Cooper v. Aaron offered a gratutious paean to judicial supremacy, one unnecessary to resolve the case at hand (whether Arkansas official could delay implementing a court order compelling desegregation of Little Rock schools). The District of Maryland makes the same gratuitous move in enjoining enforcement of Trump’s new anti-birthright citizenship E.O. On p.26, Judge Boardman writes:
The Supreme Court has spoken: Children in the certified class are “citizens at birth.” Barbara, 146 S. Ct. at 2450. Barbara is the law of the land. The President must follow it. See Marbury v. Madison, 5 U.S. 137, 178 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).
As in Cooper, this is wrong. As in Cooper, it is unnecessary to this case, other than as a shot at an admittedly recalcitrant President (much as Cooper took shots at recalcitrant Southern officials).
The President must follow Barbara as to the parties (a large, nationwide class) in Barbara. But that is not at issue in the distinct case of CASA. The President also must follow an existing order in CASA as to the parties in CASA, because the district court followed Barbara and entered a distinct injunction prohibiting enforcement against a distinct large class. Everyone agrees the President must obey binding judgments, including the one it previously entered. As in Cooper, the court did not need to drag Marbury into this.
Moreover, this is not the departmentalist case Justice Jackson and others fear: The President, having been enjoined from enforcing the 2025 E.O. against X, attempts to enforce the 2025 E.O. against Y, forcing Y to bear the cost and burden of litigation to protect her rights. (Again, by certifying classes and entering classwide injunctions in CASA and Barbara, the district courts protected all targets of the 2025 E.O., leaving no one against whom the President could enforce).
Instead, this case involves the President attempting to issue and enforce a new E.O., issued in the wake of Barbara, which he (presumably) believes is consistent with the Fourteenth Amendment as interpreted in Barbara. (It is not for the most part, as Ilya Somin and others argue and as the district court held). But even where the President intends to follow judicial precedent (even for practical reasons of avoiding another judicial loss), he must have the leeway and discretion to pursue different laws and policies and to test the metes-and-bounds of that judicial precedent. If the new policy effort does not satisfy that judicial precedent, the district court can say so. But suggesting that the President fails to follow Barbara by testing its scope disregards the lawmaking process and how lawmaking should function. Even in a judicial supremacist world, the judiciary’s final word cannot extend this far.
Note that this is non-partisan. President Trump, the Court having declared invalid his initial broad anti-birthright-citizenship E.O., can attempt a scaled-back effort to limit birthright citizenship and see what the courts do. Similarly, President Biden, the Court having declared invalid his attempt to forgive student loans under one law, could attempt a smaller effort under a different law and see what the courts do (they declared the second effort invalid). But any President must have room to try.