The legal question in Trump v. CASA, Inc., is whether district courts can issue nationwide injunctions against the federal government’s nationwide actions.

The legal question at issue in Trump v. CASA, Inc., the Supreme Court case arising from Donald Trump’s executive order on birthright citizenship, is whether district courts can issue nationwide injunctions against the federal government’s nationwide actions — and, if so, whether they can do so without first going through the full process required by the Federal Rules of Civil Procedure to certify a class action and thus ensure that everyone with a personal stake in enforcing the injunction is actually a formal party to the case.

The strictest reading of the judicial power under Article III — the text of which is far from explicit on the point — is that a court has power only over cases and controversies between particular parties, and therefore courts have no power to issue orders that decide the rights of non-parties to a case. If the court denies relief, did the non-party lose without ever being represented before the court? If the federal government violates the order by doing something to someone who was never a party to the case, can that non-party invoke the court’s contempt power? Can someone who has no standing to sue be the beneficiary of a court order? These are all questions to be balanced against the practical problem of having one federal government taking one nationwide action, which then applies differently in different jurisdictions.

As I wrote after the CASA argument, we could get a potential preview into the Court’s thinking on the strict reading of Article III from how it resolved Laboratory Corp. of America Holdings v. Davis, which was argued two weeks earlier:

The Lab Corp. case is framed as a question of Article III theory: Can a class action be brought when some class members would not have standing to sue, or must the class consist only of legal claims that each, individually, could have been brought in federal court? The justices, however, seemed disinclined at the argument to stand on Article III theory if they are not offered a practical way to make class actions work under Rule 23 of the Federal Rules of Civil Procedure if the rule against uninjured class members is absolute, rather than being an aspect of the Rule 23 practical inquiry into the manageability of the case as a class action.

The issue in Lab Corp. is important in its own right, after the Court created a mess in this area with its decision in Tyson Foods, Inc. v. Bouaphakeo (2016), a case that had strikes against it in terms of doctrinal clarity: that it was written by Justice Anthony Kennedy; that it involved some claims under the Fair Labor Standards Act, which has its own distinct procedure for collective actions; and that it involved a rare appeal of a class action after trial in which the defendant had arguably waived some of its stronger arguments and tried to salvage its concessions by changing tack on appeal. There remained, therefore, a good deal of ambiguity about exactly how much Tyson Foods could really be read as blessing classes containing uninjured class members.

Unfortunately, on a day of otherwise good decisions, the Court on Thursday dismissed Lab Corp. as improvidently granted, over a lone dissent by Justice Brett Kavanaugh. If Kavanaugh is to be believed, the Court yet again punted on this question because of a procedural quirk in how the case came up the ladder — but in this case, a deeply unfair one. The plaintiffs argued that the appeal from the original order certifying a class action was moot because the district court had later revised the class definition — which courts under Rule 23 can do as the case proceeds. The problem, which Justice Samuel Alito had focused on at the oral argument: Under Ninth Circuit rules, the defendant wasn’t allowed to appeal. As Kavanaugh explained:

According to plaintiffs, Labcorp should have somehow appealed the August order. Under Ninth Circuit precedent, however, Labcorp could not have appealed the August order because only orders “that materially change the original certification order” qualify as “appealable under Rule23(f ).” Walker v. Life Ins. Co. of Southwest, 953 F. 3d 624, 636 (2020) (emphasis added). And the District Court had explicitly stated that the August order did not make any material changes. Moreover, under the text of Rule 23(f ),a party may appeal only “an order granting or denying class-action certification.” The August order did not grant or deny class certification, as the District Court indicated. So to challenge the class definition under Ninth Circuit law, Labcorp could appeal only the May 2022 certification order. Labcorp did so.

It’s absurd for the Court to put a party in a position where merely by making small changes to an order, a district court can deprive the defendant of a right to appeal that is granted by the rules; it’s also absurd for the Court to demand that, in order to preserve a right to petition the Court for relief, a party file an appeal that would be considered frivolous under binding Circuit precedent.

Anyway, Kavanaugh cited the practical problems created by overbroad classes — i.e., excessive pressure on businesses to settle — and the terms of Rule 23 to conclude that “I would hold that federal courts may not certify a damages class pursuant to Rule 23when the class includes both injured and uninjured class members.” Thus, even his dissent doesn’t shed any light on the deeper Article III questions at stake.