For Donald Trump, it was a “monumental victory.”
For the Trump resistance, there are signs of hope buried in the fine print.
Those dueling interpretations emerged Friday in the hours after the Supreme
Court issued its blockbuster decision in Trump’s challenge to three nationwide
injunctions that have blocked his attempt to deny citizenship to children of
undocumented immigrants born on American soil.
And both contain an element of truth.
The 6-3 decision has a single headline holding: Federal district judges “lack
authority” to issue “universal injunctions,” Justice Amy Coney Barrett wrote for
the conservative majority. It’s a breathtaking pronouncement given that district
judges, with increasing frequency, have been issuing those sorts of injunctions
for decades.
It was precisely the bottom-line result that Trump’s Justice Department asked
for in the case. Sweeping injunctions have blocked many of Trump’s second-term
initiatives, not just his executive order on birthright citizenship. Now, the
Supreme Court has made clear, an injunction against a challenged policy should
ordinarily apply only to the individuals or organizations who sued. For everyone
else, the policy can take effect even if a district judge believes it’s likely
illegal.
But Barrett’s 26-page opinion leaves a surprising degree of wiggle room. Yes,
conventional nationwide injunctions are off the table, but Trump’s opponents say
they see alternative routes to obtain effectively the same sweeping blocks of at
least some policies that run afoul of the law and the Constitution.
The court appeared to leave open three specific alternatives: Restyle the legal
challenges as class-action lawsuits; rely on state-led lawsuits to obtain broad
judicial rulings; or challenge certain policies under a federal administrative
law that authorizes courts to strike down the actions of executive branch
agencies.
The viability of these three potential alternatives is not yet clear. But the
court explicitly declined to rule them out. That led Justice Samuel Alito — who
joined the majority opinion — to write a concurrence to raise concerns that the
court was leaving loopholes that could undercut its main holding.
If lower courts permit litigants to exploit those loopholes, Alito wrote,
“today’s decision will be of little more than minor academic interest.”
Legal experts were unsure about the practical implications of the ruling —
especially in the birthright citizenship cases, but also in other challenges to
Trump policies.
“One of the things that’s problematic about this decision is how difficult it
will be to implement,” said Amanda Frost, a University of Virginia law professor
whose scholarship was cited in the justices’ ruling. “I think it’s really hard
to say.”
THE CLASS ACTION WORKAROUND
The court’s decision explicitly left open one avenue for legal challengers to
obtain a broad ruling that can apply to thousands or even millions of people:
File a class-action case.
Class actions allow large groups of similarly situated individuals to band
together and sue over a common problem. If a judge sides with class-action
challengers against a federal law or policy, the judge can issue a binding order
that protects everyone in the class from being subject to the law or policy.
Within hours of the court’s decision on Friday, one of the groups challenging
Trump’s birthright citizenship policy moved to refashion its case as a class
action.
But class actions are not a panacea for the Trump resistance. Federal rules
require special procedures before a court can “certify” a class. Litigants
seeking to use the class-action mechanism must meet several criteria that don’t
apply in ordinary lawsuits. And the Supreme Court itself has, in recent years,
raised the legal standards for people to bring class actions.
Barrett wrote that these heightened requirements underscore the need to limit
universal injunctions, which she labeled a “shortcut” around the stringent
standards that accompany class-action suits.
“Why bother with a … class action when the quick fix of a universal injunction
is on the table?” she wrote.
Alito, in his concurrence Friday, warned district judges not to be overly lax in
green-lighting class actions.
“Today’s decision will have very little value if district courts award relief to
broadly defined classes without following” procedural strictures, the
conservative justice wrote.
BROADER RELIEF FOR STATES
A second potential silver lining for Trump’s opponents is that the court
recognized that states may sometimes be entitled to broader injunctions than
individual challengers.
Barrett wrote in the majority opinion that district judges are empowered to
provide “complete relief” to litigants who are improperly harmed by government
policies. And when states sue the federal government, it’s possible, legal
experts say, that “complete relief” requires a sweeping judicial remedy.
That remedy might take the form of an injunction that applies everywhere in the
suing states. Barrett herself contemplated that it might be proper for lower
courts to forbid Trump from applying his executive order on birthright
citizenship anywhere within the states that have challenged the order. (About 22
Democratic-led states have done so.)
That scenario would create an odd patchwork: Automatic birthright citizenship
would apply in half the country but would disappear in the other half until the
Supreme Court definitively resolves the constitutionality of Trump’s executive
order.
There is even a chance that “complete relief” for a state might extend beyond
the state’s borders and apply nationally — because residents of one state
frequently move to another. Still, the bounds of what the court meant by
“complete relief” remain murky.
Frost said that it’s unclear what an injunction that affords “complete relief”
to a state, while stopping short of a “universal” or “nationwide” remedy, would
look like. “I don’t know, and that’s a problem of the court’s own making,” she
said.
Nonetheless, Democrats like New Jersey Attorney General Matthew Platkin seized
on the “complete relief” opening, saying it was a reason for optimism and
effectively an endorsement of what he and other blue state officials had
contended since the start. He and other Democratic attorneys general emphasized
that they argued at all levels of the court system the need for nationwide
relief in the birthright citizen case — because it would be pure chaos if
residents left one state where they were entitled to birthright citizenship and
moved to another state where they were not entitled to it, or vice versa.
