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Monday, January 15, 2018

NY Times on (improperly named) nationwide injunctions

In the wake of a decision enjoining the DACA-repeal regulations, the Times has an article on recent nationwide/universal injunctions, especially in immigration cases. The article includes comments from Sam Bray (who wrote the definitive piece on the subject). (I have been writing about this at Prawfs for a while and my own effort in the debate, for a symposium at Lewis & Clark later this year, will be on SSRN in a few days).

A few thoughts on the article (much of which I have talked about and will hit in the forthcoming paper) after the jump.

The article (like so many of these discussions) ignores the real issue of universality v. nationwide scope.  It is not the injunction applying everywhere, but applying to everyone—prohibiting enforcement of the challenged laws not only as to the named plaintiffs, but as to every person against whom the law might be enforced. In the sanctuary cities case in the Northern District of Illinois, the injunction barred enforcement not only against the named city (Chicago), but every other sanctuary city. In the travel ban cases, it barred enforcement not only against the named plaintiffs, but all persons from the named countries. That is the real problem, because the general rule is that an injunction should not extend beyond the plaintiffs, absent certification of a plaintiff class or the rare situations in which rights and relief are indivisible as between the plaintiffs and others.
The Supreme Court’s power to issue these beyond-the-plaintiff injunctions is no greater than that of a single district judge (the article includes what I am sure is an out-of-context rhetorical question from Sam about how can a single judge decide a question for the whole country) . If the injunction that the district court can enter should be limited to the plaintiffs, then the Supreme Court’s affirmance of that injunction must be similarly limited. SCOTUS’s decision has nationwide/universal presidential value—so any new enforcement efforts by the government against non-plaintiffs would fail. But that is the effect of precedent (and a degree of non-departmentalism), not the effect of a judgment/injunction.
The article makes this sound new. But we had this conversation during the marriage-equality litigation and its aftermath. There were questions of what SCOTUS’s decision about the Kentucky ban meant for the South Dakota ban, what SCOTUS’s decision about the Kentucky ban meant for the antics of Kim Davis as to new marriage applications, or what the decision of one district court in Alabama meant for the antics of Roy Moore. Again, the answers depended on whether one talked about precedent or judgments/injunctions.

Posted by Howard Wasserman on January 15, 2018 at 07:51 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


I attended this year's AALS workshop with Sam Bray, Amanda Frost, Jim Pfander, which was terrific. At the workshop, the participants discussed the rise and fall of many different judicial remedies to oversee and check executive power--including injunctive relief, damage actions under Bivens, sanctions for contempt, as well as class actions and other forms of complex adjudication (like MDLs).

I think one of the most important things that Sam observed was that we should think about all of these remedies together, as different alternatives the judiciary can use to hold the executive branch accountable. If we do so, that should raise some countervailing concerns. Just as Howard has justifiably raised the flag about the expanded use of national injunctions by judges, we also shouldn't lose sight over new constraints that have been imposed on the judicial oversight of executive action--including recent limits on damage actions (Ziglar v. Abbasi), contempt sanctions (https://harvardlawreview.org/2018/01/the-endgame-of-administrative-law/), and class actions under Rule 23(b)(2).

On this last point, I recommend Maureen Carroll and David Marcus's work. They have both described new limits on civil rights and other injunctive relief class actions, which many agree would otherwise lawfully permit judges to use national injunctions. See Maureen Carroll's Class Action Myopia, 65 Duke Law Journal 843-908 (2016) and David Marcus, The Public Interest Class Action, 104 Geo. L. J. 777 (2016). New limits to injunctive relief class actions have grown out of increased statutory bars to judicial review, myopic comparisons to commonality for Rule 23 damage class actions, and government actors who push, and courts who have adopted, the "necessity doctrine." Some recent national injunctions have been issued as putatitve classes, perhaps most notably, the first travel ban case, Darweesh v. Trump. But class actions in some areas of law are notoriously difficult. (For a recent example in the immigration context, see J.E.F.M. v. Lynch, 9th Cir 2016)("We recognize that a class remedy arguably might be more efficient than requiring each applicant to file a PFR, but ... these considerations cannot overcome a clear statutory prescription against district court review.")

On this final point, I've often thought that it's ironic that, just as government agents raise legitimate concerns about use of national injunctions, they also push "necessity" doctrine in class action law. For those unfamiliar with that doctrine, the necessity doctrine says class actions are "unnecessary" and not to be certified if injunctive relief against the government would achieve a similar result as a class action. Some courts have rejected the argument, finding it's application violates the text of Rule 23 and undermines the core purpose of injunctive relief classes against government entities, "a result hardly intended by the Rules Advisory Committee." Newberg on Class Actions 4.35 (2017). But the argument is often pushed, nonetheless, most recently in litigation over whether veterans should be able to seek injunctive relief in a class action to challenge systemwide policies at the VA.

But all of these new doctrinal limits, damage actions, limits on contempt and injunctive relief class actions, increasingly undermine the judicial tools needed to hold executive accountable (and be taken seriously), even as courts expand use of national injunctions.

Posted by: Adam Zimmerman | Jan 15, 2018 6:02:15 PM

PC: No. Summary affirmances by an evenly divided Court do not carry binding precedential force. At most they give the regional court of appeals decision a bit of a precedential boost. But it is not controlling.

Posted by: Howard Wasserman | Jan 15, 2018 3:25:26 PM

from a practitioner's point of view, is it fair to say that this issue is settled (for now) by the equally-divided affirmance of nationwide injunction in U.S. v. Texas, 136 S.Ct. 2271 ? Or does a federal district court still remain free to find that such an injunction is not contemplated under federal law?

Posted by: pc | Jan 15, 2018 2:20:53 PM

Thanks for the post , if the flaw in the action taken by federal agency , is fundamental or fundamentally unconstitutional ( let alone , prima facie so ) it doesn't matter who are the litigants or parties to the dispute . It is fundamentally unconstitutional , the conduct itself of the federal agency is flawed , and even complying with it , wouldn't do !! It is simply constitutionally illegal as such . It has been demonstrated very well in that case of county of Santa Clara v. Donald trump , for the petitioner there , clearly proved that their fundamental constitutional rights have been gravely violated , and whatsoever , such executive order and memo attached , couldn’t be effectuated whatsoever (violation of fifth amendment and the tenth one ) . As such , correctly the judge issued Universal injunction , stating that : " the extent of violation established dictates it , not the geographical extent of the plaintiff . For this is the very essence of federalism and federal constitution , it has broader national / Universal implications ( also merely due to efficiency discretion of course ) .

However , in the related article ( NYT ) it is stated that :
“Increasingly, legal scholars are concerned about the way national injunctions are transforming the relationship between the courts and the political branches,”

End of quotation :

Well this is really baseless with all due respect . Because there is no such thing like relationship between the courts and the political branches . They don't get along or not with each other . For , it has always been so , that courts are exercising judicial review , and the core or the essence of it , is to review legality of the actions taken by the executive branch . For this is the meaning of rule of law : judicial review , and remedy in accordance . The scope of intervention is dictated by the courts , not by the executive branch . Every action , can be the subject of intervention . Nothing can escape it !! otherwise , it would be the ruling of a person or official , not of the law .


Posted by: El roam | Jan 15, 2018 10:06:14 AM

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