Howard Wasserman (Florida International University (FIU) – College of Law) has posted Constitutional Litigation After Trump v. CASA on SSRN. Here is the abstract:
Trump v. CASA resolved a decade-old scholarly debate about whether federal courts can grant "universal" injunctions in constitutional cases-injunctions prohibiting the executive from enforcing the challenged law to all persons subject to the law, beyond the plaintiffs to the action. A 6-3 Court said federal courts could issue remedies necessary to accord "complete relief to the plaintiffs," without the power to protect non-parties.
The various opinions in CASA offer competing visions of litigation, adjudication, and judicial decisionmaking. The case plays and will continue to play an essential role in ongoing challenges to E.O. 14160, other challenges to Trump Administration policies and regulations, and all constitutional litigation. This essay explores four issues of constitutional litigation and adjudication that CASA explains, undermines, alters, or strengthens. First, the Court adopts the appropriate label for these overbroad injunctions-universal; this extends the scope issue to encompass challenges to federal and state law. Second, the Court divided over competing models of the judicial role and power, with the majority settling on a form of "Supreme Court Supremacy," in which the Supreme Court (but not lower courts) establishes constitutional law for all. Third, the Court identified four paths through which plaintiffs may achieve broader relief, without courts issuing universal injunctions. Finally, complaints about the Court using this case to resolve the simmering debate over universal injunctions reveal and resolve important issues about constitutional litigation and about the scope-of-injunction controversy.
Recommended.