On the eve of the birthright citizenship case, it is useful to think back to last year. The Trump Administration could have rushed the merits to the Supreme Court, but instead only sought certiorari in the nationwide injunction issue. And to win that case, the executive branch sacrificed its own power. The Solicitor General said it would bind itself to the decisions of the Supreme Court. No decision, not Marbury, not Cooper v. Aaron, ever stipulated that point. Now a coordinate branch of government surrendered. And to what end? Was CASA such an important case that justified that unilateral disarmament?
I think the answer is no. In the year since CASA, there have been a never-ending spate of universal vacaturs against the executive branch. District Courts have certified classes on the fly. And the Supreme Court has shown no interest in clamping down this practice. And if, as expected, the Supreme Court strikes down the birthright citizenship order, all of this litigation will have been for naught. The executive branch is weaker because of this order. What was gained?
On the other side, the doomsday predictions from CASA simply have not come to fruition. Richard Re brings the receipts:
First, the CASA dissenters repeatedly suggested that relief would be practically unavailable, at least for many affected individuals, if universal relief were disallowed. . . . As it happened, the EO was swiftly enjoined and so has yet to go into effect. Moreover, that outcome was not only foreseeable but foreseen by at least some justices and commentators. . . .
Second, the CASA dissenters, especially Justice Kagan at oral argument, worried that the merits of the birthright citizenship EO would never reach the Supreme Court. . . . To some degree, this second worry was parasitic on the first one, for a lack of SCOTUS review might not be a problem if the relevant executive action were still expeditiously enjoined via class action. At any rate, the oral argument resulted in a promise from the SG that he would in fact seek certiorari on the merits, and that is of course what happened. . . .
In CASA, the dissenters raised concerns that were unusually immediate and specific. Perhaps they left enough wiggle room for plausible deniability. But to the extent that the dissenters made testable claims, those claims have not been borne out. The dissenters’ doomsaying, in other words, can be viewed as both falsifiable and falsified. One might remember this example when considering other assertions in dissenting opinions.
CASA was so important last year. This year, it barely matters. Yet another instance where it is difficult to know in the moment what Supreme Court rulings will have any resonance in the longterm.
