Policing the Lower Courts

Dear Readers, As citizens, we all have the right to turn to courts to reaffirm our constitutional rights.  The problem is that litigation is expensive.  Constitutional challenges cost hundreds of thousands of dollars, particularly with the multiple layers of appeal.  This means either attorneys (usually from large firms) donate legal services pro bono or citizen action groups (like the American Civil Liberties Union) champion the cause.

Being able to find the “right” plaintiff with the “right” claim is vital to protecting a constitutional right.  The right plaintiff has to be someone directly impacted by the unconstitutional action and willing to put up with the trials and tribulations of a lawsuit – they can be emotionally exhausting. 

Roe v. Wade (which made abortion a constitutional right) is a classic example of the “right” plaintiff with the “right” claim brought be an action group.  Norma Leah Nelson McCorvey stepped forward as the lead plaintiff and the ACLU represented her.  However, this did not happen, nationwide, until the United States Supreme Court issued its ground-breaking decision.

When the constitutionally of government action is contested, the first legal battleground is in a United States District Court.  They can issue an order case-specific, region-specific, state-wide, or even nationwide.  Doing the latter means that a single District Court jurist in small subsection of the country decides (at least temporarily) what happens everywhere. 

If a District Court order is appealed, it goes to a Circuit Court of Appeals with broader swath of authority.  A decision by Circuit Court makes law for an entire circuit comprised of several states under its jurisdiction.  When there is conflict in the circuits, the Supreme Court steps in so there is a uniformity (as in Roe).  This takes years.

A legal strategy in the tool box is a District Order nationwide injunction stopping unconstitutional behavior in its tracks.  This is an efficient way to have powerful impact in a single lawsuit.  Thus, an added layer to a successful constitutional challenge had always been to find a receptive trial judge and circuit to bring suit.  The Supreme Court has just spiked this tool, even where the unconstitutional behavior is readily apparent.

In the advent of the Civil War, Congress wanted to make it clear that those born in slavery were not only emancipated, but United States citizens.  As an avatar of this goal, it passed the 14^th Amendment and forced ratification on the defeated Confederacy.

This is a powerful amendment. Its due process and equal protection clauses were the springboard to incorporate the Bill of Rights as a governor on the states; it’s why the 2^nd Amendment applies to the states.  

The following clause is nestled in it: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  This is what grants citizenship to any person born on American soil – which includes our embassies and military bases. 

President Trump has issued an Executive Order eliminating it.  While supporters may applaud this, it is blatantly unconstitutional, as none of the three branches of government can violate the Constitution.  We should recoil from this overreach; our courts exists to clap back against such blasphemy.  And, they have, enjoining the Trump Administration from enforcing this EO.

Thanks to the Supreme Court, in its 6-3 decision in Trump v. CASA, Inc., the nationwide facet of the injunction is gone; henceforth, District Court nationwide bans have shrunk to a more local impact,i.e., “only to the extent that the injunctions are broader than necessary.” 

The Trump Administration is spinning this opinion as a major victory against birthright citizenship.  It is a big win, but be careful about “drinking the Koolaid.”  The Supreme Court has not said judges are wrong in determining the EO is unconstitutional, it is only about the scope of injunctions.  This may force “hand-to-hand” legal war to protect the 14^th Amendment’s explicit definition of citizenship; it says nothing about the EO’s constitutional offensiveness.

The are broader implications.  “Class action” litigation, cobbling together similarly situated plaintiff and possible plaintiffs, is necessarily encouraged.  Establishing a class of litigants expands the scope of a judge’s authority.  “Forum shopping,” selecting jurists stacked in your favor philosophically and temperamentally, is discouraged.  Something used with great success against both Republican and Democratic administrations. 

In other words, despite the public misinformation, this opinion has nothing to do with substance and everything to do with policing the District Courts.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.