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Sunday, October 15, 2017

An overbroad defense of universal injunctions

Judge Leinenweber of the Northern District of Illinois denied a stay pending appeal of a universal (he called it nationwide) preliminary injunction barring enforcement of certain funding conditions against sanctuary cities. This is the first extended defense of universal injunctions (more than in the original order granting the injunction).  (H/T: Josh Blackman)

The gist of Judge Leinenweber's defense is that the attorney general's authority does not vary by jurisdiction. And similar universal jurisdictions have been upheld, in which relief inured to non-parties as well as parties. The court also finds support from the per curiam in Trump v. IRAP, where the Court allowed the injunction to stand as to those "similarly situated" to the plaintiffs, which matches the injunction here applying to cities and states similarly situated to Chicago. Most tellingly, the court rejected the argument that similarly situated plaintiffs can file their own lawsuits and use the first decision as precedent because "judicial economy counsels against requiring all these jurisdictions (and potentially others) to file their own lawsuits to decide the same legal question." The court recognized reasons to be "cautious" before entering such injunctions and that they should not be the "default," citing the recent work of Bray, October guest Michael Morley, and UCLA's Michigan's Maureen Carroll. He pointed to concerns for forum shopping, conflicting injunctions, and interference with law development within a circuit, then explained (in a sentence or two) why those "not insignificant concerns" do not overcome the benefits of a universal injunction in this case.

The problem remains that the argument prove too much. As Sam Bray argues, it logically requires (or at least permits and encourages) a district court to issue a universal injunction in every constitutional challenge to federal law. Because the proposed funding conditions challenged here do not differ from any federal law.  The authority of federal officials to enforce every federal law does not vary by jurisdiction. Judicial economy always favors one lawsuit over many lawsuits. There would be a flood of similar lawsuits by everyone affected by every federal law.* Federal uniformity and the unfairness of disparate application of federal are present with respect to every federal law. Despite the court's rhetorical attempt to limit such injunctions to "extraordinary" cases, every case is extraordinary as he defines it; the reasoning applies to federal immigration laws, federal regulations of immigration attorneys, and federal law regulating any conduct.

[*] The solution is supposed to be FRCP 23(b)(2) class actions. But the growth of universal injunctions makes that rule superfluous.

Leinenweber closes with a paean to the rule of law and the role of the courts in ensuring the rule of law is enforced, which is undermined (in reality or in perception) if the attorney general can enforce "likely invalid" laws against other persons even while under an injunction as to some. Several responses. That is true of every federal law, making such injunctions the norm. The rule of law also includes limitations on the scope of a district court's lawmaking and remedial authority as compared with a court of appeals or SCOTUS; it therefore is as undermined by one district judge barring enforcement of federal law as to everyone in the world in all circumstances everywhere in the world. And without saying so, it also rests on a model of pure judicial supremacy--the Article III judge has spoken and the attorney general's authority to disagree, outside of that litigation, ceases to exist.

Posted by Howard Wasserman on October 15, 2017 at 03:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Indeed it does.

Posted by: Howard Wasserman | Oct 17, 2017 6:28:08 AM

Probably impossible to take the discussion further in blog posts, but I note that evidently departmentalism lives!

Posted by: Paul Gowder | Oct 16, 2017 9:08:40 PM

Yeah, I just add the change in personnel to make it a little more defensible or plausible as a pragmatic matter; I get that formally it adds nothing (unless one has a thoroughgoingly predictive theory of precedent, in which case one may not even have to be a departmentalist to defend the government in my hypothetical). And I should add, as a pragmatic matter, that if the government wants to take a shot at overruling some precedent of this kind, it more or less has to act in this way, though I suppose it can evade the charge of enforcing an "invalidated" statute by enacting another, materially similar statute.

Posted by: Asher Steinberg | Oct 16, 2017 8:43:43 PM

I am ok with the named defendants applying the statute to persons besides the plaintiffs, even without the intermediate step of a change in personnel, assuming the defendants continue to believe the statute is constitutionally valid. I have written about this in a series of posts over the past 3 years, as well as in my articles on the marriage-equality litigation.

Now, the defendants know they are going to lose with this move and that they are going to be on the hook for attorney's fees, so the government officials may think twice about whether they should do it. But *can* they, consistent with their oath? Yes.

Posted by: Howard Wasserman | Oct 16, 2017 8:32:59 PM

So, when the Supreme Court "invalidates a statute" (whatever that means) in a non-class, injunctive action, and it's perfectly possible to apply that statute to everyone but the plaintiffs, do you think that really all you have is an injunction enjoining the defendants from applying that statute to the plaintiffs, on the ground that the statute's unconstitutional? And say the fifth and deciding vote in that decision retires the week the opinion's announced and is replaced by someone who very conceivably could have a different view; while the lower courts will remain bound by the Court's precedent until it's overruled, would I be correct in guessing that you're okay with the named defendants applying the "invalidated" statute to persons besides the plaintiffs in the case the Court decided so as to see whether they can get a different outcome from a reconstituted Court?

