On the eve of the birthright citizenship case, it is useful to think back to last year. The Trump Administration could have rushed the merits to the Supreme Court, but instead only sought certiorari in the nationwide injunction issue. And to win that case, the executive branch sacrificed its own power. The Solicitor General said it would bind itself to the decisions of the Supreme Court. No decision, not Marbury, not Cooper v. Aaron, ever stipulated that point. Now a coordinate branch of government surrendered. And to what end? Was CASA such an important case that justified that unilateral disarmament?
I think the answer is no. In the year since CASA, there have been a never-ending spate of universal vacaturs against the executive branch. District Courts have certified classes on the fly. And the Supreme Court has shown no interest in clamping down this practice. And if, as expected, the Supreme Court strikes down the birthright citizenship order, all of this litigation will have been for naught. The executive branch is weaker because of this order. What was gained?
On the other side, the doomsday predictions from CASA simply have not come to fruition. Richard Re brings the receipts:
