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Sunday, January 29, 2017

Random thoughts on a Sunday

1) Judge Donnelly's temporary stay of removal of those at U.S. ports of entry who are legally authorized to enter the United States raises, from the other political side, the issue of nationwide injunctions against enforcement of U.S.policy. Darweesh purported to be suing on behalf of others similarly situated, although Judge Donnelly did not perform any part of the FRCP 23 analysis. But at the stage of a temporary emergency stay or temporary restraining order, this is less problematic than on a preliminary or permanent injunction entered after full briefing by the parties.

But here I want to distinguish between "nationwide" and "universal" injunctions (thanks to Tobias Wolfe of Penn for the distinction); the latter term better captures the remedial problems. An injunction is, and should be, "nationwide" with respect to the named plaintiffs--the United States should be enforced against them anywhere in the country. And the "parties" in a class action properly covers everyone in the class. A universal injunction, by contrast, bars action by the defendant with respect to anyone, including non-parties. This is remedially problematic. The DACA injunction was universal--although only Texas and about 25 other states were parties, the injunction barred the United States from enforcing DACA in, and with respect to, non-party states, even those who would not oppose the benefits granted to undocumented persons within its borders.

Now it remains to be seen whether this case is properly brought as a class action (reports are there are about 100-200 people with the status of the plaintiffs in Darweesh. I expect the class question will await fuller litigation, assuming the relevant agencies do not release the people affected. The point is that the "nationwide" label thrown around in the press is too imprecise.

And, for what its worth, TRO's are issuing in other courts (including the District of the District of Columbia, Western District of Washington, and District of Massachusetts), suggesting that Judge Donnelly's temporary stay is not doing as much nationwide work as it might.

2) Josh Blackman has his usual thorough analysis of the procedural aspects. I do not think I agree that Judge Donnelly's order is ultra vires for not having performed the FRCP 23 analysis. In that short time, I am not sure the court could do more than acknowledge the class allegations in the motion and save them for fuller briefing. But to not allow the fullest TRO* would love potential class members subject to removal.

[*] Although not styled a TRO, this seem to me the functional equivalent--staying enforcement of the law for a finite number of days pending fuller briefing.

3) There are some interesting enforcement issues, as reports come that officials at airports are refusing to abide by the orders. Judge Donnelly included a paragraph order the Marshals to take all steps necessary to notify agents on the ground about the order. But that takes time.

4) As I wrote last weekend, I have no idea when public protest will be permitted and when law enforcement will crack down. The New York Times described the genesis and evolution of Saturday's protests at Kennedy Airport (which, famously, is a nonpublic forum), including crowds making sidewalks outside the terminal unpassable. And all without permits, pre-event negotiations, and explicit or implicit understandings. And yet there were no arrests and no efforts to disperse or remove the protesters. Same in the parking garages. At one point, Port Authority police blocked protesters from boarding the train linking the subway to the terminals, until Gov. Cuomo ordered them to stand down, which they did  only after a 15-minute delay.

5) There is a teaching moment here, apart from the substantive and procedural details of the controversy and the "this is why we need lawyers" narrative (since most of our students are never going to be on either side of such controversies). Reports are that this order was not vetted by the lawyers and policy experts at various agencies, including in the Office of Legal Counsel, but was thrown together by non-lawyer policy makers and some lawyers guiding them within the White House. So the teaching point is that lawyering matters and lawyering means care and precision and avoiding ambiguity and the chaos that ambiguity brings. And that is true not only as to major government orders that affect the entire world, but wills that affect an elderly widow.

Posted by Howard Wasserman on January 29, 2017 at 12:31 PM in Constitutional thoughts, Howard Wasserman, Law and Politics, Teaching Law | Permalink

Comments

Sadly, this is far from a new or unique situation. Two words suffice: Iran-Contra (that's the maximum that I'm allowed to say).

Posted by: C.E. Petit | Jan 29, 2017 12:47:22 PM

Re #5:

I have not yet seen a plausible case that Donnelly's order is anything but a shameless refusal to apply the law, but instead is based purely on the judge's political beliefs. What would additional lawyering get you if the federal judiciary thinks its job is to implement its political beliefs in defiance of the law Congress adopted and that the President applied?

I'd love to see an actual legal case for the order, but it should be something better than the non-discrimination-in-visa-issuance clause (which is completely irrelevant; Donnelly's order has nothing to do with visa issuance but rather admittance); should address 8 U.S.C. § 1182(f); and should address the substance of Darweesh's causes of action.

I've seen plenty of off-the-wall explanations of why § 1182(f) is unconstitutional. If we're down to implausible theories like that, then it's pretty clear that Donnelley's order is meritless.

Posted by: Dan | Jan 29, 2017 7:42:35 PM

This is probably a dumb question but is all this nationwide/universal stuff only an issue because the relief being sought here is an injunction? If the plaintiffs seek and win a declaration that enforcing the order is unconstitutional, then won't that effectively bar the executive from enforcing the order nationwide? Or is the executive free to disregard the declaratory judgment when proceeding against any party other than the plaintiffs who won the declaratory order?

Posted by: Rusty on Remedies | Jan 31, 2017 6:40:31 PM

Rusty: It depends on who the plaintff(s) are. Ordinarily, a judgment (both injunctive and declaratory) only protects the named parties and prohibits enforcement as to the named parties. If the plaintiff is a class (as at least some of the TROs purported to be), then the scope is broader. Otherwise, only the named plaintiffs are protected.

That is why I prefer "universal" to "nationwide" to describe what is going on. An injunction should be "nationwide" as to the named plaintiffs--the government cannot enforce the EO as to them anywhere in the country. Universal injunctions--the defendant is enjoined from enforcing against *anyone* in the universe--are less consistent or justifiable under ordinary remedial principles.

The original injunction would bar enforcement against others only indirectly--because it provides authority for a different court or because government chooses to follow as to everyone else, knowing that other enforcement efforts will be enjoined.

Posted by: Howard Wasserman | Feb 2, 2017 8:23:35 AM

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