'On What Basis Would You Plausibly Oppose This?:' Brett Kavanaugh Grills Trump Lawyer At Birthright Case

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During Thursday's oral arguments, Supreme Court Justice Brett Kavanaugh questioned Solicitor General John Sauer about universal injunctions.

Transcript

00:01Well, Justice Kagan asked my questions better than I could have.

00:05How do you suggest we reach this case on the merits expeditiously?

00:10There is a number of tools the court could do that.

00:11We think this case is one that cries out for percolation,

00:14that the court should allow the lower courts to address the merits issue multiple times.

00:20It's currently on briefing in three different cases in the First, Fourth, and Ninth Circuits,

00:23and we think that that's the appropriate way to do it.

00:25If the court disagreed, obviously...

00:27When you lose one of those, do you intend to seek cert?

00:30If we lose, yes, absolutely.

00:34Justice Kavanaugh?

00:36So the technical problem here seems to be class-wide relief

00:39without the district courts going through the steps to assess whether a class should be certified.

00:45Correct?

00:46Correct.

00:46Okay.

00:48And if you win here on this procedural point,

00:52it seems very likely that the day after,

00:56there are going to be suits filed all over the place seeking class-wide treatment,

01:02maybe statewide classes, circuit-wide classes, maybe nationwide classes.

01:07I'm sure they're being prepared now.

01:10And on what basis would you oppose a statewide class?

01:15I could imagine certain basis.

01:17And again, we haven't briefed this in the lower courts yet.

01:21You've been promising everyone here that Rule 23 is the cure-all,

01:27and I want to explore on what basis you would oppose a statewide class.

01:33Just take that one for now.

01:34For example, and again, this is very hypothetical,

01:37because I'm not predicting that we will or will not oppose that.

01:39We haven't taken a position on that yet.

01:41If you were to oppose it, on what basis would you plausibly oppose it?

01:46There may be problems of commonality and typicality, for example.

01:49For example, there's two different sets of groups that are affected by the executive order.

01:54There are those where the mothers are temporarily present,

01:57and those where the mother are illegally present.

01:59And in both cases, the father is neither a citizen nor a lawful permanent resident.

02:03So there might be issues of typicality.

02:06Adequacy of representation might very well be an issue.

02:08So there would have to be that rigorous application of those criteria.

02:12Now, the argument may be this is a case that is a natural candidate for a Rule 23 B2 certification.

02:17That may well be true.

02:19The government hasn't taken a position on that.

02:20Our position is not that class certification will necessarily be granted.

02:24Our position is that Rule 23 is how these sorts of claims should be channeled.

02:29And you think, I think you just said, it's very possible that class certification may be granted.

02:36It is possible.

02:37We don't know yet because there was a class certification motion filed at the very beginning

02:40in the Western District of Washington, and it was just never briefed

02:43because obviously the pathology here is that the nationwide injunctions just go blowing past

02:47the class certification procedures.

02:49And I guess Rule 23 B2, for a lot of the cases we've had over the past 25 years that you talk

02:57about where there have been universal injunctions or where the lower courts have had that, I mean,

03:0223 B2 could have been used in a lot of those, presumably, correct?

03:06Eviction moratorium, student loans, OSHA vaccine mandate.

03:12Do you see the possibility that 23 B2 could have been used instead of, I mean, some of those

03:17were APA, but put aside the APA issue for now.

03:20Yeah, we do set aside that issue, if I may.

03:23I got it.

03:24But yes, I agree with that.

03:25As to some but none of the other cases, it's hard to see how, for example, Biden against

03:29Nebraska might have, where a state was the plaintiff, might have been a 23 B2 class.

03:32The Alabama Association of Realtors might have been a much better candidate for that.

03:36And again, not taking a position on the individual merits, our overarching point is there's a

03:44tradition of equity in this country that goes back to the English Court of Chancery and what's

03:49happening in these universal injunctions.

03:51Again, 40 times in this administration, at least 22 times in the last administration, 64

03:56times in the administration before that, is just disregarding those appropriate procedures

04:01to seek this kind of global relief.

04:04I want to ask one thing about something in your brief.

04:06You said, quote, and of course, this Court's decisions constitute controlling precedent throughout

04:11the nation.

