Quote:If plaintiffs want an immediate universal remedy, Sauer contends, they should file a class action instead of individual cases. But many cases are ineligible for class certification under the Federal Rules of Civil Procedure, including all cases brought by states. Nor is there a clear mechanism for speedy emergency relief on behalf of such a class—the very relief that plaintiffs argue is essential.
Proving that point, Sauer admitted that the government might oppose class certification in this very case. He even claimed that the government did not have to follow the rulings of the federal courts of appeals. The only way to stop a Trump-administration policy once and for all—even one that has lost a dozen times in the lower courts—is a final decision on the merits by the U.S. Supreme Court.
As Justice Elena Kagan pointed out, such a rule would allow the government to win by losing. After all, the government could lose case after case in the lower courts—as it has so far in the birthright-citizenship litigation—never seek Supreme Court review, and continue to apply its policies throughout the country. Such a rule would allow all of Trump’s executive orders to go into effect in perpetuity, no matter how flagrantly unconstitutional, save only for those individuals with the capacity to file a lawsuit.
The Question the Trump Administration Couldn’t Answer About Birthright Citizenship
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