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Steven Calabresi, who teaches law at Northwestern and Yale, writes this week at Reason about the latest dust-up between the executive and judicial branches of our government. “I disagree, on the merits, with President Trump’s executive order denying birthright citizenship to children of non-citizens who are born in the United States because their parents were here without a green card,” writes Mr. Calabresi. But the professor also disagrees “with the increasingly aggressive issuance of nationwide injunctions by the federal district courts, including the nationwide injunctions at issue in
Trump v. CASA, a birthright citizenship case which is presently before the Supreme Court.” Mr. Calabresi notes: It is not at all clear that any of the parties in Trump v. CASA has suffered a legal injury that warranted the issuance of a nationwide injunction. Such parties will surely exist if, and when, President Trump tries to deport a named non-citizen who was born in the United States to parents who were in the country without a green card, or if, and when, President Trump tries to deny a U.S. passport to such a person. But even then, the Article III district courts only have power to issue injunctions as to the parties who are actually
before the court. Article III district judges do not have the power to review in the abstract the constitutionality of President Trump’s misguided birthright citizenship order, which is what the lower federal courts did in Trump v. CASA. No sane legal system would give any one of 667 district judges, acting alone, the power to set aside the actions of the President, in the abstract, as to some legal issue that annoyed someone or even that annoyed 20 State Attorneys General. Such a system creates an incentive for forum shopping and for individual judges to abuse their power. It prevents the deliberation of issues by many judges, and ultimately by the Supreme Court, which is absolutely necessary for the public to have
confidence that our unelected judiciary is deciding cases or controversies according to law rather than for partisan reasons. It also hamstrings the President of the United States, who is chosen by all the people of the nation in an election that is widely considered to be the most important election that our nation holds. Judicial review, ultimately by the Supreme Court, is a vital part of our American system of checks and balances, but the Framers of the Constitution quite deliberately chose not to give the Article III federal courts the power to issue advisory opinions rather than the power to slowly and deliberately decide “cases” or “controversies” of “a judiciary nature.” The idea that any one of 667 federal district judges
should act as a king on some particular issue is itself a threat to our system of checks and balances because it concentrates too much power, in too few judges, acting far too quickly. In Thursday’s Supreme Court oral argument of Trump v. CASA, justices including Elena Kagan seemed troubled by the possibility that if a lower court rules against the Trump administration on the merits, the administration might honor the precedent only for the particular parties involved in the case. Yet Josh Blackman, also writing at Reason, notes that such an approach was sometimes advocated by the Obama administration, in which Elena Kagan served for a time as Solicitor
General.
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