W&L Law Professors File Amicus Brief in Supreme Court Birthright Citizenship Case The brief is intended to assist the Court in deciding whether to allow the executive order ending birthright citizenship to go into effect.
Four civil procedure professors at Washington and Lee University School of Law have filed an amicus brief before the U.S. Supreme Court to assist the Court in deciding whether to allow President Trump’s executive order ending birthright citizenship to go into effect. The brief was authored by Professors Suzette Malveaux, Alan Trammell, Alexi Pfeffer-Gillett, and Doug Rendleman (emeritus). The W&L professors have 90 years of combined experience teaching civil procedure, complex litigation, federal courts, injunctions, remedies, and constitutional law.
The question before the Court on its emergency docket is whether injunctions issued by federal judges in three consolidated cases can prohibit the government from enforcing its executive order nationwide. The propriety of such “nationwide injunctions” is central to cases that impact people’s lives across the country, from citizenship, to deportation, to massive layoffs, to environmental protections. In their brief, the professors argue that nationwide injunctions are appropriate in this case and others.
As the professors explain, “Nationwide injunctions are constitutional. Their core feature—courts’ power to render decisions that directly benefit nonparties—is consistent with traditional equitable practices. Accordingly, the Article III ‘judicial power’ comprehends such remedies. Nationwide injunctions also comport with Article III’s case-or-controversy requirement, including constitutional standing.”
Such “[b]road remedies are sometimes necessary, especially when government actors willfully disregard people’s rights, and the usual tools of aggregate litigation (such as class actions) are not practically available to vindicate those rights.” Moreover, the professors note that although legitimate prudential concerns exist about nationwide injunctions, from fears of judge shopping to prematurely freezing the law,“[c]ourts remain attuned to these concerns, and Congress and the Judicial Conference have effective tools to assess and implement any necessary limitations.” The brief confirms that “nationwide injunctions remain a vital tool in holding government accountable to the people” and that the challenges to President Trump’s birthright-citizenship executive order represent “appropriate cases” for such relief.
The Court will hear arguments in the case on May 15. The professors’ brief is available online at the W&L Law Scholarly Commons.
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