TGIF: Liberty Requires Nationwide Injunctions

The government is always a threat. This we must never forget.

In that light, I want to examine the recent U.S. Supreme Court ruling in Trump v. CASA, the 6-3 decision that sided with the Trump administration's position that a federal district court exceeded its congressional authority when it issued a temporary nationwide, or universal, injunction against Trump's executive order redefining the post-Civil War 14th Amendment clause that affirms birthright citizenship.

The Supreme Court did not rule on the legality of that executive order. Rather, it ruled that the district court's temporary injunction against a "likely illegal" government action can apply only to the plaintiffs in the particular case and to no one else.

I will not comment on the ruling as a constitutional lawyer because I am not a constitutional lawyer (or any other kind of lawyer). Rather, I will look at the ruling as a libertarian, that is, as someone who believes that individual rights predate any government, as the Declaration of Independence states, and that, therefore, tight limits on government power are good. In general, when a federal district court rules that the government may not do something, pending final disposition of the case, that is a win for our rights to life, liberty, and the pursuit of happiness, which we theoretically celebrate today, July 4. Of course, under the American system, the executive branch may appeal federal court rulings it does not like to the next judicial level. Whatever the outcome, one of the parties may then ask the Supreme Court for a final ruling.

In certain cases, a lower court can issue a temporary preliminary injunction against a government action if the plaintiff persuades the judge that the executive branch has "likely" exceeded its delegated power and that the exercise of such power (say, deportation) would significantly harm the plaintiff. The injunction stays the government's hand pending appeal. The issue in Trump v. CASA is whether an injunction issued against Trump's ordered reversal of the Constitution on birthright citizenship applies to everyone in the country or only to the parties that brought the case.

Regardless of the current law or the legal history, a libertarian knows what the law ought to be. A preliminary injunction against the exercise of a particular power should apply nationwide. How could it be otherwise? The executive branch has two chances to reverse the lower court, but in the meantime, it should be barred from exercising the power. In other words, the presumption of liberty must be paramount. Any burden should be on the executive who wishes to restrict the activities and status of peaceful individuals. That burden should never be on the people.

Without nationwide injunctions, we could end up with a constitutional provision that applies to one or two people but not to anyone else. A president satisfied with that situation would abstain from appealing precisely to avoid an adverse nationwide ruling. That would be screwy. In effect, we'd have more than one constitution.

To address the situation, every potentially affected individual in the country would have to bring his own case. Think of the cost! Alternatively, affected individuals could potentially combine in a class-action suit, but neither of these is a good solution. Before filing a suit, a class must fulfill certification requirements, and that is no sure thing. Certification could be challenged by the defendant, that is, the president. (Other workarounds exist, but they have similar problems.)

The basic objection to the ruling is that barring nationwide injunctions substantially and unreasonably raises the cost of public challenges to government power. That is wrong on principle. The presumption of liberty dictates that such a burden should always be the government's. 

In Dependent on D.C.: The Rise of Federal Control over the Lives of Ordinary Americans (2003), Charlotte A. Twight deployed history and theory to show that, over many years, the U.S. government has systematically made the public's ability to monitor and challenge the government prohibitively expensive. So much for "democracy."

As I've written about Twight's book:

Twight’s thesis is that the people who run the government have a long list of ways to raise the “political transaction costs” that the taxpayers would have to overcome to keep the state in check....

As Twight puts it: [Political transaction costs] “are the costs to each of us of perceiving, and acting upon our assessment of, the net costs of particular governmental actions and authority.” Besides the inevitable and built-in transaction costs entailed by government, there are also “contrived” costs, that is, those “deliberately created by government officials to increase our costs of assessing and responding to government policies.” The array of devices to raise these costs ranges from needless complexity and secrecy to outright lying. These devices have one thing in common: they obscure the government’s activities, making it difficult to impossible to see what the state is up to. As a result, most people perceive that even trying to lift the government’s veil is essentially futile.

Trump's team contends that nationwide injunctions grind its agenda to a halt, possibly for years, as cases wend their way through the appeals process. That's good, no matter who the president is. But if that's a problem, it should be addressed by changing the procedures according to which "urgent" cases headed to the Supreme Court are expedited.

The U.S. Constitution was theoretically intended to limit government power on behalf of a free society. How has that worked out? (For a fuller story, see my America's Counter-Revolution: The Constitution Revisited.) As things now stand, a president can get away with unilaterally amending the Constitution. Something's wrong here.

The upshot is that the ruling in Trump v. CASA is a blow to freedom. Trump again shows his disdain for individual rights and the rule of law. Six justices have his back.

(See Ilya Somin's "A Bad Decision on Nationwide Injunctions.")

TGIF: Birthright Citizenship and the Constitution

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States....

—U.S. Constitution, Amendment XIV

Donald Trump says he wants a "revolution of common sense." If he means it, he will abandon his unilateral attempt to cancel birthright citizenship, which the 14th Amendment to the U.S. Constitution, ratified in 1868, expressly acknowledges. The opening words of that amendment have a common-sense meaning that requires grotesque mental contortions to evade.

