24 United States The EconomistFebruary 1st 2020
2 white voters is roughly similar. Mr Sanders
has a wide lead among Latinos, which au-
gurs well for his chances in Nevada and the
two biggest Super Tuesday prizes, Califor-
nia and Texas. Each is the top second
choice for the other’s supporters, though
there seem to be more Bernie-or-bust than
Warren-or-bust voters.
That mirrors their relationship with the
Democratic Party and politics more broad-
ly. Ms Warren was an apolitical Republican
before her work on bankruptcy pushed her
leftward. She has since won two elections
as a Democrat and worked closely with a
Democratic administration to create a new
federal agency, the Consumer Finance Pro-
tection Bureau.
Though Mr Sanders signed a pledge af-
firming that he is a Democrat in early 2019,
just one day earlier he filed paperwork to
run for Senate as an independent, which is
how he has successfully contested all 11 of
his federal elections. Though he aligns his
positions with the Democrats’ progressive
history, he calls himself a democratic so-
cialist. That makes many in the party ner-
vous. Although Republicans will call any
Democratic nominee a “socialist”, only
one—the guy who honeymooned in the So-
viet Union, and who has boasted, in de-
fiance of all electoral evidence, that Ameri-
cans “would be delighted to pay more in
taxes”—hangs the label on himself.
Asked how he plans to pass policies in a
divided government, Mr Sanders often
falls back on the rhetoric of revolution and
movement-building, as though holding a
few rallies in Kentucky—a state he is un-
likely to win—will either force Mitch
McConnell to negotiate or cause the scales
to drop from his eyes. This may be partly a
negotiating ploy. Ro Khanna, among his
staunchest congressional supporters, in-
sists that Mr Sanders “would take progress
over the status quo”, but believes “we
shouldn’t compromise with the process
before it’s even begun”.
Yet exciting people with talk of revolu-
tion and then leading them into political
gridlock risks creating a generation of dis-
affected voters. Ms Warren is also spoiling
for a fight, as she rarely fails to mention,
but she has a technocratic appeal that Mr
Sanders lacks.
Her message and style seem to be more
palatable to a broader swathe of Demo-
crats. Barack Obama recently warned that
America “is less revolutionary than it is in-
terested in improvement...the average
American doesn’t think that we have to
completely tear down the system.” Mr
Sanders and his supporters may disagree.
But rousing those least likely to vote while
alienating much of his own party—not to
mention the independents and disaffected
Republicans whom Democrats need to re-
take the White House—is a strategy with
unparalleled downside risk. 7T
he supreme courthas often been a
friendly forum for Donald Trump’s ad-
ministration when its immigration poli-
cies have foundered in the lower courts. In
2018, the justices blessed the third iteration
of Mr Trump’s ban on travel from predomi-
nantly Muslim countries. The next year
they allowed the president to move for-
ward with asylum restrictions and to divert
federal money for a wall on the Mexican
border. On January 27th the Supreme Court
voted to permit a new wealth test for green-
card applicants while litigation on the mat-
ter continues.
The latest decision, like two of the other
three, split the justices 5-4. For 130 years the
government could deny permanent legal
status to immigrants at risk of becoming a
“public charge”. But a rule that originally
barred only a handful of destitute immi-
grants could, under the revision an-
nounced last August, rope out hundreds of
thousands of immigrants. Those who are
deemed likely to need food stamps, Medic-
aid or housing assistance over 12 of the next
36 months—after considering family size,
English proficiency, credit score and in-
come, among other factors—would be inel-
igible for a green card.
Before the Trump administration could
implement the change on October 15th, it
was blocked in a federal district court in
New York. The move has “absolutely no
support in the history of usimmigration
law”, Judge George Daniels wrote, and is“repugnant to the American dream”.
After an appeals court allowed Judge
Daniels’s injunction to stand, the Trump
administration asked the Supreme Court to
step in. The court granted the request with-
out comment. But Justice Neil Gorsuch,
joined by Justice Clarence Thomas, ex-
pressed frustration with the phenomenon
of district judges issuing injunctions that
apply universally across the country.
In his four-page statement, Justice Gor-
such noted that two circuit courts had lift-
ed similar injunctions against the revised
wealth test and that an injunction in Illi-
nois applied only to in-state green-card ap-
plicants. But Judge Daniels’s move, Justice
Gorsuch complained, involved “a single
judge” who “enjoined the government
from applying the new definition to any-
one”, anywhere, without regard to “partici-
pation in this or any other lawsuit”.
These injunctions “share the same ba-
sic flaw”, in Justice Gorsuch’s eyes, in that
they dictate how the government must
treat people “who are not parties to the
case”. Judicial interventions that have an
impact on everyone from coast to coast af-
fected by a government programme are
“patently unworkable” and sow chaos, Mr
Trump’s first Supreme Court appointee ar-
gued. He also characterised them as “a sign
of our impatient times”.
Howard Wasserman, a law professor at
Florida International University, agrees
with Justice Gorsuch’s reasoning but won-
ders why he chose this moment to attack
universal injunctions. Justice Gorsuch
probably would have opposed even a nar-
rower injunction, Mr Wasserman reckons.
Further, a more suitable case raising the
question will be before the court in the
spring. That case involves carve-outs to the
contraception mandate in the Affordable
Care Act, better known as Obamacare.
Mila Sohoni, a professor at the Univer-
sity of San Diego law school, speculates
that Justice Gorsuch’s missive may be de-
signed as a warning to judges “to be more
cautious in issuing such broad injunc-
tions” and an invitation to the Department
of Justice to keep up its “aggressive” efforts
against injunctive overreach.
But contrary to Justice Gorsuch’s claim
that the use of broad injunctions “has pro-
liferated only in very recent years”, Ms So-
honi’s forthcoming article in the Harvard
Law Reviewtraces the practice back to the
19th century. It is not “some late-blooming
efflorescence of post-Warren Court judicial
hubris”, she writes. There is a debate to be
had regarding when universal injunctions
are appropriate, says Amanda Frost, a law
professor at American University, but it is
“almost laughable” to argue that they are
unconstitutional. Ms Frost says adminis-
trative law explicitly allows judges to in-
validate regulations “as to everyone, not
just the plaintiff”. 7NEW YORK
The justices vote to allow a potentially
sweeping new immigration restrictionThe Supreme CourtInjunction
dysfunction