THE NEWS

Authored by Jonathan Turley,

Today, the United States Supreme Court will hear three consolidated cases in Trump v. CASA on the growing use of national or universal injunctions. This is a matter submitted on the “shadow docket” and the underlying cases concern the controversy over “birthright citizenship.” However, the merits of those claims are not at issue. Instead, the Trump Administration has made a “modest request” for the Court to limit the scope of lower-court injunctions to their immediate districts and parties, challenging the right of such courts to bind an Administration across the nation.

The case is the consolidation of three matters: Trump v. CASA out of  Maryland; Trump v. Washington out of Washington State, and Trump v. New Jersey, out of Massachusetts. These cases also present standing issues since the Administration challenges the argument that there is a cognizable “injury” to individuals who may travel to the states bringing the actions.

However, the main question is the scope of injunctions.

As I have previously written, district court judges have issued a record number of injunctions in the first 100 days of the Trump Administration. 

Under President George W. Bush, there were only six such injunctions, which increased to 12 under Obama. 

However, when Trump came to office, he faced 64 such orders in his first term.

When Biden and the Democrats returned to office, it fell back to 14. 

That was not due to more modest measures. 

Biden did precisely what Trump did in seeking to negate virtually all of his predecessors’ orders and then seek sweeping new legal reforms. He was repeatedly found to have violated the Constitution, but there was no torrent of preliminary injunctions at the start of his term.

Yet, when Trump returned to office, the number of national injunctions soared again in the first 100 days and surpassed the number for the entirety of Biden’s term.

This is a rare argument. 

First, it is a shadow docket filing that usually results in summary decisions without oral argument. Moreover, this matter came after what is commonly viewed as the final day for oral arguments. The Court granted a rare late oral argument, reflecting that multiple justices view this matter sufficiently serious to warrant a break from standard operating procedures.

Rather than arguing a “question presented” on birthright citizenship, the Administration is solely looking for limits on the district courts as appeals continue on the “important constitutional questions” raised by birthright citizenship.

The Administration argues that the Constitution does not give judges the power to issue universal injunctions and that courts are limited to addressing the cases before them in a given district. The Administration acknowledges that class actions can create the basis for universal injunctions, offering a moderate resolution to the Court. In such cases, if the parties can meet the standard for a national class, they can seek a national or universal injunction.

In today’s arguments (which I will be covering for Fox and on X), we can expect to hear from justices who have previously been critical of universal injunctions, including Justice Clarence Thomas, who, in his concurring opinion in Trump v. Hawaii, called them “legally and historically dubious.”

Likewise, Justices Gorsuch and Alito have criticized such injunctions. In a prior dissent to an emergency filing in Department of State v. AIDS Vaccine Advocacy Coalition, Alito was joined by Thomas, Gorsuch, and Kavanaugh in stating that the government “has a strong argument that the District Court’s order violates the principle that a federal court may not issue an equitable remedy that is ‘more burdensome than necessary to’ redress the plaintiff’s injuries.”

Many of us will be watching three members the most closely: Chief Justice John Roberts and Associate Justices Elena Kagan and Amy Coney Barrett. Roberts is the ultimate institutionalist, and we should see in his argument how he views the impact of such injunctions on the court system as a whole. He is very protective of the courts’ inherent authority but may also have misgivings about the scope of these orders.

During the Biden Administration, Justice Kagan has previously criticized universal injunctions. In an interview at Northwestern University Law School, Kagan flagged the “forum shopping” by litigants in filing cases before favorable courts:

“You look at something like that and you think, that can’t be right. In the Trump years, people used to go to the Northern District of California, and in the Biden years, they go to Texas. It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.”

Justice Barrett previously joined with Kavanaugh in stating that the power of district courts to enter a universal injunction “is an important question that could warrant our review in the future.”

The argument today will start at 10 am and I will be doing a running review of the arguments on X.

U.S. Solicitor General D. John Sauer will argue the government’s case.

