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Wednesday, April 26, 2017

Problems of scope and nomenclature in nationwide injunctions

Judge Orrick in the Northern District of California preliminarily enjoined President Trump's Executive Order stripping "sanctuary" cities of federal funds. As per usual in these cases nowadays, Judge Orrick made the injunction "nationwide," rejecting government arguments that it be" issued only with regards to the plaintiffs." The court supported that conclusion by citing Califano v. Yamasaki for the proposition that the "scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff." The problem is that Orrick excludes the important next word in the quoted sentence--"class." Califano was a 23(b)(2) injunctive class action. Thus an injunction that prohibited enforcement of the challenged law as to multiple people was appropriate--because everyone in the class was a plaintiff. And it makes sense that the injunction should follow the plaintiff nationwide--if the government cannot enforce a law against a plaintiff (whether an individual or a municipality), it cannot enforce it regardless of where in the country the plaintiff goes.

This illustrates that the proper term for what the court did here is "universal injunction"--an injunction that covers the defendant's conduct (here, prohibiting enforcement of the EO) with respect to everyone, party or non-party. A "nationwide injunction," on the other hand, is an injunction that protects the appropriately protected persons (the plaintiffs) nationwide. The former, which is what courts have been issuing, is inconsistent with general principles of equity and the law of judgments, which limit the binding effect of a judgment to the parties. And Califano does not establish the contrary, because that was a class action, so the parties who could be protected by the injunction (consistent with the law of judgments) included everyone in the class. In other words, Califano involved a nationwide injunction for a nationwide class. It did not involve a universal injunction protecting everyone in the universe, even non-parties.

And this does not seem a situation in which the injunction must protect non-parties to be given its full scope. To protect Santa Clara and San Francisco from enforcement of this unconstitutional order, it is not necessary that the court also protect other sanctuary cities from enforcement. Those cities can bring (and some have brought) constitutional challenges prohibiting enforcement as to them, now with the benefit of Santa Clara v. Trump as persuasive precedent. Other than a desire for simplicity, there is no reason that the first decision on a legal issue should also be the last on the way to SCOTUS. Rather, it runs contrary to the assumption that multiple lower courts and multiple lower-court judges are going to take passes at legal issue before those issues reach SCOTUS.

The less said about the White House statements, which drips not only with contempt for the judiciary (a well-established theme), but a misunderstanding of how the federal judiciary and constitutional litigation operate (one listserv member wondered whether a competent lawyer came anywhere near these press releases. But one notable point: The statement uses some form of the phrase "single unelected district judge" three times. I know the White House is engaging in demagoguery and not series legal argument there.

But let's take it at its word--the problem is the injunction being issued by the single district judge. What would the WH like to do about that? Return to the old system of 3-judge district courts for all actions seeking to enjoin enforcement of federal laws? Amend Article III to give SCOTUS original jurisdiction of actions challenging the constitutionality of federal law? Always have the government win because everything the government does is constitutionally valid? (actually, that is the preferred option). Always have the government win in the lower courts? This may be what disturbs me the most about the administration's statements towards the judiciary--they reflect not substantive disagreement, but disregard (or lack of understanding) of the judicial processes that produce constitutional decisionmaking.

Posted by Howard Wasserman on April 26, 2017 at 12:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


If the injunction is universal, yes. And that is the problem. How this should work is that a new city would initiate new litigation, using the SF judgment as precedent. Or, having lost the case against San Francisco, the US gives up and does not try to enforce the EO as to New York, at least until the SF case works itself out.

The standing question implicates what has been called the "one good plaintiff" rule. In an action for injunctive relief, so long as one plaintiff satisfies Article III, courts do not bother evaluating standing of other plaintiffs seeking the same relief. Since SF had standing, others seeking the same relief (non-enforcement of the EO) have not been required to have standing.

Posted by: Howard Wasserman | Apr 28, 2017 7:16:48 AM

Is the issue not one of standing? San Francisco could not sue to have new York's funding restored if San Francisco itself was not affected so it is seems odd that they can obtain an order requiring Trump to pay New York.

What if the injunction was violated but not against the plaintiff? Could anyone ask for relief from the issuing court in that case?

Posted by: Jr | Apr 28, 2017 4:40:19 AM

I've noticed recently that in all the discussions I've seen about Trump's EO's and judicial responses, there is much pearl-clutching among the legal profession at any criticism of judges. Here too. How dare Trump criticize a judge!

If we can't criticize judges, robustly, we're conquered. They are not gods, damn it. Who the hell do you people think you are?

This tendency for self-promotion of the legal profession goes all the way back to Marbury v. Madison where SCOTUS appointed itself the constitutional arbiter. Maybe that was when we should have knocked them out of the box and said no you're not.

