von TJORBEN STUDT
In Trump v. CASA, the US Supreme Court not only provided a procedural ruling, but also significantly altered the constitutional framework. By limiting universal injunctions issued by federal courts against executive actions, the court deprived the judiciary of the ability to effectively check the executive. Even patently unconstitutional executive orders can stay in effect for everyone except the ones directly appealing. This is, in my opinion, a legal coup d’état: the deliberate disempowerment of the judiciary to guarantee presidential autocracy.
The US Supreme Court ruled that federal courts lack the authority to issue universal preliminary injunctions that, in the specific cases before it, suspended the executive order (No. 14160) on birthright citizenship, which was intended to significantly reinterpret the naturalization principle formulated in the 14th Amendment of the US Constitution – contrary to the clear language of the US Constitution. The fundamental legal issue was thus not the constitutionality of the executive order itself. Trump’s administration was primarily concerned with creating a scenario in which (potentially) unconstitutional executive actions could not be universally restricted under the rule of law. This would allow such actions to continue despite their unconstitutional nature. From now on, federal courts may only issue preliminary injunctions solely between the parties directly involved in the lawsuit.
The court merely left the door open for a universally similar effect by class actions for all members of the “class” or where administrative reasons call for suspension of the executive order. However, it should be noted that the determination of the class under Rule 23 is subject to narrowly defined criteria and is not likely to extend to a universal injunction in every case. Additionally, the government’s increasing political and social pressure on the rule of law, renders this protective mechanism significantly more challenging to implement. It cannot be discounted that Rule 23 will be applied rigidly in the event of a new appeal before the US Supreme Court.
Recourse to the equity principle of the 18th century as a justification
The court bases its decision on a narrow historical interpretation of the “equity-principle” dating back to the jurisprudence of the High Court of Chancery in England at the time of the founding of the US. This principle, underlying the Judiciary Act of 1789, which established the federal court system, should have provided for complete relief only “to the plaintiffs before the court” and not to everyone effected. Furthermore, the majority clearly states, that “the Judiciary does not have unbridled authority to enforce” the obligation of the executive to comply with the law.
The dissenting opinions
The liberal minority of judges openly criticized the decision. The limited practical enforceability of constitutional rights could result in the rule of law becoming a secondary issue. This would be particularly worrying in serious cases where executive measures have broad and systematic effects.
Furthermore, the decision appears to erode the core democratic equitable distribution of rights and the role of the courts to ensure the universal obedience to the law. The executive would now have the authority to deprive individuals of their constitutional rights. The burden would then fall upon these individuals to regain their rights through appeal. The Constitution seems flipped on its head. Rather than ensuring the protection of rights through a governing system, the executive would now be able to act freely without restriction as a matter of course, unless the person concerned expressly invokes the law’s protection. The result is a legal patchwork that opens a zone of lawlessness for the executive.
A state of uncertainty is created
If, for example, executive orders strip birthright citizens of their citizenship and render them unlawful residents, who should know whether the person once again enjoys the full protection of the rule of law: Will ICE (U.S. Immigration and Customs Enforcement) agents determine whether the person being arrested belonged to a “class” in a class action or sued the government individually and is protected by individual relief? What happens to newborns: Do they become stateless? Will they be deported right away from their mother’s arms?
Cynicism of institutional self-denial
Furthermore, the ruling clearly underestimates the immense authority exercised by the executive branch – a power that has been further consolidated by the immunity ruling of the US Supreme Court. The law, as a fundamental democratic consensus that establishes limitations on executive power, should not be violated without consequences. As Justice Jackson clearly articulated in her dissenting opinion, the primary function of the courts is to order everyone to follow the law.
The invocation of historical equity law is not an expression of constitutional fidelity. Rather, it is indicative of a cynicism of institutional self-denial. It means transferring judicial functions to the executive. Even in cases where the unconstitutionality of executive actions is obvious and violates “countless individuals’ constitutional rights”, the courts would not have the authority to grant universal relief. This allows a basic authoritarian logic to prevail: the strengthening of the executive branch while weakening both the judiciary and civil society, which is also evident in the US Supreme Court’s decision on the legality of closing the Department of Education.
A comparison with Germany
However, it would be wrong to criticize the decision from a German perspective without taking into account that in Germany, too, the actions of the executive are not subject to review by administrative courts in the form of “universal injunctions”. The only exception is the review of specific statutory instruments as outlined in Sec. 47 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung). Nevertheless, there are fundamental differences between the two legal systems. In Germany, the issuance of statutory instruments (Rechtsverordnungen) is only permissible under Art. 80 of the Basic Law (Grundgesetz). The legitimacy of such actions depends on the existence of explicit authorization granted within the confines of prevailing legislation – a requirement that does not exist under US law. In the US, the power to enforce executive orders is an unwritten component of presidential power (Art. II of the US Constitution). Therefore, executive orders can become law without the involvement of Congress and can be used to reinterpret constitutional norms – a process that is fundamentally impermissible in the German legal system. Furthermore, in the US, federal courts are permitted to review laws for constitutionality and declare them null and void. In Germany, the power to declare a law null and void on the grounds of violating the constitution is exclusively vested in the Federal Constitutional Court (Art. 100 of the Basic Law).
Conclusion
The erosion of the rule of law begins and manifests itself in circumstances where judicial bodies are deprived of their ability to effectively scrutinize the actions of the executive, or where they relinquish this authority themselves. The judiciary is democratically obligated to constrain the executive power and order it to follow the law.
In a world where authoritarian tendencies are increasingly masked by legal justifications, where the rule of law is deliberately weakened and the implementation of authoritarian principles is legitimized, the most dangerous constitutional body is not the one that seizes power through a coup. It is the one that deliberately rejects its own democratic guardian function and promotes the creeping delegitimization of the rule of law.
Zitiervorschlag: Studt, Tjorben, Trump v. CASA – A judicial coup d’état?, JuWissBlog Nr. 68/2025 v. 31.07.2025, https:/www.juwiss.de/68-2025/
