The majority seems too trusting that the government will appeal its losses.
Strategically, the government could enact a policy affecting a million people, be sued, lose, provide relief to the named plaintiffs, and then not appeal the decision. The upper courts never get the opportunity to make binding precedent, the lower courts do not get to extend relief to non-plaintiffs, and the government gets to enforce its illegal policies on the vast majority of people who did not (likely could not) sue.
That said, the procedure here is to just use class action lawsuits to get nationwide injunctions. The opinion explicitly notes that it is an option. And today there was a big flurry of people amending their complaints to do just that.
I actually have some insider info on this. While it sounds like in theory all you have to do is take your existing lawsuit and add the additional step on certifying your class, that option isn't available for the vast majority of legal challenges. In the history of the ACLU they have had less than ten cases where they could have been converted into a class action. As a real life example the "trans women being moved to men's prisons" case isn't eligible to be made into a class action. Tangentially related if you want to see a painfully explicit example of "the cruelty is the point" read that EO. Even if you're someone who broadly agrees with the order it's a lot.
Unfortunately "the set of people who are affected by this law" doesn't define a class.
Lets not forget the ACLU has burnt 100 years of goodwill to become the bad guys in the past decade.
They went from from amazing freedom fighters to lets hope their organization gets destroyed because of the awful humans they let in internally in recent times. I understand there is a split with an old guard still fighting to get it back, but they will lose.
There's two main claims that you see when it comes to the ACLU losing its way. The first one is that they don't really do second amendment cases. Some of the motivation is genuinely the conscience of the people who work there, but the much much bigger factor, because the ACLU takes on lots of conscience testing cases, is that the NRA is extremely well funded and will fight the case anyway. There's already an organization laser focused on that issue and is legislatively successful, they don't need the ACLU lawyers' help. More broadly people see the ACLU taking on more "left wing" cases, and this is largely for the same reason. If you have limited resources then you end up having to focus on the cases where there aren't other organizations with legal expertise to step in. And despite what conservative media will tell you, there aren't actually all that many people defending, say, the lgbt. Lots of organizations will show their disapproval of these laws and make a lot of unproductive noise about them, but when it comes time to actually put up money and lawyers to fight them, all the hands stay down.
The second claim is their handling of covid. And the thing is this is an interesting case study for the ACLU. One of the things that people expect from organizations is devotion to a set of principles, and that the organization will die on any hill involving them. And Covid was a situation in which they had to ask themselves whether or not dying on their hill was the right thing to do even if they were wrong. Not wrong in sense that they are defending the "bad people," they do that all the time, but that this is a situation that is genuinely exceptional and that the health and safety of the nation is more important than people's individual civil liberties. And if you turn up the severity of the pandemic I personally think it is fairly obvious that this would be the right choice. It's a hard thing to look at ideals that you have dedicated your life and career to and weigh them against people's lives. Where the controversy lies is how severe you think covid was and whether that severity crossed the threshold. And if you didn't the ACLU's actions look like an arbitrary betrayal of their core principles.
> “…the procedure here is to just use class action lawsuits to get nationwide injunctions.”
I recently learned my company’s Handbook has a passage which says I cannot participate in a class action lawsuit against the company. Sure, they can _just say_ I can’t eat green M&Ms, but what’s the twist?
The context here is suing the government for unconstitutional executive orders, so wouldn’t be an issue.
But yeah, ever since the Supreme Court blessed those provisions in National Labor Relations Board v. Murphy Oil USA, Inc (2018), companies have been adding them to employee agreements.
Since we’re rendering people to El Salvador, there’s no reason some ICE bounty hunter can’t grab you in Massachusetts, and dump you in some Home Depot parking lot in the Carolinas.
IANAL but isn't any ruling by even a lower court precedent? Like if I sue the government for thing A and a lower court rules in my favor, doesn't that make the next plaintiff's case for sueing the government for thing A much easier? All it seems to do is make everything much less efficient.
So here's how the loophole works. There are 12 courts of appeals. You (ICE) does a bad thing. (renditions a US citizen to an El Salvador concentration camp without due process) You get sued, appeal it to that court of appeals. Let's say it's the 9th Circuit Court of Appeals, let's say you lose. You take the L and move on. You never do the bad thing in the 9th circuit again: that decision is binding. Then you do it again in a different circuit. Let's say you do the bad thing in Texas, where the 9th circuit decision was not binding. Let's say you win this time. Now the 5th circuit is your playground.