Jeremy Feigenbaum, New Jersey’s solicitor general, will argue for the state and local governments and  Kelsi Corkran, the Supreme Court director at Georgetown’s Institute for Constitutional Advocacy and Protection, will argue for the private individuals and groups.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University where he teaches a course on the Supreme Court and the Constitution.

Russian President Vladimir Putin’s investment envoy and close aide, Kirill Dmitriev, has praised US President Donald Trump for putting together Russia-Ukraine peace talks in Istanbul, the first such direct dialogue between the warring countries since early 2022.

Trump and his team have “made the impossible possible” by bringing Moscow and Kiev to the table. Dmitriev further wrote on X that the Istanbul meeting is happening “against all odds/fierce resistance” and that if “not derailed last-minute, this could be a historic step to peace.”

Dmitriev also specifically named Vice President J.D. Vance, Trump’s special envoy Steve Witkoff and Secretary of State Marco Rubio – the latter two who are present in Istanbul – as major contributors to the mediation effort. The Kremlin had spent the opening years of the conflict blasting the Biden administration for constantly stoking the war and thwarting dialogue, taking Washington-Moscow relations to new historic lows.

As we noted earlier, Ukraine’s President Zelensky is actually in Istanbul, where he’s set to meet with President Erdogan, and has boasted that “I am here” and that Putin is not. Zelensky has even called the Russian delegation, largely composed of junior officials, “phony”. 

President Trump meanwhile, while attending meetings in Qatar, was asked by a reporter why the American leader is not himself present in Turkey for the talks:

“Why would he go if I’m not going?”

“I wasn’t planning to go and I didn’t think he would if I didn’t.”

“But we have people there. Marco’s doing a fantastic job, Marco’s there…”

It remains that Putin has little reason or incentive to go, with war analysts widely recognizing that he remains in the driver’s seat militarily, and with Ukrainian forces against the ropes.

Zelensky has until now offered no major concessions, and issues like permanent control over Crimea and the four eastern territories remain sticking points for Moscow. Thus there are unlikely to be any major breakthroughs in Istanbul, but the fact that the two sides are even at the table is a big accomplishment.

Below is an important rundown of what’s expected in Istanbul and what’s at stake for both sides, excerpted from fresh Responsible Statecraft analysis, Istanbul 2.0: know when to hold ’em, know when to fold ’em:

* * *

What has changed since then?

Ukraine will enter the Istanbul talks in a weaker position that it held in 2022.

Western support for Ukraine financially and economically is not as sound as it was then. No big ticket economic aid and assistance has been made available since the G7 agreement of a $50 billion package of loans, in June 2024. While European states scratched together new economic aid to Ukraine in April, this cannot make up for the reduction in US support.

In territorial terms, Russia withdrew from Kyiv as a concession to the first Istanbul talks and lost ground in Kharkiv and in Kherson in late 2022. However, Russia has gone on steadily to gain further territory in the Donbas since the end of 2023. So while both sides have scores on the board, Russia now maintains the military upper hand on the battlefield and that seems unlikely to change. These two factors in particular were behind President Trump’s February assertion that Ukraine has no cards to play.

What has stayed the same?

NATO membership is still off the table

The verified documents shared by the New York Times last June confirmed that Ukraine’s neutrality and non-membership of NATO was the central issue agreed upon in 2022. Ukraine was ready to become a “permanently neutral state” that would never join NATO or allow foreign forces to be based on its soil.

There seems no route for Ukraine to resile from that given its currently weakened negotiating position and President Trump’s stated view that NATO membership for Ukraine is not practical. Although Germany’s new foreign Minister, Johann Wadephul recently repeated the line that Ukraine’s path to NATO is irreversible, most have agreed, privately and publicly, that Ukraine’s path to NATO is a fraught if not impossible one.

