U.S. Solicitor General D. John Sauer will appear before the Supreme Court on Thursday to argue against the nationwide injunctions entered by the lower courts in three birthright citizenship cases. As I detailed Tuesday, the Trump Administration appears poised to score a win from the Supreme Court given that five justices — in various concurrences and/or dissents — have criticized nationwide injunctions.
Such a victory will be narrow, however, because the issue before the high court solely concerns the breadth of the remedy, namely whether the injunction should apply on a nationwide basis or be limited to the individual plaintiffs: The question of the constitutionality of President Trump’s birthright citizenship executive order will await another day.
The Supreme Court’s eventual decision on the propriety of nationwide injunctions in the consolidated cases being argued on Thursday will also have a limited reach because the birthright citizenship cases do not involve the Administrative Procedure Act. That statute expressly authorizes federal courts to “hold unlawful and set aside agency action” that are arbitrary and capricious or contrary to law.
“Such ‘setting aside’ of an agency action will have a nationwide effect, much like a nationwide injunction, but the propriety of such an order differs, not in degree, but in kind, from the nationwide injunctions before the Supreme Court in the birthright cases.” And so, a holding in the birthright cases striking the nationwide reach of the injunctions will do nothing to prevent their continued use in cases brought under the APA.
When asked about this concern, a Department of Justice official told The Federalist that when courts have issued nationwide injunctions in cases brought under APA, the Trump Administration has challenged those injunctions on the merits — implying that the DOJ’s concern is not the scope of the remedy in the APA cases, but the underlying decisions.
That point provides a solid counterbalance to the concern that the Supreme Court’s decision in the birthright citizenship cases will do little to halt the flurry of nationwide injunctions. First, as the DOJ official stressed, much of the lawfare brought against the Trump Administration arose outside of the APA context, such as the lawsuits challenging the Trump Administration’s ban from military service of individuals suffering from gender dysphoria. Preventing forum shopping to obtain nationwide injunctions in cases such as those will help counter the judiciary’s interference in the Trump Administration’s governance.
But even in the APA context, the DOJ believes it will prevail on the merits, meaning any nationwide injunctions issued will fall as well.
While this path may take longer, the DOJ has already seen some success by challenging the plaintiffs’ likelihood of success on the APA claims. Consider for instance, in one case where a group of nonprofit organizations sued the Trump Administration under the APA, claiming the layoffs of federal employees was arbitrary and capricious or contrary to law. In that case, the Supreme Court stayed a lower court’s injunction, holding the Plaintiffs’ allegations were insufficient to establish “standing,” or the plaintiffs’ right to sue, under the APA.
The Supreme Court also stayed an injunction entered in an APA case brought by eight states against the Department of Education, challenging the Trump Administration’s canceling of grants. There, the Supreme Court held that the Plaintiffs’ APA claims were unlikely to succeed because a challenge to grant terminations concerned a contractual obligation to pay money — a type of claim that could only be pursued in the Court of Federal Claims.
These stays confirm the DOJ’s strategy of challenging the APA injunctions on the merits. The Supreme Court’s reasoning also establishes that the problem with the scores of nationwide injunctions entered in cases brought under the APA is not the breadth of those injunctions, but the judges’ underlying conclusion that the plaintiffs have standing to sue or that the courts have jurisdiction over challenges which should have been brought in the Court of Federal Claims.
Other APA claims should fail because they involve challenges to the firing of federal employees, which federal district courts also lack jurisdiction to consider: Federal employees must challenge termination decisions first with the Merit Systems Protection Board. And still other cases challenge day-to-day management decisions by the agencies and not “final agency action,” and only the latter can be challenge under the APA.
So, at the end of the day, the nationwide injunctions under the APA will likely fail too, but because there is no merit to the APA claims. Until that day comes, however, supporters of Trump’s America First agenda will have to take solace in the fact that the Supreme Court seems likely to limit nationwide injunctions in other contexts — maybe not the absolute win MAGA wants, but it’s a step.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press.
She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals.
Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance.
Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