From now on, every time you arrest someone in the 9th circuit, you put them on an express flight to anywhere in the 5th district within an hour or so of arresting them, before they can get a lawyer to talk to a judge. The precedent that matters is the 5th circuit precedent, where the detainee is right now, not the 9th district (or anywhere else) where they were detained.
Because the Supreme Court has now ruled that this is a lower court problem, they've effectively blocked anyone from ever getting justice ever again.
Because it conflicts with the holding in another circuit, called a "circuit split," which is one of the most common causes of the Supreme Court choosing to hear a case. The Supreme Court doesn't want forum shopping.
> In this scenario the precedent has already been set in the 5th, why would the Supreme Court hear it again?
A circuit split on an issue is one of the factors that traditionally weighs in favor of the Supreme Court hearing it, in the interests of uniformity of the law.
If the Supreme Court likes the 5th Circuit rule, they take the case it make it the rule, period.
No, the way this works is, now you have a circuit split (the 9th says one thing, the 5th says the opposite). So when the person who lost in the 5th circuit appeals, the Supreme Court takes it, and whatever they decide is binding on both the 5th and 9th circuits (and everyone else).
It’s easy to believe because they’re already doing similar things. The best publicized case was Rümeysa Öztürk, whose student visa was silently canceled over her exercise of protected 1st amendment rights. Normally, if there was a question about a visa they could handle the entire process in Massachusetts, which has a massive federal presence and where immigration cases have been handled without issues since about as long as we’ve had immigration law. Instead, the squad which abducted her off the street quickly took her through New Hampshire and Vermont on the way to Louisiana. There’s no reason to spend so much money on someone who isn’t a threat to anyone other than the Israeli government’s PR department unless the goal is to get them into a friendlier district before a judge can stop it.
> IANAL but isn't any ruling by even a lower court precedent?
"Precedent" can include both binding authority and persuasive authority. Any ruling (and lots of things which aren't rulings, like scholarly treatises), can be persuasive precedent, but trial court decisions are not binding precedent, even in the district of the court that issued them.
Only appellate court decisions are binding precedent, and only (basically) on courts subordinate to court making the decision.
Universal injunctions are superfluous. If the law says the government cannot do X, then who is a judge to command that the government not do X? That’s the legislature’s job. Judges have no authority to create rules saying people shall and shall not do certain things. That’s called passing a law. Similarly, when a party violates an injunction, who is the Judge to enforce his command? If it within a case or controversy between litigants, then that is one thing. When the judge they’re going to proactively punish someone any time the law as against anyone… that’s a purely executive function.
In terms of efficiency, it’s more efficient. Those in favor of universal injunctions are saying there should be hundreds of judges all racing to rule over the government, and to have their opinions control in the abstract as to cases that aren’t even before them.
If the government forces the same issue over and over there are plenty of remedies at hand: 1983 civil penalties against officers, sanctions against attorneys for frivolous arguments, and ultimately the court can hand the legislature everything it needs to impeach and remove a president by ruling that he / she is intentionally failing to enforce the law.
So the purpose of the judiciary branch is to interpret the laws. If a judge rules that the government is violating the law, you want the government to continue to be allowed to violate the law until the legislature convenes a hearing and rules and then what? The judiciary branch was able to rule on punishment for violating the rules, fines and jail time and what not. You would push all that to the legislature as well? Or would the legislature run a hearing and then ask the judiciary branch to pick the punishment and then have the legislature apply it?
I just don't understand how you expect this to work unless the point is to make the judiciary branch entirely pointless (for government level check and balances).
This is the same Supreme Court that granted the president immunity from any and all criminal charges as long they were made under the umbrella of the presidency. None of this is normal, and these are radical interpretations of the law explicitly designed to grant the president king like powers and reform the government into an authoritarian regime.
https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unit...
Sovereign Immunity is an idea that has a long precedence.
The Supreme Court was arguing that bad behaviour by the President is resolved through impeachment, and once they are out of office they are subject to criminal charges.
Almost any idea has long precedence, but the confluence of recent rulings, taken in its aggregate, provides a pretty well defined toolkit for a major departure from the normative state into the prerogative state. No amount of intellectual Zamboni reasoning can change the fact that it’s obvious to any rational observer that the U.S. is speed running an authoritarian takeover. Naturally some will support these changes and others will oppose them, but it’s as objectively verifiable as climate change; albeit, with the same chorus of denialism.
