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Thursday, January 25, 2018

An old solution that misses the problem

On the Harvard Law Review Blog, Fifth Circuit Judge Gregg Costa proposes that cases seeking "nationwide" injunctions should be heard by three-judge district courts with direct and mandatory review to SCOTUS. Including multiple judges gives the decision greater gravitas, speeds ultimate resolution of the issue, and eliminates forum shopping.

But like most of the arguments, Costa's solution conflates geographic scope with party scope. The problem is not geographic limitations on the injunction or on the court issuing the injunction (in geographic terms, all injunctions are nationwide in protecting the protected person everywhere she is or goes). The problem is these injunctions protecting beyond the named plaintiffs by prohibiting enforcement of the challenged law to all persons--what I have been calling universality. That is not an issue about the number of judges deciding the case or the court's geographic reach. SCOTUS cannot issue an injunction prohibiting (on pain of contempt) enforcement of the challenged law against anyone beyond the named plaintiffs. And a three-judge court has no more power to do that than a single-judge district court.

Judge's Costa's solution does guarantee binding precedent and more quickly. SCOTUS's decision binds all courts to issue similar injunction to new lawsuits by new plaintiffs. And it prompts (although does not require) the federal government to stop enforcing the law. But that is as a matter of precedent,  not injunction or judgment. It also suggests that we should return to the pre-1976 regime of three-judge courts for all challenges to all federal laws.

We could recast Judge Costa's argument to require three-judge courts for those rare cases in which a universal injunction is warranted--truly indivisible rights and relief or 23(b)(2) injunctive class actions. That may offer a more direct solution to the real problem of the party scope of the injunctions--when the injunction must be broad, the case can be fast-tracked in this way. But it disconnects from the concern for the "importance" of the federal issues. For example, the sanctuary-city-funding regulations (which are the subject of two universla injunctions) are important, but the right and relief is not indivisible.

Posted by Howard Wasserman on January 25, 2018 at 10:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


The issue Wasserman , is that grave prima facie unconstitutionality is typically not very well or clearly prescribed by law . So , it is hard to understand , why such gravity and violation , can't be subjected to further litigation ( beyond limit geographical scope ) whatsoever the litigants or state or district at issue . The best way to illustrate it , would be typically , by principles of criminal international law . Article 33 to the Rome statute ( International criminal court in Rome ) dictates as follows :

Superior orders and prescription of law

1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

(a) The person was under a legal obligation to obey orders of the Government or the superior in question;

(b) The person did not know that the order was unlawful; and

(c) The order was not manifestly unlawful.

2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

End of quotation :

So , clause 2 , dictates clearly , orders to commit genocide or crimes against humanity , are whatsoever , manifestly unlawful . That is to say , the a soldier or military commander , can't claim that he has only followed strict order , for there isn't , and can't be , such order ( legally , differentiated from war crime ) . On the face of it , can't be carried out , whatsoever .

If a judge , believes genuinely , that the violation , does reach such level of unconstitutionality , no matter would be the identity of litigants , or geographical scope . No matter even if it is contemporary injunction . There is no balance , no further challenge to it , is possible , prima facie possible . Even if a party is waiving rights , wouldn't matter . A police officer , can't jail a person , or dictates his sentence , due to the fact , that such suspect , has waived his right for due process . How would it change ?? Constitutionally ,it is an absurd . Let alone , while it is descending from the top of the chain ( executive order of president for example ) .

And paradoxically then ,you are right then , that 3 judges , wouldn't change much .


Posted by: El roam | Jan 25, 2018 1:18:26 PM

Just correction :

International criminal court in Hague not Rome of course


Posted by: El roam | Jan 25, 2018 1:20:36 PM

The question is how we understand what the constitutional violation is in the context of one lawsuit--the law itself or the threat of enforcement of the law against some identifiable person. The long-standing view is that it is the latter, an understanding that is consistent with standing rules. If the constitutional problem is the actual or threatened enforcement of the law against a person, then the problem is remedied by an injunction prohibiting enforcement against the plaintiff.

There is no need to extend the injunction to anyone else--the violation as to A is remedied by the injunction as to A. The decision enjoining the law as to A will serve as precedent in an attempt by B to stop enforcement. But precedent requires that additional step of a new lawsuit or effort to extend the injunction.

The model you describe could be a way of enforcing the Constitution. But it is not the system the federal courts have set-up, where courts decide constitutional questions in the context of resolving a concrete dispute between identified parties.

Posted by: Howard Wasserman | Jan 25, 2018 4:42:07 PM

Wasserman ,

First , what if one of the parties finally , is filing for such universal injunction? what do you mean by that ?? The judge should decline it ?? If he doesn't grant such universal injunction , that is to say according to you or to it , that a green light is given , for further litigation in other districts or whatever . So , green light according to you , for fundamental unbearable unconstitutional flaw ??

Precedent has nothing to do here , for it is prima facie and preliminary wrong . If Trump is issuing a fundamentally wrong executive order , then , what is wrong there , should be sufficient ! extended to B , wouldn't change nothing . B is irrelevant , the flaw as it is , is sufficient , as I have demonstrated it to you , in Santa Clara V . Trump ( sanctuary cities ) !!

Suppose that an offense or prohibition is prescribed by order or law , yet , vague , very vague it is ( phrased so , drafted so ) . Vague that is to say , fundamentally unconstitutional !! That is because , a person or entity whatsoever , doesn't know how and what to do exactly , in order to avoid the prohibition . He may be punished so , for committing something , he couldn't avoid with due diligence even . How would it matter if implied upon B , or A ?? It is to be excluded and rejected " in limine " !!

The judge , not only shouldn't do it , he must do it so . Universally so . He can't otherwise !! It is more than gross negligence and unprofessional conduct .


Posted by: El roam | Jan 25, 2018 5:48:07 PM

Wasserman , just read the following case or discussion rather ( very short ) has to do with vague prohibition or restriction , and simply imagine , an extreme case of such , where manifestly wrong , absolutely unacceptable , and realize , that a judge can't act otherwise , here :



Posted by: El roam | Jan 25, 2018 6:09:20 PM

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