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Berlin on June 23, 2025 |
The headline is of course the chaos created for birthright citizenship and the 14th Amendment by the 6-3 majority decision, written by Amy Coney Barrett. The decision doesn’t pronounce on the (flagrant un)constitutionality of Trump’s attempted nullification of birthright citizenship through executive order, but decides whether, under the “Judiciary Act of 1789, federal
courts have equitable authority to issue universal [national] injunctions.” The Six said no, except under special circumstances (complaints from states, class-action suits). The decision disempowers lower courts as they try to enforce the executive’s compliance with law, and will require the Supreme Court to adjudicate pretty much every national injunction, as far as I can tell. It will be easy enough to block national unjunctions under SCOTUS’s brand-new legal standard (not created to strike down national injunctions against Biden’s student debt relief).
In substance, the Court thus opened “the door for a majority of states to at least temporarily enforce President Trump’s executive order ending birthright citizenship.” A good working definition of constitutional chaos is some states following the 14th Amendment while others don’t. I omit comment on this but do agree with Adam Serwer’s deleted tweet.
The government has 30 days to spell out how it can make Trump’s nullification of birthright citizenship legal. As Leah Litman explains on the aptly titled episode, “SCOTUS Just Blew Up Nationwide Injunctions, “Because lower courts had blocked the order before it ever went into effect, the federal government said, we never actually had the 30 day period to create a set of guidelines for how we were going to implement this. And so that's what they are going to begin doing. And then if it's not blocked before then, it could go into effect July 27th.”
It’s not clear to me what the state-by-state effects of a blocked executive order would be, given the new weakness of court enforcement. Trump and his SCOTUS wing have made the US post-constitutional. Operationally, Trump doesn’t need clarity, but confusion: confusion about the mixture of truth and falsity in my previous sentence is how authoritarian governments demobilize people and weild power.
For universities, the practical effect is that their temporary reprieves from Trump’s massive funding cuts—more or less all based on court injunctions-- are no longer sound. I see three effects.
First, the injunctions will have to be adjudicated case-by-case, as questions about the specific jurisdiction and the status of the plaintiffs have become determinant and will have variable outcomes.
For example, there was this news in May:
The U.S. District Court for the District of Columbia granted a temporary restraining order to block the Trump Administration’s dismantling of the Institute of Museum and Library Services (IMLS). The decision was issued in response to a lawsuit filed by the American Library Association (ALA) and the American Federation of State, County and Municipal Employees (AFSCME), represented by Democracy Forward and Gair Gallo Eberhard LLP.
What happens to this TRO? I’m not a legal scholar, but am not optimistic about its continuation. The American Library Association’s president, Cindy Hohl, had already noted, “Even with a temporary restraining order in place, Congress also must act to ensure our nation's libraries can continue to serve their communities,” which won’t happen this year or next.
Second, Trump’s agencies are now more likely to ignore court injunctions and continue to cancel grants, withhold funds, and carry on with next year’s cuts. The injunctions’ status has been damaged. There’s been a major power shift from the judicial to the executive branch. As the SCOTUS podcast Strict Scrutiny noted, "the court here is telling the administration that the restraints are now off. [It is] literally unfettered. Anything you were thinking about doing, but were worried that the lower courts would stop, there's [now] nothing to stop you."
The same goes for a swing in the psychological advantage. A third outcome is a big chilling effect on the federal judiciary: how many judges will say, okay, I have this state-led complaint so it’s still valid and I’m reissuing it even though that the Trump administration will appeal it again, on newly hallowed grounds. Sam Stein does a nice job of describing this regressive spiral with Litman. with The chill comes from the dark force of the ever-expanding unitary executive.
In short, the Trump v. Casa decision has lowered the odds of federal funding claw-backs.
The decline was already continuing: while NIH is to restart grant reviews, for example, STAT has found that the agency’s “extramural funding deficit has grown over the past two months — from $2.3 billion at the end of April to at least $4.7 billion by mid-June. That’s a 29% drop from average funding levels during the same months of the previous nine years.” Now, Plan A is recertified as 30-50% losses in federal research revenues.
Here’s a visualization of research funding for most of the campuses of the University of California. Ignore the green band completely right now, and look at the others.
There are two UC systems in research, UC Big and UC Small. This was not the plan, but is the direct result of state underfunding over several decades, which has blocked the infrastructural expansion of the newer campuses (for background, see “Liner Note 26. The University of California’s Fiscal Crisis”).
The largest (blue) band is federal research funding. Leaving aside the Trumpian destruction of academic freedom and peer review, the prime fact here is its very large share of total research expenditures.
Note the grey band, which is the amount each campus spends of its own internal funds to support research. It is generally the second-largest amount. The national average is that extramural research loses 20-25 cents on the dollar, which universities make up out of their own pockets. UCLA is closer to losing one third on every dollar of extramural research funding.
Note, too, how small the orange band is, which is state and local funding for research. The states have let the federal government support (mainly STEM) research while they pay a share of instructional funding and other costs.
Now, picture the blue band being cut by 1/3rd. Picture it being cut in half. How would campuses maintain research effort measured by expenditures?
They wouldn’t. Every campus’s research would go down. The big campuses will restart the arguments some made in the 1990s that a small campus or two might be closed, or, more likely, lose most doctoral programs. The smalls could cease being research campuses in the full sense.
Campuses would try to protect research with institutional funds. These can’t be expanded without further cuts to the operations that diverting institutional funds to research have already eclipsed – facilities maintenance, upgraded instruction, graduate student employment, tenure-track faculty hiring, etc.
What can happen, however, is that the small share going to support arts and humanities research be diverted to supporting extramural STEM research, taking arts and humanities research to zero. By “humanities research” I include the staff that help raise the external funds for faculty projects—my sense is that little UC core funding now goes directly to intramural faculty research in the arts and humanities. These staff would be laid off or shifted to STEM disciplines, and faculty would be (even more) self-funded than before.
The only funding source that could replace lost federal funds are state funds. But state legislatures have never been asked to do this, don’t want to do it, and have many competing urgent needs in their populations. Making matters worse, senior managers like UCOP’s finance and government relations people have spent the last 25 years never asking for more state funds or connecting funding to UC’s research mission.
At my conferences, the quality of intellectual work was very high and the level of mobilization was very low. The crisis is paralyzing academia, not galvanizing the rank and file.
I don’t need to mention that, to block the fatal Doofus Warrior and his high-speed OODA Loop, academics desperately need emergency mobilization.