, 2025

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Trump v. CASA, Inc.

So after this decision, what is actually the intended recourse for classes of individuals if the federal government subjects them to putative unconstitutional action (possibly even gish-gallopping different actions to achieve the same unconstitutional outcome)? I can see how the previous arrangement created an asymmetry in favour of case-and-jurisdiction shoppers, but the new one seems like it might equally create an asymmetry in favour of executive obsessions.

I understand that you are happy to see what you saw as an important weapon in your enemy's toolkit denied, but well, the enemy is best presumed to be crafty. If you were a progressive operative, could you imagine a way this decision could be turned against conservatives once you control the executive again?

You could always get a final ruling, rather than a preliminary injunction, from a court of competent jurisdiction.

If you say that getting a final ruling takes way too long - well, yes, that is a problem we urgently need to solve.

Per what the majority seemed to strongly imply, class actions are the new method, though Alito wants the requirements to remain strict for class certification. The somewhat jarring thing for me (not a lawyer) is that class action suits are NOT constitutionally mandated or enforced. It’s national law set by Congress authorizing them. So it was a little strange to me to see the SC “take away” the universal injunction ability from district courts on constitutional-ish grounds (really just a bit of semi tortured originalism plus some practical consideration) in favor of something decidedly extra-constitutionally grounded. For all the too-casual tone criticisms of Jackson’s dissent, she’s not really wrong in the narrow sense that this gives the administration permission to routinely ignore rulings against it in all non-party districts even if the action is blatantly illegal. Seemingly the majority is fine with this, and feels the delay created by class creation and certification and the actual arguing of the issue and the ruling (remember all this wrangling is over what to do in the time period before a case actually gets argued in full even at the district level) won’t be too excessive. That’s… honestly a little questionable. Kavanaugh wrote that he hopes the court will fill the gap somewhat by being more willing to take actual action, and action sooner, but it’s unclear if his fellow justices are actually on board with that. I think this is an error and they probably should have been okay with universal injunctions as long as they complied with some kind of fairly strict test.

IIRC around the end of the first Trump term, we got perilously close to dueling national injunctions for "must continue DACA" and "must immediately halt DACA", which isn't a sustainable way to run a national judiciary.

If you were a progressive operative, could you imagine a way this decision could be turned against conservatives once you control the executive again?

How do I get my guns in deep blue territory? The recourse there is the recourse here. If the answer is "you don't", that's also the answer here.

I don't think there is an intended recourse. I think the court was uncomfortable with the idea that some judge in Kansas City whom nobody has ever heard of could issue a national injunction preventing the president from exercising power anywhere, and they just ran with it. There was some suggestion that class actions should be used instead, but class actions are notoriously difficult due to class certification problems, and it seemed like the court was recommending class actions precisely because of these problems.

If I were litigating these matters, I'd take a "flood the zone" approach that would call into relief the practical problems of prohibiting national injunctions. It's just as easy for me to file a suit with 100 plaintiffs as it is one with 1 plaintiff, so I'd file suits with hundreds of named plaintiffs in friendly jurisdictions. I'd amend these suits regularly, as more plaintiffs came forward. Do this in enough districts and the multidistrict litigation panel will get involved and consolidate all the pending suits to one district for pretrial matters. If this happens, I then start filing suits in the unfriendly districts, which will immediately get stayed for enforcement under the standing order from the MDL judge.

If the cases aren't referred to MDL, which is a possibility if I'm only filing one case per district, it isn't necessarily a loss, because now I have 94 cases running in parallel. If more than one attorney takes this strategy, then it complicates things further. You could end up with hundreds of suits running in parallel, with hundreds of plaintiffs each, creating one massive headache for the government that will take forever to sort out and make the administration expend resources that it wouldn't have to if it were just one case in one district.

Have there been any notable cases of national injunctions being used to successfully gain value? All the ones I've heard of have been wielded by blues. If this tool hasn't been used by reds, why would removing it put reds in a worse position?