04:12If this Court were to hold a challenge statute or policy unconstitutional, the government

04:16could not successfully enforce it against anyone, party or not, in light of stare decisis,

04:22end quote.

04:24You agree with that?

04:25Yes, we do.

04:26If you prevail here, the original executive order had a 30-day period before it took effect.

04:35If you prevail here, should there be any pause so that things can happen that need to happen

04:45for 30 days or some period of time, or should we not even worry about that?

04:50Yes, we can see that the 30-day ramp-up period that the executive order itself calls for never

04:54started because the universal TROs were entered almost immediately, and we don't disagree that

05:01there should be a 30-day ramp-up period for another reason as well, which is that we've

05:05been enjoined from even doing guidance, even formulating a policy, and that itself is another

05:11problem with these injunctions.

05:12On the day after it goes into effect, this is just a very practical question of how this

05:18is going to work.

05:18What do hospitals do with a newborn?

05:21What do states do with a newborn?

05:25I don't think they do anything different.

05:27What the executive order says in Section 2 is that federal officials do not accept documents

05:32that have the wrong designation of citizenship from people who are subject to the executive

05:35order.

05:36How are they going to know that?

05:37The states can continue to, the federal officials will have to figure that out.

05:41How?

05:41So, you can imagine a number of ways that the federal officials could.

05:46Such as?

05:47Such as they could require a showing of, you know, documentation, showing legal presence

05:52in the country.

05:53For a temporary visitor, for example, they could see whether they're on a B-1 visa, which would

05:57exclude kind of the birthright citizenship in that context.

06:00For all the newborns?

06:01Is that how that's going to work?

06:03Again, we don't know because the agencies were never given the opportunity to formulate the

06:08guidance.

06:08They would have 30 days.

06:09They're only going to have 30 days to do this.

06:11Do you think they can get it together in time?

06:13They're under, that's what the executive order instructs them to do, and hopefully they will

06:17do so.

06:18Again, it's a speculative and hypothetical scenario because they were enjoined from even starting

06:22that process.

06:22And then last question.

06:23You mentioned before this has come up in the last four or five administrations primarily.

06:29You know, I guess I've thought about that a lot, too.

06:31Why?

06:32It seems why might be it's harder to get legislation through Congress, particularly with the filibuster

06:38rule.

06:38Presidents want to get things done with good intentions.

06:43The executive branches that work for those presidents push hard to, when they can't get

06:49new authority to stretch or use existing authority.

06:54And they've been pushing, understandably, all with good intentions.

06:58All the presidents, both parties, right?

07:00With good intentions, pushing.

07:02Is that your understanding of why this has happened more, that there's less ability to

07:07get legislation?

07:08Because I'm trying to figure out the why to your opening about the last four or five administrations.

07:13I agree with it.

07:14I think that might be the why, but I'm curious what you think.

07:18I'm speculating about the motivations of the individual district judges who grant these,

07:22but one explanation might be this is an extraordinary power.

07:25It's a very strong power for the reasons the questions have reflected.

07:29Well, let me just pause you right there.

07:31The underlying point is that these district judges are not just doing universal injunctions.

07:36They're finding these actions illegal because they're exceeding existing authority.

07:42And oftentimes we are, too, when it gets to us, finding the actions of presidents of both

07:46parties unlawful because they exceed existing authority.

07:50So is that coming up more often because of why is that coming up more often?

07:55You know, it's hard to do an historical analysis, but I would draw an analogy to the new

07:59deal.

08:00And Professor Bray makes this point in his article that actually there were very, very

08:03passionate challenges to, you know, sort of nationwide policies during the Roosevelt

08:08administration, and they were not addressed by issuing universal injunctions.

08:11He cites an example for, in one case, a policy had been held illegal, and there were like

08:151,600 injunctions against that policy, all protecting the individual plaintiffs.

08:19So if you look at the history, it's not clear that what we have of, you know, disagreement,

08:24but difficulty, gridlock, getting things through Congress and so forth, that's not necessarily

08:28new.

08:29What is new and is certainly unique to the last five presidential administrations is having

08:35these given on this widespread basis and this systematic basis, 40 again in the last

08:40four months.

08:41Justice Barrett.

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