Supreme Court Justice Kavanaugh Questions Birthright Citizenship Case Lawyer

Universal Injunctions and Class Certification

• 🎯 Justice Kavanaugh questioned Solicitor General John Sauer on the basis for opposing statewide class actions in birthright citizenship cases.
• 💡 Sauer suggested potential issues with commonality and typicality due to different groups being affected by executive orders, and potential problems with adequacy of representation.
• 📌 The argument is that Rule 23 (class action procedures) should be the proper channel for these claims, rather than immediate nationwide injunctions.
• ⚠️ Kavanaugh noted that universal injunctions bypass class certification procedures, a pattern observed in numerous cases across administrations.

Historical Precedent and Executive Authority

• 📜 Sauer argued that universal injunctions disregard the tradition of equity and appropriate procedures for seeking global relief.
• 🏛️ He cited historical examples, including the New Deal era, where challenges to nationwide policies did not result in widespread universal injunctions.
• 📈 The frequency of universal injunctions has increased significantly in the last five presidential administrations, with 40 such injunctions in the last four months alone.

Birthright Citizenship and Executive Orders

• 👶 The discussion touched on the practical implications of executive orders concerning birthright citizenship, specifically how federal officials would determine citizenship status.
• ⏳ Sauer agreed that a 30-day ramp-up period for executive orders is reasonable, as it was not initiated due to immediate injunctions.
• 📄 The government's position is that agencies were enjoined from even formulating guidance, highlighting a procedural issue with the injunctions.

Reasons for Increased Litigation

• 🤔 Sauer speculated that difficulty in passing legislation through Congress, potentially due to the filibuster, might lead presidents to use existing authority more broadly.
• ⚖️ He also suggested that judges might be finding actions illegal because they exceed existing authority, a point Kavanaugh acknowledged regarding actions of both parties.
• 🧩 The increase in universal injunctions is seen as unique to the last five presidential administrations, despite historical challenges to policies.