Trump v. CASA sent me into a tailspin. It’s not that it was logically indefensible, equity powers are meant to be limited, and they are being used more broadly than they have been in the past. Equity has to be kept in check or the legal system sort of dissolves, and explaining that would require a rabbit hole that we don’t have time for. I am not sure that the line drawn in CASA makes sense, but the fact that a line exists is not totally out of the realm of reason.
But, the CASA decision essentially removed the only available tool to stop unconstitutional actions by the Executive Branch before they are able to do damage, an ad absurdum, logical impossibility. Case law recognizes that damage from deprivation of Constitutional Rights can be inherently irreparable, and therefore allowing it to continue seems logically unthinkable. And yet, the CASA case left us with little escape from that determination.
And then today, Justice Thomas denied a Stay in UTHMEIER, FL ATT’Y GEN., ET AL. V. FL IMMIGRANT COALITION, ET AL. with no further explanation. A review of the facts of this case finds, as with CASA, a limited pool of Plaintiffs, a law that appears facially unconstitutional, and a lower court order enjoining its enforcement well beyond the equitable limits proscribed in CASA. The injunction states that no law enforcement officers in the State of Florida may enforce a Florida Immigration statute until the case is decided. Although the enjoined party, essentially the law enforcement arm of the executive branch of a State, may seem different from the executive branch of the federal government in scope, it does not change the argument that equitable remedies should be limited to Plaintiffs. This point was made particularly clear in Thomas’s concurrence in CASA.
It is therefore only possible that some sort of equitable remedy exists for the lower courts to enjoin broader parties in some circumstances, though that circumstance remains unclear. Or perhaps an alternative reading is that because this injunction is effective against an agency, rather than the broader executive branch, it is inherently limited in scope, or allowed through some version of the Administrative Procedures Act. It is unclear what Justice Thomas’s reasoning was for denying the stay requested by the State of Florida, but whatever it was, it seems out of sync with the broadest reading of the CASA decision, and particularly with his own concurrence.
One way or another, this two line denial has given a glimmer of hope that there is an escape hatch through the CASA wall, and we may have accidentally found it already. Though the exact path and circumstances that will allow these broader equitable remedies remains obscured, it is clear that some equitable remedies can be applied beyond the scope of the Plaintiff pool. And that means that a path to overcoming unconstitutional actions by the executive must exist somewhere. We may just need a little trial and error to find it.
(See what I did there?)
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