Federal judges use class actions, Administrative Procedure Act to extend broad relief against Trump

Hyperventilating ran heavy in June after the Supreme Court issued its ruling that courts had been too profligate in using nationwide injunctions to stop the president, and ordered lower judges to cool it. Here’s what you need to know about how the ruling has played out in practice:

The initial reaction

Supreme Court ruling prompted dire predictions about presidential power:

• Justice Sonia Sotomayor called decision an “invitation … to bypass the Constitution”
• Law professor called it “major blow” to judicial branch’s ability to stop president
• One media outlet called ruling “blockbuster” victory for President Trump
• Three months later, though, ruling has largely fizzled, with judges still finding plenty of room to shut down Trump without resorting to nationwide injunctions high court criticized

The judicial workarounds

Lower courts find alternative methods to block presidential actions:

• Some judges shifted to using class action lawsuits to stop presidential action
• Others turned to what’s known as “vacatur,” where government policy can be erased root and branch
• Still others said cases in front of them were special enough that they demanded nationwide injunctions, notwithstanding Supreme Court’s scolding in June ruling in CASA v. Trump
• “CASA decisively rejected the universal injunction. But it didn’t eliminate all forms of broad relief in federal court, especially class actions and vacatur of federal rules,” said Samuel Bray, law professor at University of Chicago

The practical impact

Legal experts say outcome remains similar despite new methods:

• Howard Wasserman, professor at Florida International University College of Law, said legal experts who studied universal injunctions haven’t been surprised by how things have played out
• “The court left open four ways in which broad injunctions are still possible. But you have to do little bit more work to get it, and that’s what’s happening,” he said
• “We end up in same place, but we got here by right mechanism, and that matters,” Wasserman said
• “We got here by doing the correct analysis”

The case review findings

Washington Times analysis shows continued broad relief:

• Washington Times reviewed 23 decisions issued since July 1 where judges grappled with scope of relief they were asked to give
• While most gave some nod to CASA decision, in 18 of cases, judges delivered broad relief
• In just two cases reviewed by Times, judges did say they were acting to limit their rulings in wake of high court’s CASA admonition
• One was Judge Julie Rubin, Biden appointee to court in Maryland, who said plaintiffs were asking court to become referee over presidential actions

The birthright citizenship example

Lower courts quickly found ways around Supreme Court restrictions:

• Within weeks, four different lower courts re-examined birthright citizenship and in each case decided that universal blockade was still warranted
• In New Hampshire and Maryland, federal district judges certified class actions
• In two other cases where states were plaintiffs, federal district court in Massachusetts and 9th U.S. Circuit Court of Appeals ruled that universal injunctions were still warranted
• “No workable, narrower alternative to the injunction issued originally would provide complete relief to plaintiffs in this case,” wrote Judge Leo Sorokin in Massachusetts

The Administrative Procedure Act avenue

Judges increasingly use APA to shut down Trump policies wholesale:

• “The recent Supreme Court case, Trump v. CASA, does not change the outcome,” ruled U.S. District Judge Brendan Hurson in Maryland case challenging Trump administration restrictions on Obamacare
• In Seattle, U.S. District Judge Ricardo Martinez shut down Trump policy to block some temporary immigrants from signing up for welfare benefits
• He said it would be “impractical” to only apply his ruling to plaintiffs
• Administrative Procedure Act has become chief hurdle for president in many executive action legal losses

The Supreme Court’s limited expectations

Justice suggested ruling might not create seismic shift:

• During oral argument in Supreme Court case in May, Justice Brett M. Kavanaugh hinted that upcoming ruling might not be seismic shift some were figuring
• He said people would still get answers they deserved from courts, but judges would have to work through more steps
• “This may all be technicality,” he said, but suggested it was still worth it because “It complies with the rules”
• “I mean, the law — we care about technicalities”

The criticism of new approach

Legal expert warns about rushed class action certifications:

• Josh Blackman, professor at South Texas College of Law who had been critical of flood of universal injunctions, said new rush to certify class actions is worrying
• Said some judges approved them so quickly that he was “skeptical whether they went through all of required factors”
• “I think Supreme Court will be frustrated that lower courts have resurrected national injunctions as class actions. The Supreme Court is being resisted,” he said
• Other legal experts suggested high court may revisit issue and attempt to rein in states’ ability to sue

Read more:

• Supreme Court’s nationwide injunction ruling fizzles as judges find new ways to block Trump