> If the law says the government cannot do X, then who is a judge to command that the government not do X?
The judge is the one that tells you that you are violating the law. The congress doesn't tell you that.
> Judges have no authority to create rules saying people shall and shall not do certain things. That’s called passing a law.
There is no law that bars a foreigner from becoming the US President. The judges have the authority to tell them that they cannot become the US President.
I've typed enough. Best case scenario is that you are have a spectacularly poor understanding of the US government. Worst case scenario is that you are concern trolling for the Mango Mussolini.
The constitution is the supreme law for that: “No Person except a natural born Citizen, … shall be eligible to the Office of President” “This Constitution, … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”
This administration does not really care about the rule of law. It cares to some degree about public perception. The timing of this ruling is about revoking birthright citizenship, which is a huge Constitutional trampling. There were opportunities four years ago for the SC to step in and they refused to intercede. For example, why didn't they rule in favor of executive authority when President Biden he tried to forgive student loan debt and a Federal Judge in Texas deemed it "unlawful"?
Now we get to see Americans have their legitimacy removed so they can be sent to "Alligator Alcatraz", the new prison being built just for them in the Everglades.
>why didn't they rule in favor of executive authority when President Biden he tried to forgive student loan debt and a Federal Judge in Texas deemed it "unlawful"?
Because it is unlawful. Student loan forgiveness is not an entitlement. College isn’t an entitlement. These are the facts. Moreover, college is a privilege, and it’s a choice, and at its core it is an investment into your future. Having the government forgive it implies the taxpayer will pay for it. That means that essentially people who chose _not_ to go to college, by their own choice or due to their own circumstances, now have to pay for the investments of the people who chose to go. College educated people tend to make much more money too, so in essence you’ll literally be taking money from the less privileged and giving it to the more/rich. And this would be done by force. In what way would that be lawful? Why would others have to pay for yourpersonal investments? You took out a loan, you pay it off. Leave everyone else out of it.
I noticed that you didn't address the question of whether birthright citizenship is an entitlement, because it's kind of hard to argue with the Constitution on that point.
Secondly, something that is lawful does not need to be an entitlement. If a president can declare an air strike, costing hundreds of millions of dollars -- which I may not consent to as a taxpayer -- then he can forgive loans. The argument that the federal judge in Texas made regarding student loan forgiveness not applying to everyone could be made to PPP loan forgiveness for businesses. (I have a business but didn't receive free money.)
Are you against public school in general? Should the childless be forced to pay? Are you against public roads? Should the car-less be forced to pay? Are you against firefighters? Should those not currently involved in a fire be forced to pay?
I guarantee somebody else has paid for something they haven't used that you have. We're a society. Part of that is sharing costs. Big reason so much is so fucked up right now is because we're doing a bad job of it.
I am against rich people putting their kids in private school on credit then having that debt "forgiven" and paid for by people who sent their kids to public school.
I am sure those kids are getting a benefit from private education. That doesn't mean I should bail them out and pay their bill
Firstly, I don't think you're engaging in good faith. I won't humor shotgun questions like yours. They're not even on topic. If you want to talk about these topics, then we do them separately and one at a time. Those are my terms. Secondly, just because I participate in a society doesn't mean I agree with how it's run or that I don't see room for improvement. That argument boils down to a Mr Gotcha comic.
Here's a good start. Don't have people who don't make the choice to take out loans be forced to pay off those loans. I don't think it's unreasonable that you bear the costs of your _personal_ investments for your _personal_ future. Whether or not society as a whole benefits from it is besides the point. They are _personal_ investments at their core, and they can be paid off with your higher future income. Borrow against your future, not mine. Society's part is contributing to your higher income through business at each individuals' personal discretion. Don't make the mistake thinking anybody owes you anything more. You're not entitle to a higher income even if you went to college. When you made a bad investment, you pay for it. I'm not paying for your lesbian dance theory degree, and neither is the plumber making a living without some degree.
I have zero student loans FYI. Never had any either. Nor do I have a lesbian dance theory degree. I have been lucky not to need them. I don't think you're engaging in good faith.
My questions are related to get you to realize there are things you probably use every day funded through taxes, that there are members of society that don't use those things or benefit from them but still pay for them.
