The Trump Administration Defends Due Process (For Themselves)

The “trust me, bro” administration.

Several Supreme Court justices asked the Trump administration to consider the same hypothetical on Thursday: Assuming someone has acted illegally, how should they be treated?

Solicitor General John Sauer was ready with his answer: They should be given the proper process, of course.

If that response is surprising, then it’s probably worth noting that the “someone” in question was Donald Trump.

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The issue before the justices was Trump’s January 20 order seeking to limit birthright citizenship from applying to the U.S.-born children of undocumented immigrants, in contravention of the long-dominant interpretation of the 14th Amendment. The Supreme Court wasn’t considering the order directly; rather, the justices were tackling the question of how judges should go about striking the order down, assuming the order was unconstitutional.

The justices kept phrasing it that way, almost treating it like a foregone conclusion that the order would be struck down. But what’s the right way to do it?

Four district court judges, so far, have responded to the order by issuing nationwide injunctions, which block the administration from enforcing the directive against anyone in the country who might be affected by it, not just the plaintiffs who brought lawsuits. Sauer argued on Thursday that nationwide injunctions — which have been used to strike down dozens of other Trump actions as well — are the wrong answer.

“Let’s just assume you’re dead wrong [about the legality of the executive order],” Justice Elana Kagan pressed Sauer. “How do we get to that result? Does every single person that is affected by this EO have to bring their own suit? Are there alternatives? How long does it take? How do we get to the result that there is a single rule of citizenship that is the rule that we’ve historically applied rather than the rule that the EO would have us do?”

Sauer didn’t appreciate that assumption (“It is very difficult for me to attempt the hypothetical,” he protested), but he eventually relented.

For judicial orders at the district court level to be applied to such vast groups, he argued, the plaintiffs should have to go through the tried-and-true steps of certifying a class-action lawsuit.

That process, and that process alone, “provides the equitable tools subject to rigorous criteria, appropriately rigorous criteria, to obtain that kind of class-wide and emergency relief,” said Sauer.

Even if Trump acted wrongly, he was saying, judges still have to treat him fairly. They can’t just skip to their desired outcome because they don’t like the executive order; they still have to dot their i’s and cross their t’s.

Sauer has a point. Nationwide injunctions have bedeviled presidents of both parties for decades, but their legal authority is shaky. The particulars of class-action lawsuits — how to form them, what judges should consider when deciding to certify them, etc. — are enshrined in Rule 23 of the Federal Rules of Civil Procedure. But you can search that document, or the U.S. Constitution, or the entire U.S. Code, and you won’t find the term “nationwide injunctions” (or “universal injunctions,” as they are also known) anywhere at all.

Although some scholars trace their origins earlier, most experts agree that nationwide injunctions are just something judges started doing in the 1960s, without any Supreme Court opinions or federal statues to back them up. The Trump administration was right to ask the court to take the long-standing, bipartisan complaints from the executive branch about nationwide injunctions seriously, prompting the justices to finally give guidance to lower court judges about whether (and how) they should be used. It was an opaque process that, for years, has been screaming out for clarity.

Still, as I sat in the press section of the courtroom on Thursday — where silence is rigorously enforced by a coterie of police officers — I couldn’t help but laugh quietly to myself. Sauer’s assertions about the importance of fidelity to legal process (even when dealing with someone who may have broken the law) are the exact arguments that the Trump administration has spent the last four months dismissing when it comes to immigration law.

Sauer acknowledged that the process of class-action lawsuits can be more tedious and time-consuming. But what can you do? he seemed to ask the justices. It’s the due process laid out by law.

President Trump, as recently as last month, has made the opposite argument concerning undocumented immigrants. “We cannot give everyone a trial, because to do so would take, without exaggeration, 200 years,” Trump wrote. “We would need hundreds of thousands of trials for the hundreds of thousands of Illegals we are sending out of the Country. Such a thing is not possible to do. What a ridiculous situation we are in.”

Apparently, when he is the defendant, his administration takes a different view.

