Trump v. CASA Allows National Injunctions to Protect "Newborns" -- So, How Can District Court Judges Drive a Truck through That Loophole?

Contrary to the popular reporting of Trump v. CASA, the Supreme Court's ruling has not eliminated or even curtailed the careful and deliberative issuance of national injunctions.  In fact, I argue that a careful reading of CASA provides guidance for the expansion of that authority.  

District and Circuit Courts now have an affirmative duty to interpret the Court's reasoning in CASA to determine, on a case-by-case basis, if a national injunction can be issued, then, if warranted, to issue it.  Though clearly not for the purposes of delay or policy-making -- notwithstanding the fact that a judge's true, unexpressed intentions can never be known -- the lower courts can and must use their interpretive authority and discretion to protect constitutional rights through national injunctions, particularly when irreparable harm to foundational constitutional rights of children could result otherwise.  The Supreme Court now commands this.

Justice Amy Vivian Coney Barrett, writing for the 6-3 majority, defines a "universal injunction" or a national injunction as an order that prohibits the enforcement of a law or policy against everyone nationwide (not just the specific parties in the case).  She states that this "likely exceed[s] the equitable authority that Congress has given to federal courts" because, under the theory of Original Construction, federal courts have equitable powers (those not found explicitly in law, but which seek fundamental fairness at the discretion of the court) that existed only at the inception of the republic. 
She states that a universal injunction may be issued when there is a "claim of extraordinary and imminent irreparable harm."  She cites examples of injunctions which do pass this constitutional test with:

These injunctions, after all, protect newborns from the exceptional, irreparable harm associated with losing a foundational constitutional right and its immediate benefits. They thus honor the most basic value of our constitutional system: They keep the Government within the bounds of law. Marbury v. Madison, 1 Cranch 137, 163 (1803).

That Justice Barrett chose this particular example cannot be ignored.  One could properly conclude that her choice was deliberately made to illustrate application of the Court's reasoning to the constitutional right sought to be vindicated by CASA -- the birthright citizenship incorporated into the 14th Amendment -- as well as the need for a national injunction to protect the overreach of the relevant executive order.  What rights are more foundational to newborns than their very citizenship and what more exceptional, immediate and irreparable harm could be done to a child that the 14th Amendment deems to be a US citizen than the immediate -- upon birth -- rescission of that citizenship and all of its benefits that Originalists consider to be sacrosanct?

The inclusion of this example in the core reasoning of CASA leads to an interpretation of CASA that argues for the necessity of issuing national injunctions, particularly when immediate and irreparable harm to the constitutional rights of newborns is concerned.

Chief Justice Roberts echoes the call for the courts to use their interpretive powers to carry out the will of the people as expressed in statute (and, by extension, the constitution) with:

Indeed, the Framers crafted the Constitution to ensure that federal judges could exercise judgment free from the influence of the political branches. See The Federalist, No. 78, at 522-525. They were to construe the law with “[c]lear heads . . . and honest hearts,” not with an eye to policy preferences that had not made it into  [*404]  the statute.

Loper Bright Enters. v. Raimondo, 603 U.S. 369, 403-04, 144 S. Ct. 2244, 2268 (2024).

The parties to any future reliance on CASA will debate whether the rule of CASA is, as media reports indicate, that national injunctions are unconstitutional or that national injunctions are possible, but only under impossible conditions.  I argue that the real debate should include whether the real rule of CASA is whether national injunctions are required when the immediate and irreparable harm to newborns is otherwise likely -- pursuant to textual analysis alone, or, if necessary, pursuant to the pro-life and pro-children intent of the author, Justice Barrett.