People shouldn't be bound to debt because the second they legally turn 18 they get roped into financial matters they absolutely don't have the experience to fully comprehend. Nor are they fortune tellers that can tell if the in demand degree they are starting now will be still be in 4 years. Other debt can be discharged through bankruptcy. Yet, not student loans. Why are other bad investments treated differently?
Not everyone graduates high school either, yet we bare the costs of the personal investments of everyone that does. Education is both personal and an investment in society.
People spending money that is not theirs on services they themselves will not receive will care about neither the quality nor the cost of those services. But this at its core is exactly what the government bureaucrats do. If you listened at all to great economists like Milton Friedman then it’d be obvious to you why government spending inevitably leads to lower quality and more expensive services than those provided by a free market through the private sector. Moreover, this spending is done by force, meaning the government is violating your individual autonomy (and the autonomy of every individual they tax to fund this program) by removing your right to decide how you spend your money on services you need. We as a society don’t generally view force as a legitimating factor. We view consent as a legitimating factor, and these goods and services are just that; goods and services. And, like every other good and service, the free market is a solution to provide more variety of them at a variety of costs including ones affordable to you. There is a reason people choose to bring their kids to private school and many people who would otherwise choose to do so cannot because their income is taxed to fund public schooling.
The lesbian dance theory degree example is obviously an analogy to illustrate a bad investment and get you to understand the outrage of having to pay for someone else’s personal (bad) investments. 18 year olds are legally adults in the US and as adults they have the right to make decisions about their futures. But their inexperience does not absolve them of their responsibilities. And it’s not like they have to get a degree fresh out of high school either. They can choose to wait and watch the real world for a few years until they decide what they want to do with their lives. Stop infantilizing them.
If you’re asking me my opinion on discharging debts, I disagree with the concept in principle for the same reason as the original occupy wall street protesters. Businesses that fail, even if they are big, should not be bailed out at the taxpayers expense. Bad investments should fail; that is the risk you wager when you agreed to play that game. You don’t get to turn around and privatize the gains and socialize the losses. We live in a society.
Federal loans are serviced by unscrupulous middle men like Nelnet. Before I understood a thing about federal interest rates and that, at the time, they were quite high historically, they convinced me to "lock in" the interest rate with loan consolidation. Seemed smart, but they were acting in bad faith and not long after, we had the market collapse of 2007.
By the time my loans were discharged, I had fully paid the principal and was treading water on interest. Because I paid the minimums, the interest itself had risen to above the cost of the original loans based on those high interest rates I consolidated with. I would call it predatory, and as far as I'm concerned, my debt between me and the Federal government is paid for by me. Nelnet be damned.
Becoming a doctor, lawyer, scientist, or engineer is a personal choice, and a personal investment. You don’t get to socialize the costs and privatize the gains for your personal benefit in the name of “society”. If you need to take out a loan, borrow against your future, not everyone else’s. You’ll be making more money later so it’s not like you can’t afford it anyways.
However you can't protect yourself against all kind of things happening, like pandemic affecting your ability to work.
In cases of emergencies government can and often does intervene (see housing crisis, airlines during covid etc). Why wouldn't government offset something like this in case of student loans during emergencies?
In the end this was a statue (https://en.wikipedia.org/wiki/Higher_Education_Relief_Opport...) Biden was using for loan forgiveness. According to current Supreme Court (at least when Trump is a president) court shouldn't be deciding (in a lot of cases) over executive when its assessment of a situation is correct. However the court did it with Biden.
You're framing it like it's black and white and it's obvious loan forgiveness is wrong/illegal. Nah, it's not obvious, we did have an emergency and it might have needed exceptional solutions to it (in this case with student loans).
> And if they never win, then the issue is more about legal resources than anything else, no?
Right. If the government wants to take a very broad action, it is happy to eat some individual losses here and there. Most people won't be able to sue.
High likelihood and even Mustice Thomas mentioned it being high.
Even then, it only affects those in the class. E.g., it wouldn’t stop across the board federal enforcement as unconstitutional. It would take take a better part of a decade for that class action to move forward.
Strategically, the government could enact a policy affecting a million people, be sued, lose, provide relief to the named plaintiffs, and then not appeal the decision. The upper courts never get the opportunity to make binding precedent, the lower courts do not get to extend relief to non-plaintiffs, and the government gets to enforce its illegal policies on the vast majority of people who did not (likely could not) sue.