“As I sit here now, as it relates to states, the court confirmed what we thought
all along. Nationwide relief should be limited but is available to states,”
Platkin said.
Barrett, however, wrote that the court was not taking a firm position on the
scope of any injunction the states might be entitled to.
“We decline to take up these arguments,” she wrote, adding that the lower courts
should assess them first.
SETTING ASIDE AGENCY ACTIONS
The third potential workaround for opponents of Trump policies involves a
federal statute known as the Administrative Procedure Act.
That law authorizes lower courts to “set aside” actions by regulatory agencies
if the courts find the actions to be arbitrary, rather than based on reasoned
analysis. That sort of wholesale judicial relief in some ways resembles a
nationwide or “universal” injunction, but Barrett wrote in a footnote that the
court’s decision does not address the scope of relief in lawsuits filed under
the APA.
Some of the lawsuits challenging Trump’s policies have been brought under the
APA. For instance, a district judge in Rhode Island issued a nationwide
injunction against Trump’s attempt to freeze vast amounts of federal spending
after the judge found that the move would violate the APA.
But not all policies are agency actions that would be subject to APA challenges.
The birthright citizenship policy, for instance, was promulgated through an
executive order, not through any federal agency. On the other hand, the order
has a 30-day “ramp-up period” in which agencies will develop guidelines before
implementing the order. Those guidelines might become targets for APA
challenges.
Tag - print
LONDON — For a politician who spent the last year warning of a “black hole” in
the public finances and doling out misery, Rachel Reeves was practically popping
corks.
The U.K.’s finance minister promised nothing less than “the renewal of Britain”
in her review of government spending Wednesday, which set the framework until
the next general election in 2029.
Her narrative (along with £113 billion of capital investment) was aimed squarely
at countering the threat of Reform UK, the upstart populist party now leading
opinion polls. During her speech in parliament, Reeves took time out to poke fun
at Reform leader Nigel Farage, who was sitting across the Commons chamber,
laughing with his colleagues.
But Reeves also admitted many voters feel a “sense that something has been lost”
as she pledged to redirect cash beyond London to poorer areas where Farage poses
a significant political threat. “The renewal of Britain must be felt
everywhere,” Reeves said.
Overall, she sought to strike a far more positive tone than she had done in the
past. Reeves said “we are starting to see the results” of fiscal rectitude, with
interest rate cuts and growth in GDP and real wages.
It felt like an election pitch, four years early. The question is whether this
is as good as it will get.
For one thing, the Chancellor’s buoyant mood was at odds with the scale of her
spending plans, and the pain they will inflict on some areas of the state.
In truth, she is unable to put much taxpayers’ money where her mouth is because
there’s not enough to go around: Reeves is hemmed in by a key election pledge
not to raise major tax rates, her own fiscal rules and Britain’s vast public
sector debt.
Her plan contained tight spending settlements for many U.K. government
departments, including the Foreign Office and the Home Office, especially from
next year. Nervous ministers believe these could force a reality check on
Labour’s mission to rebuild the state.
In these seven takeaways, POLITICO examines the reality of Reeves’ spending
review:
1) DON’T CALL IT AUSTERITY: THE MONEY IS REAL
This is no throwback to the Conservative austerity of the early 2010s, when
almost every department underwent steep real-terms cuts — several by more than
20 percent.
Reeves and her aides boast that total “departmental expenditure limits” will
grow by 2.3 percent a year in real terms between 2023/24 and 2028/29. (Though
this rise is only 1.2 percent for day-to-day revenue spending from 2025/26. More
on that spin shortly.)
“Austerity was a destructive choice for the fabric of our society,” Reeves told
MPs. “My choices are different.”
In an age of trade and land war, Reeves even harked back to her
Bidenomics-inspired mantra of “securonomics” — using the state’s heft to
kickstart homegrown manufacturing. The Chancellor’s critics thought she had
parked that idea while seeking economic ties with China.
2) BUT IT’S NO SPLURGE EITHER: WHERE THE KNIFE FALLS
Revenue spending in several departments will fall sharply in real terms by
2028/29.
Some of these seem to have easy explanations. Government officials say a 5
percent real-terms cut in day-to-day Department for Transport spending is due to
scaling back post-Covid railway subsidies. A real-terms cut of 1.7 percent a
year for the Home Office is mostly down to a pledge to end spending on hotels
for asylum seekers by 2029, officials say.
But ministers are being forced to tighten their belts. The Department for
Environment, Food and Rural Affairs faces a real-terms cut of 2.7 percent a
year, while Business and Trade spending is cut by 1.8 percent and the Department
for Culture, Media and Sport by 1.2 percent.
The U.K. Foreign Office faces steep cuts of 6.9 percent per year, largely in the
form of February’s decision to slash foreign aid spending.
Day-to-day spending in the Department for Education will rise by 0.7 percent a
year — yet most of this is accounted for by a big expansion of free school
meals, said Paul Johnson, director of the nonpartisan Institute for Fiscal
Studies (IFS) think tank.