By the way I found the analysis above legally interesting and I agree with much of it. But I reject the automatic worship of judges. They have certain powers I acknowledge. That must not put them above criticism.

Posted by: David Quinn | Apr 27, 2017 9:27:55 AM

Joe: I am still trying to figure what motivated me to ask that question here. (And also what motivated Prof. Wasserman to say he disagreed with it.)

But to your point about "It is a duty from which they may not shrink to decide cases properly brought before them," I think if you consider that line in the context of the unbelievable level of Republican outrage regarding the Court's tremendous reaches to try to insert itself into the political question of slavery (for example, overlooking the fact that Dred Scot already lost in state court before trying over in federal court and so should have been subject to res judicata), Lincoln's line here (with an emphasis on "PROPERLY brought before it")takes on a somewhat ironic flavor. And similarly in the Trump cases, where the Ninth Circuit is making a whole new body of law in standing questions, ripeness issues, and others.

Anyway, I will now ask how many people here agree with Lincoln's insinuation that while "it is no fault of [the courts] if others seek to turn their decisions to political purposes," it is a fault in the others who attempt to have major political decisions be decided by courts.

Posted by: biff | Apr 26, 2017 11:09:46 PM

How is anything I have said showing contempt for the judiciary? I am pointing out an error by the court--in this case, a procedural error in terms of the scope of the injunction it issued. But pointing out errors by the judiciary is not remotely the same as showing contempt.

Posted by: Howard Wasserman | Apr 26, 2017 7:07:44 PM

I'm not sure how "vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made" applies in this situation. Proof-texting only takes us so far anyhow.

The full context can be found here:


To extent we should be guided by him, perhaps this from the same paragraph is suitable: "It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes."

Posted by: Joe | Apr 26, 2017 6:58:36 PM

"The less said about the White House statements, which drips not only with contempt for the judiciary"

The whole thrust of your post is that we should have contempt for the judiciary. You are saying that single judges try to impose their view on every part of the country, without legal justification. Why shouldn't we have contempt for a judiciary which tolerates and encourages this kind of thing?

Posted by: Eric Rasmusen | Apr 26, 2017 5:43:38 PM

He wasn't only talking about departmentalism, but also on limiting the scope of the opinion to the holding of the case between the two parties involved. Departmentalism is the idea that the judiciary can have it's opinion on the constitutionality and Congress/the President can have another. If any of the three think it is unconstitutional then the actions must stop.

But Lincoln was also referring to limiting the facts of the case to the specific holding of the court, the rest of the case is mere dicta which isn't binding even on lower federal courts. And that the case only bound the specific parties involved, any other person could bring the exact same issue, and while the lower courts may be bound to vote that way, the Supreme Court could reverse itself.

So I would say Lincoln's statement actually supports what you were writing about in this blog post.

Posted by: Devin Watkins | Apr 26, 2017 3:46:49 PM

Huh. When I had my law professor orientation, no one told me I was not permitted to disagree with Abraham Lincoln.

In any event, I should elaborate that, as you are using that statement--as an argument against judicial review--I disagree with it. The district court said the law is unenforceable (at least as limited to Santa Clara and San Francisco), so that law is unenforceable, at least until reversed by a higher court. That is the context in which we are now speaking.

But Lincoln was talking about departmentalism--whether the executive could act contrary to the order as to other people. And it should be obvious from this post, as well as what I have been writing here for the past three years.

Posted by: Howard Wasserman | Apr 26, 2017 3:08:35 PM

Well then let's leave the White House out of this. I'm more interested in what you, a law professor, thinks about that. And I thank you for your honest and straight forward reply.

I do have to admit, though, that I am surprised a law professor would so openly disagree with that statement made by Abraham Lincoln in his first inaugural address.

Posted by: biff | Apr 26, 2017 2:58:35 PM

I disagree with that statement.

What's more, Donald Trump, Jeff Sessions, congressional Republicans, et al., disagreed with that statement when the "vital questions affecting the whole people" were the individual mandate in ACA, the constitutionality of ACA expenditures, Obama's DACA policy, Obama's EO regarding wages, I could go on.

In fact, this WH statement disagrees with that statement as to this vital question, since it expressly states that the Supreme Court would have the last word on the constitutionality of the EO.

Posted by: Howard Wasserman | Apr 26, 2017 1:38:23 PM

Perhaps the White House is disagreeing with you about your understanding of the propriety of these judicial processes producing constitutional decisionmaking.

Do you agree or disagree with the following statement: if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal?

Posted by: biff | Apr 26, 2017 12:57:17 PM

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