A lot of things seem to work this way lately; if a thing is only of value to one tribe, the other tribe has little incentive to preserve it.

... depends a lot on your definition of 'national injunction' and 'gain value'.

This at Table A-2 provides the most expansive definition of both, in that they were injunctions applying beyond the bounds of a courts jurisdiction and applied for at least some time, though because it measures them by what President was in place when the injunction was applied, not what President's administration started the policy that was enjoined (eg, several 'Biden-era' cases revolve around preliminary injunctions about military prohibitions on HIV-positive membership or joining, Harrison and Wilkins). (Contrast Harvard's 14 injunctions under Biden). Smashing those two lists together and focusing on the Biden admin, I'd count :

  • Texas v. United States, 515 F. Supp. 3d 627, Tipton's temporary restraining order and preliminary injunction against Biden's 100-day pause on immigration deportations. I don't think this ever got reviewed before it self-mooted, but I also don't think it actually stopped the admin from just doing it and saying it was enforcement discretion.
  • Faust v. Vilsack, 519 F. Supp. 3d 470, Holman v. Vilsack, No. 21-1085-STA-JAY, and Wynn v. Vilsack, 545 F. Supp. 3d 1271, loan forgiveness for racial minority farmers. I think this one held for at least the original program until it was repealed. Biden did work around it by using other programs or having supposedly race-neutral programs that only racial minorities were informed about, though.
  • Louisiana v. Biden, 543 F. Supp. 3d 388, ban on new oil drilling leases in public lands, preliminary injunction. Reversed on appeal to give more tailored restrictions, trial court drew it back to thirteen plaintiff states. Also an APA case. It's not clear if it actually worked; the EO in question didn't stop scheduled oil leases, but the plan for future auctions dropped dramatically.
  • Texas v. United States, 549 F. Supp. 3d 572, DACA, preliminary injunction on new admissions to the program. APA case, overturned on appeal.
  • Texas v. Biden, 554 F. Supp. 3d 818. Termination of Migration Protection Protocols (aka Remain in Mexico). Kinda an APA case? Overturned by SCOTUS and the Biden admin had just made a new memo terminating it anyway beforehand.
  • Texas v. United States, 555 F. Supp. 3d 351. Whether "shall" requires the administration to do anything to criminal illegal aliens, preliminary injunction. This is the one I keep yelling at Ben_Garrison about, you know how it ended.
  • Arizona v Biden, 40 F.4th 375, second verse, same as above except it was overturned at the circuit level.
  • Georgia v. Biden, 574 F. Supp. 3d 1337, federal workers vaccine mandate on the contracting side, preliminary injunct. 11th Circuit scaled it back to just the plaintiff organizations, their members, and the seven plaintiff states.
  • Feds for Med. Freedom v. Biden, 581 F. Supp. 3d 826, federal workers vaccine mandate on the employee side, preliminary injunction. Long procedural history, think the injunction was in place when the policy was repealed, mooting the arg.
  • Nebraska v. Biden, 52 F.4th 1044. HEROES Act loan forgivness, preliminary injunction by the appeals court. Upheld by SCOTUS.
  • Braidwood Mgmt. Inc. v. Becerra, 666 F. Supp. 3d 613. Contraception, abortion, and PReP mandate for ACA insurance coverage, weird procedural history since it's mostly a process question with RFRA stapled on the side, hence why it came up literally yesterday. The RFRA side got an injunction that looks like still applies but isn't universal? And the universal injunction on Appointments/APA was squashed early on appeal down to just the plaintiffs, overturned by SCOTUS.
  • Monticello Banking Co. v. Consumer Fin. Prot. Bureau, No. 6:23-CV-00148-KKC and Tex. Bankers Ass'n v. Consumer Fin. Prot. Bureau, No. 7:23-CV-00144. Something about the CFPB being unconstitutional and injunctions against data collection rules. I'm not even sure if these count as real national injunctions rather than just applying to a large organization with a lot of members.
  • Nuziard v. Minority Bus. Dev. Agency, 721 F. Supp. 3d 431. Another racially discriminatory aid program, preliminary injunction. I think they just made the discrimination a little more subtle, but technically the injunction applied to the end of the case and the plaintiffs got a result.
  • Career Colls. & Sch. of Texas v. U.S. Dep't of Educ., 98 F.4th 220. Higher Education Act loan forgiveness program. Preliminary injunction on appeal, under the APA. Currently at SCOTUS.
  • Alaska v. U.S. Dep't of Educ., No. 24-1057-DDC-ADM, SAVE higher education loan forgiveness program. Preliminary injunction, under the APA. Stayed on appeal, though Nebraska effectively covered the same ground eventually.
  • Missouri v. Biden, 738 F. Supp. 3d 1113, FEEL higher education loan income-based repayment program. Preliminary injunction, under the APA. I think upheld in 8th Circuit
  • Associated Gen. Contractors of America v. U.S. Dep't of Labor, No. 5:23-CV-0272-C. Something really technical about treating truckers like mechanics for 'locally prevailing wages and benefits' rules? Preliminary injunction under the APA, appeals are currently stayed.
  • Tennessee v. Becerra, No. 1:24cv161-LG-BWR. Including gender identity to Title IX (and indirectly, the ACA). Preliminary injunction under the APA. Probably mooted by the election.
  • Tex. Top Cop Shop, Inc. v. Garland, No. 4:24-CV-478. Corporate Transparency Act beneficial owner rule. Commerce clause challenge, the poor bastards. Stayed by SCOTUS, with Kavanaugh specifically writing this as an example of universal injunctions bad.
  • EDIT: All. for Hippocratic Med., 668 F. Supp. 3d at 560. Abortion pill FDA approval under APA, technically a nation-wide stay, but had the effect of an injunction. Got smacked down by SCOTUS./EDIT