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Sauer, in his debut as solicitor general, did not get a particularly friendly reception from the justices.

Some of them asked him why they were even here: if the court adopted his chosen mechanism (class-action lawsuits) it was still likely that district court judges would certify the plaintiffs as a class, and eventually, the legal status of the executive order would end up in exactly the same place.

“If that’s the case, what is the point of this argument about universal injunctions?” Justice Samuel Alito, a conservative, asked.

If you’re going to lose, why does it matter how you’ll lose?

But, of course, it does matter. Even if it leads to the same outcome, Sauer is correct that our legal system should follow the right process. “We care about technicalities,” Justice Brett Kavanuagh said during the hearing. “And this may all be a technicality, but it seems to me the technicality of Rule 23 and the history that provides…seems to solve the issue.”

But all of this is also true about someone for whom we know the final outcome will be deportation. To take the case of Kilmar Abrego Garcia, the fact that he should not have been deported to El Salvador is a technicality. But we care about technicalities. And we care about due process. Outcomes matter, but it also matters how they are arrived at.

The beauty of living in a country run by rule of law is that this is just as true for an allegedly lawbreaking immigrant as it is for an allegedly lawbreaking president. Just as there is no “really-really-unconstitutional exception” to following the proper judicial process, as Sauer said on Thursday, there is also no “really-really-dangerous-gang-member exception.”

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The Trump administration’s arguments on due process in the Abrego Garcia and birthright citizenship case may seem incongruous, but they share a common throughline.

It is, to paraphrase a popular meme, just trust us, bro.

This argument may sound simplistic, but in previous administrations, it might have worked.

In fact, there is even a legal principle enshrining the just trust me, bro philosophy. It’s known as the “presumption of regularity”: the idea that courts usually assume that government officials have discharged their duties properly, unless a judge is presented with evidence to the contrary.

This presumption has long powered the respectful relationship between the judicial and executive branches, but it appears to be breaking down.

On the lower court level, a number of judges have accused Trump administration lawyers of being dishonest in their representations under oath; most prominently, two judges are currently examining whether the administration has outright ignored their orders.

An unusual midnight order by the Supreme Court last month halting some of Trump’s Alien Enemies Act deportations also seemed to expose a lack of trust by the justices towards the administration, and a perception that they needed to treat this administration differently and more stringently than others.

Normally, the solicitor general is such a trusted part of the Supreme Court’s ecosystem that they are sometimes known as the “tenth justice.” But on Thursday, instead of a presumption of regularity, Sauer seemed to be treated with a presumption of illegality, at least based on the number of times justices asked him to assume — just hypothetically, they claimed, although it didn’t always feel like it — that the president’s executive order flouted the Constitution.

Even though the merits of Trump’s birthright citizenship directive weren’t on the table Thursday, several of the liberal justices took the opportunity to let Sauer know that they felt Trump had broken the law. “The argument here is that the president is violating not just one but, by my count, four established Supreme Court precedents,” Justice Sonia Sotomayor said in a testy exchange with Sauer. (Chief Justice John Roberts had to step in to stop Sotomayor from repeatedly interrupting the solicitor general.)

Even as they engaged in similar hypotheticals with Sauer, none of the conservative justices went quite so far — but, notably, none of them spoke up to defend the birthright citizenship order, either.

In a separate exchange, Sauer also seemed to test the trust of even some conservative justices. Kagan asked him, absent a nationwide injunction, if an individual plaintiff won a circuit court ruling against the executive order, whether the administration would commit to not implement the order in the entire circuit (rather than just in that one plaintiff’s case).

“I can’t say as to this individual case,” Sauer responded. “Generally, our practice is to respect circuit precedent within the circuit, but there are exceptions to that.”

“Yes, that is generally your practice,” Kagan, a former solicitor general, said archly, to laughter in the courtroom. “I’m asking whether it would be your practice in this case.”

“I can’t answer because it would depend on what the lower decision said,” said Sauer.