In furtherance of that debate, future litigants should consider three examples of District Courts interpreting Supreme Court opinions to discern guidance and the fact that the respective resulting appellate struggles were seen as normal exercises of a District Court's discretion and not as subversive:

• In Saint Anthony Hospital v. Eagleson, 548 F. Supp. 3d 721 (N.D. Ill. 2021), a District Court interpreted the Supreme Court's guidance on § 1983 enforceability of Spending Clause statutes in a line of cases which led to Gonzaga University v. Doe, 536 U.S. 273 (2002). The Seventh Circuit reversed the Eagleson holding in Saint Anthony Hospital v. Eagleson, 40 F.4th 492 (7th Cir. 2022). The US. Supreme Court subsequently revised its Gonzaga guidance in Health and Hospital Corp. of Marion County v. Talevski, 599 U.S. 166 (2023), after which it issued Eagleson v. Saint Anthony Hosp., 143 S. Ct. 2634 (2023), where it vacated and remanded that Seventh Circuit holding. Finally (thus far), in Saint Anthony Hospital v. Eagleson, 100 F.4th 771 (7th Cir. 2024), the Seventh Circuit re-interpreted the Supreme Court's Talevski guidance -- but it simply reaffirmed its pre-Talevski guidance. Notably, the District Court's interpretation of Gonzaga in 2021 and ultimate Seventh Circuit reversal of that interpretation in 2024, was a 3-year ordeal, which is slightly less time than President Trump has in his term..
• In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that "testimonial" out-of-court statements are inadmissible against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine them.  A District Court interpreted that guidance in United States v. Varner, No. 4:08-CR-119-Y, 2010 WL 11621612 (N.D. Tex. Mar. 25, 2010) and ruled that certain statements made by child victims to law enforcement and medical personnel in a child sexual abuse case were "non-testimonial" and, therefore, admissible.  The Fifth Circuit reversed the District Court's decision in United States v. Varner, 661 F.3d 286 (5th Cir. 2011), finding that some of the admitted statements were, in fact, testimonial under the Supreme Court's reasoning in Crawford and its progeny.  The courts took 1 year to resolve this.
• In Bailey v. United States, 519 U.S. 137 (1995), the Supreme Court clarified the term "use" in 18 U.S.C. § 924(c), which prohibits using or carrying a firearm "during and in relation to" a drug trafficking crime or crime of violence, or possessing a firearm "in furtherance of" such a crime.  A District Court, in United States v. Nasir, No. 2:16-cr-00109 (E.D. Pa.), applied an interpretation of the "in furtherance of" element, finding the defendant guilty in a firearms possession case.  In United States v. Nasir, 982 F.3d 144 (3d Cir. 2020) (en banc), the Third Circuit relied upon the Supreme Court's reasoning in Bailey and its progeny to reverse the lower court, finding that the District Court's interpretation and application of the "in furtherance of" element of § 924(c) was inconsistent with that reasoning.  This saga took 4 years of appellate review.  

District and Circuit Court jurists who believe that it is their duty to uphold constitutional rights in the face of clearly unlawful executive orders should view CASA as more of a blessing than a curse.  A Supreme Court that, arguably, is hostile to individual rights could have barred national injunctions entirely, on the flimsiest and unsustainable of reasons, as it has done to privacy, voting, reproductive, gender-affirming and other rights.  Instead, the Court has issued strong support for national injunctions, at least where the rights of newborns are concerned.  All that is required is for courts to use their inherent discretion to find that imminent and irreparable harm to their foundational constitutional rights would otherwise occur.

We are all taught that freedom requires vigilance and clear heads.  Pro-democracy and pro-constitution advocates are aided by resorting to the scholarship that they possess and which the anti-democratic forces, armed with crackpot theories aimed at producing reactionary results in the guise of legal theory, do not possess.  The good guys are also armed with something that the others cannot stretch, contort and break indefinitely  -- the US Constitution.

One final note, as an attorney admitted to the federal bar, I have chosen my words about federal courts very carefully.  I do encourage everyone to read between the lines in the above, wherever possible or necessary.

About the Author: Alson Clayton Alston, Esq. is a Pennsylvania attorney (Bar Id # 333339) who specializes in civil rights law and who provides free legal support to his North Philadelphia community three days each week.  He can be reached at ACAlstonLaw@protonmail.com and www.AlAlstonLaw.com.