Honorable mentions:

  • Price v. Barr, 514 F. Supp. 3d 171, permanent injunction against rule requiring permit to film in national parks, reversed on appeal. Not really a red-tribe-blue-tribe thing, at least directly; one of the few places I'd put myself and Merrick Garland on the same side.
  • Arizona by and through Brnovich v. Ctrs. for Disease Control & Prevention, 2022 WL 1276141. If you want to find anything on this, look for "Title 42 Immigration Case", or this clusterfuck. The preliminary injunction itself was against a Trump-era rule about immigration under COVID, but Biden hadn't officially stopped it, but Biden was defending or 'defending' it.

So there's a lot of cases, here. How you analyze them's going to depend on what you're looking for. Literally any case with an injunction broader than the plaintiffs that wasn't immediately stayed? I think you get somewhere around 15-17 cases, on about five major topics. Cases where this actually worked, if only until final review, cuts out at least five. In one sense it's damning that some of these injunctions got overturned by higher courts... but does that mean that the lower court got it wrong, the higher court got it wrong, or just that SCOTUS was trying to push the CASA button then?

Cases that would have changed if CASA was decided first? A lot of these are APA challenges that CASA specifically sets aside for future discussion, another handful were already being drilled down to their plaintiff states.

Cases that mattered? I dunno.

Wasn't there that one Texas judge all the conservatives kept shopping to?

The one who banned the abortion pill?

Judge shopping is much broader than national injunctions and will continue.

A few from the fifth circuit in the Abbott v Feds standoff under the Biden admin. I don't think it made any difference in the end.

I'm not familiar enough with the US anymore to know if what you say about reds (not) wielding injunctions is accurate, but one could imagine the theoretical possibility playing a role even if reds never did it, if, for example, we posit that blues had a more accurate picture of what the different jurisdictions could do and therefore avoided taking executive steps they know would be stopped by injunction.

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