When Justice Amy Coney Barrett, a Trump appointee, picked up on that same line of questioning — and Sauer again said it was “our general practice” to follow precedents in an entire circuit, but not a “categorical practice” — it was revealing that Barrett’s instinct was to question whether the Trump administration was handling the law differently than its predecessors.

“This administration’s practice or the longstanding practice of the federal government?” she asked.

“As I understand it, [it is the] longstanding policy of the Department of Justice, yes, that we generally as it was phrased to me, generally respect circuit precedent but not necessarily in every case,” Sauer responded.

“Really?” Barrett asked in disbelief.

Justice Ketanji Brown Jackson argued that this would create “a ‘catch me if you can’ kind of regime,” in which the administration would only stop enforcing an order against the specific plaintiffs who brought lawsuits, and then anyone else who didn’t want the order applied to them would have to hire a lawyer and join the suit.

“And I don’t understand how that is remotely consistent with the rule of law,” Jackson said. “I appreciate that you go back to English common law and the Chancery Court, but they had a different system. The fact that the courts back in English Chancery couldn’t enjoin the king I think is not analogous or indicative of what courts can do in our system, where ‘the king’ — the executive — is supposed to be bound by the law.”

(The entire courtroom seemed to gasp a bit after that jab, which was somewhat reminiscent of then-Judge Jackson’s 2019 ruling during Trump’s first term: “Presidents are not kings.”)

Kagan brought up yet another suspicion she harbored about the Trump administration: if the government wouldn’t commit to following a precedent more broadly than towards the plaintiffs who brought the case, it would have no incentive to appeal the case up to the Supreme Court, the only body (in Sauer’s view) that would be able to enjoin the administration from applying the order nationwide.

The administration could simply keep losing individual cases, but continue applying the order elsewhere, because there would be no way for any court to step in and tell it to stop applying the order nationally if the administration opted not to appeal its lower-level losses to the Supreme Court.

“If I were in your shoes, there is no way I’d approach the Supreme Court with this case,” Kagan said.

“This is not a hypothetical,” she added. “This is happening out there, right? Every court has ruled against you.”

“Justice Kagan asked my questions better than I could have,” Justice Neil Gorsuch, a Trump appointee, said after that exchange.

President Trump is counting on the Supreme Court’s trust, both in his attempt to deport undocumented immigrants and to strip their children of U.S. citizenship. In both cases, he doesn’t seem to have it.

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Where does all that leave us with respect to birthright citizenship?

If the justices choose to take on the nationwide injunctions issue — they could always decide not to, even after sitting through 2 1⁄2 hours of oral arguments — it felt to me like they were driving towards a middle ground.

New Jersey Solicitor General Jeremy Feigenbaum, who argued against the Trump administration Thursday, had a much calmer, easier rapport with the justices, liberal and conservative, than the more excitable Sauer, who faced a much more contentious round of questioning.

Feigenbaum proposed the court devise a test to not ban nationwide injunctions outright — as Sauer called for — but to spell out certain “extraordinary” circumstances when they were called for. This would avoid some of the problems with eliminating nationwide injunctions entirely that the justices raised with Sauer, while still offering lower court judges some much-needed instructions on when to use them. (Liberal and conservative justices seemed to agree they are currently used too often. “We survived until the 1960s without universal injunctions,” conservative Justice Clarence Thomas pointed out. Kagan, a liberal, acknowledged that there have been “abuses” of the tool.)

Even Gorsuch, an ardent opponent of nationwide injunctions — or “cosmic injunctions,” as he has somewhat snarkily called them in the past — seemed intrigued by Feigenbaum’s idea. The Trump appointee thanked the Democratic lawyer for offering a “very thoughtful” framework.

If the justices do take that route, it’s likely that one or several district judges will simply institute a nationwide injunction against the birthright citizenship order under the new framework (although, to Sauer’s point, this at least means they will be using a defined framework). And then, eventually, the issue will return to the Supreme Court, where the justices largely seemed poised to reject the order.

On Thursday, they were asking Sauer to assume he was staring down the barrel of a loss. Before long, they might not be speaking so hypothetically.