3) WHITEHALL GETS A HAIRCUT: CIVIL SERVICE JOBS
Starmer’s Cabinet cheerleaders have made a big deal of “efficiency” in
government. The review puts (some) flesh on what that’ll mean.
Government departments (known collectively as Whitehall after the street in
Westminster where many are based) are expected to cut their administration
budgets by 10 percent by 2028/29, and 15 percent (£2.2 billion a year) by
2029/30.
Departments also need to find “efficiency gains” averaging 4 percent by 2028/29,
a total of £13.8 billion per year. HM Revenue and Customs plans to save 13.1
percent of its spending through “AI and automation” and basing 85 percent of
staff outside London, while the Department for Work and Pensions will use
artificial intelligence to review jobseekers’ CVs.
Eleven central London government offices will be closed, including 102 Petty
France (currently home to the Ministry of Justice) and 39 Victoria Street (used
by the Department of Health), while overseas allowances for British diplomats
are — hold on to your canapés — “being reviewed and revised.”
Some of the precise calculations behind these efficiency savings still lack
detail, though — and officials have declined to say exactly how many civil
service jobs will be lost as a result.
4) THE SMALL PRINT HURTS: BUILDING HOMES
The chancellor rattled off big numbers (often shorn of context) to prove she is
opening the spending taps. As always, the devil is in the detail.
Many figures in the spending review are measured from the start of “phase one,”
2023/24 — when the Conservatives were still in power. Spending becomes far
tighter in “phase two,” which starts from next year. Real-terms increases in
day-to-day spending will slow from 2.7 percent in 2024/25 to just 1 percent a
year from 2027/28.
Some headline numbers are also spread over long periods. Reeves promised to
deliver Labour’s manifesto pledge to build 1.5 million homes by 2029 with a £39
billion Affordable Homes Programme. Yet this is spread over a decade, and will
only hit its stride (£4 billion a year) by 2029/30, around the time of the next
election. Labour MPs will want to see houses built, and voters moving in, ASAP.
Some sums are not all provided by central government. Reeves said she was
raising “spending power” for police forces and councils — subject to tense
last-minute negotiations — but this is based on individual councils deciding to
hit voters with above-inflation rises in council tax.
A £113 billion rise in capital investment by 2029 looks generous. But the
National Institute of Economic and Social Research (NIESR), a nonpartisan think
tank, argued it is a figure that Reeves has measured against past plans for cuts
that were “implausible.”
5) BIGGER ISN’T BIG ENOUGH: HEALTH AND DEFENSE
Britain’s plans for defense spending will soon butt up against reality.
Defense spending will meet the U.K.’s target of 2.6 percent of GDP (including
intelligence agencies) from 2027 onwards, but the review has no firm plans to
raise it further. This is despite Labour’s “ambition” to hit 3 percent by 2034.
More pressingly, NATO is holding talks with allies about raising their
commitments to 3.5 percent. Discussions will reach a crunch point at the
alliance’s summit later this month.
The jewel in Reeves’ announcement was a 3 percent-per-year rise in spending on
Britain’s ailing National Health Service. But this is less than what has been
the average annual rise since the 1970s, of 3.8 percent.
Johnson, the IFS boss, said Labour’s target to reduce treatment waiting times
below 18 weeks will be “enormously ambitious – an NHS funding settlement below
the long-run average might not measure up.”
6) PETER PAYS PAUL: ENERGY
The budget of the U.K.’s new publicly-owned power company, Great British Energy,
has been raided to fund a longstanding government commitment to develop mini
nuclear reactors.
Labour’s manifesto committed to £8.3 billion over five years for GB Energy to
“deliver clean power” projects across the country. But Wednesday’s review
assigned £2.5 billion of its funding package to a deal with Rolls Royce to
develop small modular reactors (SMRs) — small-scale nuclear plants that will be
relatively quick to build.
Two government officials denied that the decision amounted to a cut to GB
Energy’s budget, though a third government official said the decision had come
“very last minute.”
7) THIS IS NOT THE END: WILL TAXES HAVE TO RISE?
Reeves pitched her plan as a return to “stability,” vowing not to revisit the
settlements until the next spending review, in 2027. But with a full budget due
this fall, Treasury aides accept speculation about her next move will begin
almost immediately.
The NIESR said it was “almost inevitable” that taxes will need to rise — a
warning leapt on by opposition MPs. Conservative Shadow Chancellor Mel Stride
branded Reeves the “spend today, tax tomorrow chancellor.”
Key details of the government’s plans are also yet to be unveiled. A 10-year
infrastructure strategy and an industrial strategy are each due later in June,
with a 10-year plan for the NHS, a national security strategy and audit of
Britain’s relations with China all expected to follow in the coming months.
Then there are — potentially — holes that departments will need to fill later.
Wednesday’s spending review warns pay rises for Britain’s 6 million public
sector workers will need to be funded from departments’ existing budgets until
2029. Departments have estimated what these pay rises might be, but there won’t
be certainty for years.
At some point, someone will have to pay up. Reeves will be hoping it’s not her.
Charlie Cooper contributed reporting.