The Supreme Court’s recent opinion in Trump v. CASA (the birthright citizenship case) contrasts with two of its opinions from a year ago, Fischer v. United States and Snyder v. United States, in at least the following way: the Court’s willingness to credit the Executive Branch’s promise to exercise its discretion wisely. In Fischer (which limited the reach of an obstruction statute) and Snyder (which limited the reach of a bribery statute), the Court narrowed certain criminal laws in part because of concerns that the Department of Justice might overreach. The Court’s opinions in those cases used edge-case hypotheticals to justify limiting the criminal statutes—even if those limitations were not apparent from the statutory text. (For example, in Fischer, Chief Justice Roberts wrote: “a peaceful protester could conceivably . . . face a 20-year sentence”; in Snyder, Justice Kavanaugh invoked “$100 Dunkin’ Donuts gift card for a trash collector” as a “gratuity” that could be charged as a federal crime). The Court was not soothed by the Department’s assurances that prosecutors would exercise their discretion wisely and refrain from bringing federal felony charges in some of the extreme situations the Court worried about.

In Trump v. CASA, though, the Court's majority appears to now have greater faith in the Department of Justice’s assurances. At oral argument, Justice Kagan asked Solicitor General Sauer what would happen if a lower court enjoined an executive action. What incentive would the government have to appeal and risk a universal injunction if the case reached the Supreme Court? Wouldn’t it just take the loss as to the existing party that had prevailed? Solicitor General Sauer promised the Court that the Administration would seek Supreme Court review in that situation. And in her majority opinion, Justice Barrett repeated that promise, and used it to justify (in part) to respond to concerns of the dissenting justices that the government could manipulate the system. (See footnote 18). If this position, in fact, reflects a newfound credence in this Department of Justice’s promises to exercise its discretionary authority in a certain way and avoid abuses, it begs the question: why? 

It could be that particular concerns about statutory ambiguity and overbreadth in the criminal law motivated the Court’s skepticism in Snyder and Fischer; Trump v. CASA is not a criminal case.  But those concerns are animated, at least in part, by the fact that individual liberty is at stake in the criminal law, a bedrock right in this country. Executive actions such as the order ending birthright citizenship threaten many individuals’ liberty interests as well.  

Or, it could be the Court has greater confidence in its ability to police criminal cases: it can dismiss them, and that is that. When it comes to executive action, the Court may be less certain that the Administration will abide by its injunctions. It may perceive the need to yield before it faces more defiance, in an attempt to protect its legitimacy from attack. Or, perhaps, the Court thought there was a greater likelihood of an overzealous prosecutor somewhere in the country than of an Administration that repeatedly loses legal challenges to an executive order and tries to game the system by not appealing—such that it risked more by crediting the Department’s promise to exercise its discretion appropriately in obstruction or bribery cases than decisions about whether to appeal. Or, as some have suggested, this could simply be politics, or ideological preferences, at work. I will be watching to see if this credence becomes a trend, particularly in criminal cases—and, if the government’s promises to the Court are tested in later cases, how it—and the Court—responds.