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Thursday, May 25, 2017

Scope of injunction in the 4th Circuit travel ban decision

The Fourth Circuit divided 10-3 in affirming the district court and enjoining the second travel ban. The court agreed to keep the injunction nationwide, but reversed the part of the injunction that ran against the President personally (although the injunction stands as to other federal officials involved in its enforcement). I will leave substantive analysis to others, but check out here, here, here, and here. Given my interests, I want to address two points about the scope of the injunction.

1) The court affirmed the nationwide scope of the injunction and actually gave reasons: Plaintiffs are dispersed throughout the country; congressional desire for uniform immigration law; and an interesting Establishment Clause hook--because the EO violates the Establishment Clause, its enforcement as to anyone sends the identical  message that plaintiffs are outsiders and unwelcome in the community.

The first concern is satisfied by a true nationwide injunction, which is to say an ordinary injunction--protect named plaintiffs everywhere they are. It does not justify this injunction, which is universal--protecting everyone everywhere. The second argument proves too much. Congress wants all federal law to be uniform; that is the point of having federal law in some areas. There is nothing special about immigration law in that respect. That the law might go through periods of disuniformity while courts figure out the meaning and validity of some law is inherent in a tiered federal judiciary and unavoidable, given that SCOTUS does not have original jurisdiction in all constitutional challenges to federal law, meaning any challenge must work its way through multiple (possibly disuniform) courts before SCOTUS can offer a final, uniform conclusion. It does not justify a regional court acting as SCOTUS and having the nationally controlling (even if temporary) word on an issue.

The third argument is interesting and would seem to make the Establishment Clause special for injunction purposes. But that Clause also is special for standing purposes, so it offers an interesting way to tie the front-end standing concerns with back-end remedial concerns.

 2) If the President cannot be enjoined in an Ex Parte Young action such as this one, it really means he is immune from suit, should not be named as a defendant at all, and should have been dismissed from the action at the outset. But he wasn't and courts entertain these lawsuits with the President as a named defendant all the time.

The Fourth Circuit relied on Franklin v. Massachusetts, including Justice Scalia's concurrence. Scalia argued that it was enough to enjoin the Secretary to stop unlawful executive action, just as we enjoin the executive to stop unlawful legislative action. But the reason is that legislators enjoy absolute Speech-or-Debate immunity from all suits for all remedies. In fact, we have EPY at all because of sovereign immunity-- the sovereign (the United States) cannot be sued, so we sue the executive acting on behalf of the sovereign. The President purportedly is not immune, at least not from an injunction, so there should be no reason to look elsewhere. Or, if he is immune, say so and proceed accordingly.

The Fourth Circuit also cites Franklin for the proposition that this does not leave the President free to act unconstitutionally. The secretaries through whom he acts are enjoined. And "[e]ven though the President is not directly bound by the injunction, we assume it is substantially likely that the President . . . would abide by an authoritative interpretation" of the EO.

Why is that so in a departmentalist world? The key to functional departmentalism is the difference between an injunction/judgment and precedent--the President is bound by the former, not by the latter. But if the President cannot be enjoined, there is no way to compel him (beyond persuasion) to the judicial interpretation. I suppose the answer is that the President cannot enforce the EO himself, but only through his secretaries, aides, and federal employees--all of whom are enjoined. Still, it adds an unnecessary step that is inconsistent with EPY, unless the President enjoys an as-yet unrecognized immunity.

Posted by Howard Wasserman on May 25, 2017 at 05:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

Any idea why Judges Wilkinson and Duncan did not participate in the case? Not that they would have changed the outcome, but I'm curious.

Posted by: Brian Clarke | May 31, 2017 1:45:28 PM

I answered my own Q re Judge Wilkinson, his daughter is married to acting SG Wall.

Posted by: Brian Clarke | May 31, 2017 1:51:24 PM

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