Trump Solicitor General Hedges on Always Following Court Orders

President Donald Trump’s top lawyer at the US Supreme Court declined to say that the administration would apply a federal court ruling’s reasoning to other cases in all circumstances.

The federal government will “generally respect circuit precedent, but not necessarily in every case,” Solicitor General John Sauer told the justices during oral arguments Thursday over Trump’s birthright citizenship order.

Several administration officials, and even the president himself, have suggested that the executive doesn’t need to follow what it sees as unlawful judicial actions, raising concerns of a potential constitutional crisis.

Sauer’s comments echoed those he made during his confirmation hearing Feb. 26, at which he said that “generally if there’s a direct court order that binds a federal or state official, they should follow it.”

But he wondered whether the US would have been better off if the president had declined to follow the court’s infamous 1944 ruling in Korematsu v. United States, in which the justices upheld the internment of Japanese Americans.

Sauer represented then-candidate Trump at the Supreme Court in his successful bid for presidential immunity for crimes related to the Jan. 6 Capitol attacks.

General Practice

Sauer’s latest remarks came as the justices are considering whether to limit the scope of relief that lower courts have granted to states and immigrant groups challenging the president’s efforts to narrow birthright citizenship.

Three federal trial courts have prohibited the administration from enforcing the executive order, or EO, against anyone while the cases make their way through the federal courts.

The Justice Department has asked the justices to limit relief to only the parties to the dispute, meaning that the EO could go into effect against others. Sauer told the justices that each individual challenging the birthright citizenship order would need to sue in order to bar the government from enforcing it against them.

Several justices pressed Sauer on what that would mean in the interim, given that it could take months or even years for the Supreme Court to definitively resolve the issue.

Justice Elena Kagan asked whether a federal appellate court order would be broadly binding across the circuit, or if individual plaintiffs would need to secure their own victories. “Does the government commit to not applying its EO in the entire Second Circuit or does it say, no we can continue to apply the rule as to everybody else in the Second Circuit?”

“I can’t say as to this individual case,” Sauer said. “Generally our practice is to respect circuit precedent within the circuit, but there are exceptions.”

Kagan interjected: “Yes, it is generally your practice. And I’m asking whether it would be your practice in this case.”

“I can’t answer it because it would depend on what the Second Circuit said,” Sauer said.

Justice Amy Coney Barrett later asked Sauer to clarify. “Did I understand you correctly to tell Justice Kagan that the government wanted to reserve its right to maybe not to follow a Second Circuit precedent in New York because you might disagree with the opinion?” she asked.

Sauer said the Trump administration’s practice was consistent with the longstanding practice of the Justice Department across presidential administrations. “Our general practice is to respect those precedents, but there are circumstances when it’s not a categorical practice.”

“So you’re still saying generally?” Barrett asked.

That narrow vision of what’s binding on the federal government is a practical victory for the administration, Kagan suggested.

Noting that the government is “losing everywhere” on the birthright citizenship question, Kagan said there would be no incentive for the Trump administration to bring the issue to the Supreme Court for a decision that would bind the entire country.

“The government has no incentive to bring this case to the Supreme Court because it’s not really losing anything,” Kagan said. “It’s losing a lot of individual cases, which still allow it to enforce its EO against the vast majority of people to whom it applies.”