Right now, just having the talks is a huge breakthrough

The Istanbul talks would not be happening had the Trump administration not pushed for it so hard. We don’t need to rehash the “did they or didn’t they” debate around why Ukraine abandoned the Istanbul agreement in April 2022. What is clear, is that Ukraine became entrenched, not only in not negotiating with Russia, but in excluding Russia from all discussions on peace in Ukraine from then onward.

Having agreed in principle for Ukraine to accept neutral status Zelensky was pushing his own ten point peace plan. This included, among other things, Russia withdrawing its troops to the pre-2014 border, i.e. giving up Crimea and the Donbass and creating a Euro-Atlantic Security Architecture, by which he meant Ukraine joining NATO. Peace summits were organized in various countries that explicitly excluded Russia, culminating in the Switzerland event on June 15, 2024.

At this event, President Zelensky was dug in deeper on resisting any engagement with Russia until a full withdrawal of its troops from Ukraine, which was a completely unrealistic proposal. “Russia can start negotiations with us even tomorrow without waiting for anything – if they leave our legal territories,” he said.

Even after President Trump was elected, European leaders clung to the line that “only Ukraine can decide what peace means.”’ I see no circumstances in which a Kamala Harris presidency would have cajoled President Zelensky to enter into negotiations. Tomorrow’s talks wouldn’t be happening unless the Trump administration broke a whole load of Ukrainian and European eggshells to get to this point.

And Responsible Statecraft continues:

The biggest issue now is territory

Even though he was wrongly derided at the time by mainstream media, Steve Witkoff correctly pointed out in his March interview with Tucker Carlson that the territorial issues in Ukraine will be most intractable. Russia’s decision in October 2022 to formally annex the four oblasts of Kherson, Zaporizhzhia, Donetsk, and Luhansk changed the calculus. However, Russia does not have full territorial control of any of those oblasts, which are cut through the middle by a hotly contested front line.

Resolving the line of control when the war ends is, by some margin, the most problematic challenge. This will be a hugely sensitive topic, and European allies will shoot down any major concessions to Russia, as they did when the idea surfaced that the U.S.might de jure recognise Russia’s occupation of Crimea.

The most obvious settlement is a de facto recognition of occupation, a Cyprus-style scenario, that does not stand in the way of Ukraine’s future membership of the European Union. Even that will require detailed agreement on issues around demilitarization of the line of control and enforcing any ceasefire.

Sanctions are probably tricky, but also tractable

As I have said before, there is enormous scope to a plan that allows for the immediate lifting of the bulk of zero-impact measures, phasing out the remainder at points agreed to by both sides. The toughest issue remains the $300 billion in frozen Russian assets, mostly held in Belgium. Russia has shown a willingness to concede this funding to support reconstruction in Ukraine, including those parts that Russia occupies.

But there is texture here. Freeing up those funds for reconstruction would immediately remove the source of interest payments that are meeting Ukraine’s obligations on its $50 billion in debt to the G7, agreed to in June 2024. But the more general policy question arises, how much of the freed up funding would be spent in Ukraine itself and how much in Russian-occupied Ukraine, where most of the war damage has occurred? The U.S. must keep the pressure on to ensure the talks stay on track.

A U.S. presence in Istanbul will be vital, to prevent, in particular, Ukraine from bailing on the talks. That’s why sending Steve Witkoff and Keith Kellogg makes sense. The former is trusted by the Russian side while the latter has built relationships in Ukraine. Their presence serves to keep the process moving forward until a deal can be pushed over the line and the fighting can stop.

Bear in mind that the 2022 talks ran for a month and a half and the circumstances have materially changed as I have indicated above. While there has been speculation that President Trump might drop into Istanbul, I am not sure that this is necessary if President Putin doesn’t himself attend. Knowing the Russians, I assess that Putin will want his own “‘meeting moment” with the U.S. President on terms that the Russian side can better choreograph. Indeed, that may be a prize for Russia’s engagement in the process, given its desire for a more comprehensive reset of relations with the U.S.