Opponents of birthright citizenship will seek refuge in the amendment's legislative history and case law, but I don't see how that trumps the plain meaning of words. The amendment says that if you were born in the United States, you are a citizen unless a parent was a foreign diplomat. It's worth remembering that the debate over birthright citizenship is merely one part of the all-out assault on the freedom to move and work that Trump is spearheading. Since violations of this freedom affect foreigners as well as Americans, the controversy is worth paying attention to.

The Constitution does not instruct its readers on how to interpret its clauses. Common sense is called for, and no one applied common sense to the law more clearly than the 19th-century libertarian and constitutional scholar Lysander Spooner. Spooner was also an abolitionist during the slave era. He insisted, contrary to his fellow abolitionists, that the constitutional text did not sanction slavery. He spelled this out in The Unconstitutionality of Slavery.

Spooner insisted that the language of a constitution must not be interpreted contrary to the very purpose of the document itself unless the language was so unambiguous as to preclude any other interpretation. In the American case, a pro-liberty reading is required if it is not expressly ruled out. He proceeded to show that the purportedly pro-slave language of the Constitution had to be construed in a way that was consistent with individual natural rights and natural law because the purported aim of the Constitution was to protect natural rights. Nowhere in the original Constitution were the words slave or slavery used. He wasn't arguing that the framers did not intend to protect slavery. Rather, his point was that no one was bound by what the framers meant but did not say. That makes perfect sense. If those men wanted to say something, they should have said it. What stopped them? We have no obligation to perpetuate injustice.

"[I]n the interpretation of all statutes and constitutions," Spooner wrote, "the ordinary legal rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed 'strictly' in favor of natural right." (Spooner's emphasis.)

Also: "The legal rules of interpretation, heretofore laid down, imperatively require this preference of the right, over the wrong, in all cases where a word is susceptible of different meanings."

And "[A]n innocent meaning must be given to all words that are susceptible of it."

Surely, Spooner would have applied this principle to the opening words of the 14th Amendment. It's unclear what meaning, other than the natural-right meaning, could possibly be given to those words. Some will argue that the post-Civil War amendment was only meant to recognize the citizenship of the freed slaves. So why didn't they say that? We are not bound by a meaning that contradicts natural law if the text can be read otherwise. .

How do we know the plain meaning is consistent with natural rights and natural law? We know because only under the plain meaning will the state leave people alone who have violated no one's rights. That was the original American way. If you did not aggress against persons or property, you were unlikely to come into contact with government officers.

If Trump has his way, people who have harmed no innocent persons or property could be rounded up by armed government agents and exiled. That would violate those people's rights. Therefore, the pro-liberty meaning is the common-sense meaning and must prevail if the Constitution is to fulfill what we are told is its purpose: "establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity"

As Spooner put it, "[I]n order that the contract of government may be valid and lawful, it must purport to authorize nothing inconsistent with natural justice, and men’s natural rights. It cannot lawfully authorize government to destroy or take from men their natural rights: for natural rights are inalienable, and can no more be surrendered to government—which is but an association of individuals—than to a single individual."

The case presented here might seem to justify no more than legal residency. What about citizenship? To take that step, one need only consider that a legal resident is subject to the government's power to tax and regulate. Since his bid for exemption from U.S. government impositions would not be recognized, we are forced to the second-best disposition, namely, that the legal resident ought to have a say—as small as it is—over government policy, that is, the privileges and immunities of citizens. Those who are concerned that this could bring growth in an already overgrown government should turn their attention directly to the size and scope of the state, rather than seeking to limit individual rights. Besides, the offspring of American citizens have not exactly been genetically or culturally predisposed against big government, have they? Immigrants are not responsible for America's falling score on the world indices of freedom.

Ironically, anti-immigration action is what would make the government bigger and more intrusive. If you ask the state to "protect" the culture from foreigners, don't be surprised when you wake up in bed with a monster.

The Constitution has serious basic flaws, as Spooner himself would later elaborate in "The Constitution of No Authority," but as long as it's the supreme law of the land, liberty's advocates are obliged to push the interpretation that most constrains the state and expands freedom.

TGIF: Birthright Citizenship - Just and Justified

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” 

So says section 1 of the 14th Amendment to the U.S. Constitution. With the impeccable timing we’re accustomed to, Donald Trump says he will sign an executive order to nullify this constitutional provision by denying citizenship (which today includes the right to make a living among other important things) to persons born in the United States and subject to the jurisdiction thereof if their parents were in the country without the permission of the government.

Read TGIF at The Libertarian Institute.

TGIF (The Goal Is Freedom) appears on Fridays. Sheldon Richman, author of America's Counter-Revolution: The Constitution Revisited, keeps the blog Free Association and is executive editor of The Libertarian Institute. He is also a senior fellow and chair of the trustees of the Center for a Stateless Society and a contributing editor at Antiwar.com.

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