Posted by: Asher Steinberg | Oct 16, 2017 8:27:47 PM

This goes to remedies stuff. There are times that a remedy is indivisible, so everyone will enjoy the benefits of the injunction. In Jer's hypo, the injunction ("stop having Catholicism as the official religion") would benefit everyone who would be subjected to that. Same with an injunction ordering prisons to clean the raw sewage out of the prison (since they cannot clean only the plaintiff's sewage) or to build new prisons to ease overcrowding. This is also why we have 23(b)(2) classes--to enable broader injunctions.

Posted by: Howard Wasserman | Oct 16, 2017 5:57:10 PM

To add, perhaps, some more teeth to Paul's example: suppose the prison policy that is being litigated is a policy that states: "Roman Catholicism is hereby established as the official religion of the Bureau of Prisons." How is a court supposed to craft an injunction against that policy that will vindicate the rights of only the individual plaintiff prisoner who challenges it?

Posted by: Jer Welter | Oct 16, 2017 4:37:01 PM

That's even more interesting---I didn't realize your position was "just as to named plaintiff" rather than "just as to the geographic territory of the court."

This seems like a bad idea based on the balance of resources available to parties in civil rights cases in particular, where plaintiffs are often profoundly unequipped to show up in court and it's a miracle when one person manages to get relief. Imagine this rule applied to prison litigation, for example. Suppose a prison has some blatantly unconstitutional policy, and finally someone manages to get past all the crazy hurdles of the PLRA and the difficulty in getting counsel and all the rest, and gets an injunction. Would your position enable the prison to continue applying this policy against every other prisoner in the place if only the government makes the tactical decision not to appeal the injunction against the one prisoner?

Posted by: Paul Gowder | Oct 16, 2017 3:52:58 PM

Jer: It oversteps when it enjoins DOJ from applying it to anyone other than the named plaintiffs. The injunction should apply against the named plaintiffs everywhere in the world. This is why I prefer "universal" injunction rather than "nationwide" injunction.

Paul: I do not distinguish it and I do not regard what the SSA was doing as "scandalous." It creates an unwieldy situation and a lot of lifting for potential plaintiffs. And there may be some doctrines or rules to limit the practice. But the lack of judicial economy is baked into judicial decisionmaking.

Posted by: Howard Wasserman | Oct 16, 2017 2:26:27 PM

I've been following the ongoing discussion re: national injunctions and your posts re: judicial departmentalism with interest over the past couple years.

I must say I do not understand what role a district court's territorial jurisdiction plays in the discussion. I thought the problem (if it is one) was that the injunctions are giving relief to parties not before the court. Fine, but that has nothing to do with geography. The defendant (the United States, or one of its agencies or officers) is a party before the court, the defendant acts on a nationwide basis, and the court has the power to enjoin the defendant's conduct both inside and outside the territorial jurisdiction of the court. See, e.g., Leman v. Krentler-Arnold Hinge Last Co., 248 U.S. 448, 451 (1932) (holding that permanent injunction issued by federal district court "was binding upon the respondent, not simply within the District of Massachusetts, but throughout the United States").

Your response, I take it, is: yes, but the court can only control the defendant's conduct vis-à-vis the particular plaintiffs who are before the court, not the population at large. You might be right and you might be wrong about that as a normative matter (the argument makes sense and I appreciate your commitment to it regardless of whose ox is getting gored, but it doesn't seem to be how courts actually act as a descriptive matter). But it seems to me the problem isn't that the injunctions are "national," it's that they control the conduct of the defendant vis-à-vis non-parties.

Put another way, are you saying that it would be appropriate for the judge in N.D. Ill. to enjoin DOJ from applying its proposed Byrne grant conditions on any and all municipalities in the Northern District of Illinois regardless of whether the municipalities are parties, but that the judge crosses the line when he enjoins conduct regarding non-party municipalities outside of the N.D. Ill.?

Posted by: Jer Welter | Oct 16, 2017 11:41:55 AM

Not sure I agree here. Why isn't the remedy to judicial overreach in universal injunctions not "so you should allow the law to fragment by only handing down jurisdiction-based injunctions" but "swift relief in the court of appeals?"

Put differently, how do you distinguish the resistance to universal injunctions from the (scandalous) policy of "nonaquiescence" carried out by agencies like the SSA in the 80's, where they'd just refuse to obey court of appeals rulings out of their jurisdiction? I mean, yes, courts of appeals are different from district courts, but both purport to state national principles of law in a sub-national jurisdiction.

Posted by: Paul Gowder | Oct 16, 2017 9:10:12 AM

Quick correction: Maureen is at Michigan.

Posted by: Adam Zimmerman | Oct 15, 2017 3:46:32 PM

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