Procedural puzzles and Trumpian abuses

Some links and brief comments as litigation swirls around the Trump Administration's various abuses of power.

1) Sam Bray on DOJ's too-clever-by-half insistence that it did not violate the injunction barring removal of gang members under the Enemy Aliens Act because the plane had left US airspace. Bray explains that equity applies to the person, not the place.

I argued against the term "nationwide injunction" (and in favor of universal or non-particularized) because it allows this geographic point to leak in. An injunction applies to the defendant everywhere the protected person goes. So an injunction issued in the District of Columbia prohibiting enforcement of a law against the plaintiff protects the plaintiff and prohibits enforcement against him wherever he goes. A term such as "nationwide" allows DOJ to argue--however disingenuously--that the injunction does not go beyond the nation.

2) Competing takes--one from Sam, one from Steve Vladeck--on DOJ's emergency petition in the birthright citizenship case, which seeks a stay to pare back the injunction's universality.

3) A procedural question off Trump's new nonsense that the pardons of January 6 Committee members are invalid because done with an autopen: Does Liz Cheney or another person have standing to bring an EpY challenge to any prosecution or is such challenge ripe? Ordinarily the answer would be no because the prosecution and the constitutional issues are too speculative. But: 1) Trump has made it clear that he is coming for them (and under the unitary executive we need not wait for DOJ) and 2) the constitutional issue--the validity of the pardon--is obvious and present, regardless of what charges they bring.

By the way, Sam's posts appear on the new Divided Argument blog, a group blog by a group of top Fed Courts types, including Richard Re, who will be blogging there rather than here in the future. Subscribe and bookmark.