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Tuesday, November 21, 2017

Facial unconstitutionality does not support universal injunctions

Judge Orrick of the Northern District of California on Monday permanently enjoined (order embedded in story) enforcement of the administration's sanctuary-cities order. As with the April preliminary injunction, Judge Orrick made the injunction nationwide (really, universal). I criticized his reasoning for the universal preliminary injunction and the reasoning in this is not much better. The order again quotes Califano v. Yamasaki, ignoring that the order in that case involved a plaintiff class, not individual plaintiffs--universality made sense, as everyone in the class was a plaintiff protected by the injunction.

The court also relies on the fact that it found the regulation unconstitutional on its face, not simply in its application. But facial as opposed to as-applied goes to the scope of the judicial analysis. It should not go to the scope of the court's remedial authority. And it should not empower a district court to issue an order binding every district court in the country in actions involving different plaintiffs and subjecting the federal government to contempt sanctions for enforcement efforts having nothing to do with the two plaintiffs. Slapping the "facial" label on constitutional analysis should not so enhance the court's precedential or remedial authority.

Posted by Howard Wasserman on November 21, 2017 at 11:33 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


Wasserman , just some illustrations and citations from the Verdict , so would be cut clear , here :

" The Executive order does not make clear what conduct might subject a state or local jurisdiction to defunding or enforcement action , making it impossible for jurisdictions to determine how to modify their conduct , if at all , to avoid the Executive order's penalties ..... "

And :

" Further because the executive order does not clearly define " sanctuary jurisdiction " , the conduct that will subject a jurisdiction to defunding under the Executive order is not fully outlined ."

And :

" The federal government argues that the Executive order does not change the law , but merely directs the Attorney General and Secretary to enforce existing law ..............But in reality , the defunding provision instructs the Attorney General and the Secretary to do something that only the Congress has the authority to do - place new conditions on federal funds.... "

End of quotations :

Now , this is a very partial list of violations . How would it matter , who are the litigants or parties ?? It should be implied upon the whole US , and the conduct , is clearly unlawful , no matter even , to what extent another party would comply with it even .


Posted by: El roam | Nov 23, 2017 6:43:13 AM

Wasserman ,

One must consider the conduct , the conduct itself of the authority . So whatsoever , litigants or parties , won't change nothing , since so grave is the violation .

Imagine a felon , who would waive his due process right . would it help ?? not at all !! the police , the courts are obliged whatsoever to keep his due process rights ( at least the core of it ) .

Now , if you have read the ruling , you have seen , how grave were the violations . And Why to waste time of courts , especially , while there is similarity with other states , at least since the EO and the Memo at issue , touch the whole US in fact ( or more relevant counties ) .


Posted by: El roam | Nov 23, 2017 6:22:33 AM


Even accepting that the current administration is not rational, that does not argue for easing the built-in limits on injunctive relief. Courts can issue injunctions a plaintiff-at-a-time, as they always do. There is no need to rush into one injunction for everyone.

Posted by: Howard Wasserman | Nov 22, 2017 10:48:58 PM

". . . extent of violation established dictates it , not the geographical extent of the plaintiff ) surly justifies universal injunctive relief"

Courts don't declare broadly applicable constitutional principles for all--they declare those principles in the course of providing relief to particular parties. The "violation" was only of the rights of the named plaintiffs from threatened enforcement, so an injunction prohibiting enforcement as to the plaintiffs remedies that violation. That the law may violate the rights of others is a matter for subsequent litigation, stare decisis, and precedent.

Posted by: Howard Wasserman | Nov 22, 2017 10:43:04 PM

^ So the applicability of law is subject to whatever you deem rational?

No fan of Trump, but the constant melodrama a) only feeds him and b) is unbecoming of serious people.

Posted by: YesterdayIKilledAMammoth | Nov 21, 2017 10:51:53 PM

Howard, you have consistently counseled for restraint and limits on injunctive relief. In another place and time, assuming we were dealing with a rational executive branch, I would agree with you.

Posted by: Paul | Nov 21, 2017 9:30:36 PM

Howard, exactly -- and if you're going to go grand, you may as well go REALLY grand.

Posted by: Orin Kerr | Nov 21, 2017 8:45:12 PM

They would have as much legal effect and be as much within the judicial power.

Posted by: Howard Wasserman | Nov 21, 2017 8:24:49 PM

Nationwide injunctions are cool, but I'd be more impressed if a district judge enters a planetary injunction or (better yet) a galactic injunction.

Posted by: Orin Kerr | Nov 21, 2017 7:40:08 PM

He who wants , can reach the ruling itself ( conveniently , independently ) here :


Posted by: El roam | Nov 21, 2017 7:29:42 PM

Thanks for the post , the counties have very well demonstrated the clear violation of fifth amendment and the tenth one . The unconstitutionality , has been very well demonstrated , and no doubt , it is a fundamental one . Such grave violation , combined with efficiency and relevancy discretion ( avoiding further petitions all over the US , and the principle that the extent of violation established dictates it , not the geographical extent of the plaintiff ) surly justifies universal injunctive relief . One can't see here , how plaintiff class Vs. individual plaintiffs , makes difference .

Posted by: El roam | Nov 21, 2017 7:24:42 PM

That's ok -- this injunction doesn't do anything, anyway. It prohibits implementation of the E.O. in a way the government insists the E.O. does not authorize in the first instance. The real action is in the case brought by Chicago against the Byrne grant revocations.

Posted by: Marty Lederman | Nov 21, 2017 6:37:23 PM

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