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Saturday, July 28, 2018

Judge Leinenweber loves him some universal injunctions

Judge Leinenweber of the Northern District of Illinois made permanent his injunction in City of Chicago v. Sessions, prohibiting DOJ from enforcing regulations stripping federal law-enforcement funds from sanctuary jurisdictions. The new opinion mostly makes permanent the preliminary injunction entered last year and affirmed on the merits on appeal. The new element, as Ilya Somin explains, is the declaration of invalidity of a rule prohibiting jurisdictions from restricting communications with DHS and ICE, relying on Murphy v. NCAA (the NJ gambling case) for the proposition that federal law cannot restrict state or local lawmaking in this way.

The other issue is the scope of the injunction. The preliminary injunction was universal and accompanied by the most detailed judicial justification for universal injunction, but the question of scope is pending before the en banc Seventh Circuit.* Leinenweber made the permanent injunction universal (he continues to use "nationwide"), but stayed the universal scope pending the Seventh Circuit decision (so, for the moment, the injunction prohibits enforcement of the regs only as to Chicago). He recognized the conflict over universal injunctions, pointing to Justice Thomas' opinion in Trump v. Hawaii, as well as the scholarly work of Samuel Bray against universality and Amanda Frost in defense of it. The novelty of the question and the fact of the Seventh Circuit stay of the scope of the preliminary injunction satisfied the first prong (likelihood of success) of the stay analysis and none of the other prongs outweighed that.

[*] The Seventh Circuit panel affirmed the scope of the injunction, over a strong dissent on the scope question from Judge Manion. The court granted en banc review on universality.

Supporters of universal injunctions, including Judge Leinenweber and Prof. Frost, recognize that they should be rare and the exception rather than the rule. Even accepting (as I do not) that universal injunctions are sometimes proper, they should be limited to cases in which enforcement of a particularized injunction would be difficult--it could be easily circumvented,* individual plaintiffs face barriers to bringing individual cases, a particularized injunction leaves the plaintiff with less-than-complete relief, other mechanisms (class certification, organizational standing) would be ineffective. The paradigm would be Hawaii and the travel ban, which presented some unique problems, in that affected persons were all over the world and the plaintiff states could not identify all affected potential students or scholars.

[*] Think Texas and the DAPA injunction, because DAPA recipients could move to Texas.

But Chicago and sanctuary-city funding does not provide the appropriate case, something even Frost seems to recognize. An injunction particularized to Chicago remedies the constitutional violation as to Chicago (the invalid withdrawal of funds) and leaves Chicago with complete relief (it gets its money). Nothing that DOJ might do as to another city violates Chicago's rights or limits its relief, so there is no need for the injunction to go beyond Chicago.

This case shows why efforts to limit universality to unique cases fall flat. If a universal injunction is appropriate here, it is appropriate in every case challenging the constitutional validity of every federal law; there is no reason not to make all injunctions universal, something Leinenweber acknowledges is improper.

Posted by Howard Wasserman on July 28, 2018 at 11:23 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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