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Thursday, February 01, 2018

Universal injunctions at the state level (Updated)

Judge Crabtree of the District of Kansas preliminarily enjoined, as violative of the First Amendment, a Kansas law requiring those who enter into contracts with the state to certify that they are not engaged in boycotts of Israel. The court enjoined the Commissioner of Education from enforcing any statute, law, policy, or practice that requires independent contractors to certify that they are not participating in a boycott of Israel. And the court enjoined "defendant from requiring any independent contractor" to sign a certification that they are not participating in a boycott of Israel as a condition of contracting with the state.

In other words, the court entered a universal injunction. The decision shows that judges are issuing these orders unthinkingly and automatically. And it shows that the problematic phenomenon is not limited to challenges to federal law. It also shows why universal better describes these injunctions. The non-particularized scope of the injunction's "who" remains whether the challenged law is a federal law applying to people across the nation  or a state law applying to people in one state--the injunction purports to protect the universe of people who might be subject to the law's reach, whatever that law's reach. The court again saw itself not as resolving a challenge by one plaintiff to threatened enforcement of a constitutionally suspect law against him, but as resolving the status of the law itself.* Even if universal injunctions are sometimes warranted, this does not appear to be an appropriate case--it is difficult to see how this plaintiff is denied complete relief if the state can enforce the certification requirement against other independent contractors.

[*] This vision affected the mootness analysis. The state had given the plaintiff a waiver from the certification requirement. But the court held that the waiver did not moot the case because the state could deny the same waiver to others. If the court properly understood the issue as the validity of enforcement as to the plaintiff, enforcement against others should not matter.

Update: Josh Blackman emailed to remind me that Judge Crabtree issued a similarly worded universal injunction barring enforcement of the Kansas same-sex marriage ban as to any and all couples seeking licenses.

Posted by Howard Wasserman on February 1, 2018 at 11:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


We have reached the point of diminishing returns and of agreeing-to-disagree. I will make several points that underlie my opposition to universal injunctions, most or all of which you will reject. But they explain why we have to agree to disagree and why it probably is not worth it to keep commenting on every post I write on this topic.

1) Facial unconstitutionality is about the proof required and the scope of the precedent set by the decision. It is not about the scope of the injunction. (Dick Fallon has more on this and why, given the scope of the injunction, all constitutional challenges really are "as applied").

2) A law is constitutionally valid or it is not constitutionally valid. There are no degrees of constitutionality that expand the court's remedial authority--if the law is really, really unconstitutional, a broader injunction is appropriate, but if it is only a little bit unconstitutional, the injunction must be narrower. I guess unconstitutionality is like pregnancy.

3) A court declaration that a law is unconstitutional--and particularly one district court declaration that a law is unconstitutional--does not establish the unconstitutionality of that law in some Platonic or ideal sense. The courts--and certainly not one district court--do not have the final say on constitutional meaning. This does not mean rights are meaningless platitudes. It does not mean steps must be taken by everyone to enforce those rights by getting someone to agree that the law is constitutionally invalid. It also means that non-judicial actors--such as Kansas officials--can continue to act on their own constitutional understandings of constitutional meaning.

4) The issue before the court in the Kansas case was the threat of enforcement of the anti-BDS law as to one potential contractor. The court must resolve the legal question of the validity of that law, but only because it is necessary to decide the issue of enforcement as to that potential plaintiff. I reject the conception that the law itself, as a res, is put before the court. But only that latter, more recent, conception justifies non-particularized injunctions in most cases (and certainly in a case such as this).

5) The equitable principle is that an injunction must give complete relief to the plaintiff and should not be broader or more burdensome to the defendant than that. An injunction barring enforcement as to this plaintiff provides complete relief (it probably was unnecessary, because the state waived the requirement, but that goes to mootness). The plaintiff gets complete relief even if the state can continue enforcing against someone else. And

6) My evidence for it being automatic and unthinking is that the court made no effort to justify its scope (many courts have at least tried in the immigration cases, particularly Judge Leinenweber in the sanctuary-city case in Illinois, even if I do not think their reasoning works). And, as Josh pointed out, this judge used identical language to do the same thing four years in a same-sex marriage case. So it seems pretty automatic. And if not unthinking, it certainly is unexplained.

Again, you likely reject most or all of these and it is obvious that you disagree with the conclusion. So there we are.

Posted by: Howard Wasserman | Feb 3, 2018 11:04:35 AM

"The decision shows that judges are issuing these orders unthinkingly and automatically."

This is a pretty wild claim - I don't see any evidence that the judge did anything in this case "unthinkingly" and "automatically." It seems like maligning the thought process of a judge like that would require some sort of evidence or proof.

This universal injunction business seems so overblown to me in general, but particularly in this case. In First Amendment law, there's a long-standing distinction between as-applied challenges and facial challenges. That's what seemingly happened in this case - it wasn't that there was something about the plaintiff that made this law violate the First Amendment in their own unique circumstance. It's that the law, on its face, is unconstitutional and thus cannot be enforced by the state. The universal injunction only makes clear what is already true, that the state no longer has any legal authority for enforcing the statute that was struck down and so cannot do so with respect to anyone. Under your theory, I don't see how facial challenges could be allowed at all, which is certainly a position one can take but would require throwing out well over a century of jurisprudence.

Further, I think universal injunctions are required to give meaning to constitutional rights. Every person who wants to do business with the state while boycotting Israeli businesses shouldn't have to file a lawsuit in order to enforce their First Amendment right to do so (assuming, in this scenario, that the state only honors the injunction against the plaintiffs in the original case and continues to enforce the law against everyone else, an option legally available to them without the universal injunction). To say that you have a constitutional right, but whenever you want to exercise it you first have to obtain an injunction in court is to say that you don't have a right at all. Universal injunctions in cases such as this one thus effectuate constitutional rights rather then letting them be largely meaningless platitudes. And to the extent that the injunction is broader than is required to effectuate the people of Kansas's constitutional rights, that's certainly an argument the state can make on appeal for narrowing the scope.

And yes, it's true that any future lawsuits will be easy victories. They may even force the state to pay attorney's fees or sanctions, making the financial cost a wash. But they still require time. They still require finding a lawyer. And we know for an empirical fact that very few people will make the effort to go to court to enforce their legal rights, meaning the net result is that the state will continue to violate people's rights, which is not even to mention the chilling effect that results from the threat that the law could possibly be enforced against you.

Posted by: J | Feb 2, 2018 11:09:14 PM

Reading the ruling suggests clearly , that it is absolutely correct , and the injunction must be Universal one . The judge has based it well on Supreme and circuit court precedents . The unconstitutionality is fundamental . It does touch , the utmost sensitive issues of first amendment . It does touch , the expressive elements , here I quote for example :

" Because the Kansas law regulated inherently expressive conduct …. "

The hardship balance , justifying such injunction , also well proven . When It comes to denial of free speech , I quote ( based on supreme court precedents ) :

" The court explained , " the loss of first Amendment freedoms , for even minimal periods of time , unquestionably constituted irreparable injury "

As well concerning other potential contractors and plaintiffs , there is no way , the case would differ in other circumstances , let alone , while public interest is at stake here . Here I quote :

" After balancing the relative harms imposed by a preliminary injunction, the court finds that the continuing harm to plaintiff’s First Amendment rights—and those of persons similarly situated—outweighs defendant’s speculative suggestion that an injunction will harm him, the State of Kansas, or Kansas merchants. Ms. Koontz has carried her burden on this third part of the injunction test. "

And concerning the public interest as a whole :

" A desire to prevent discrimination against Israeli businesses is an insufficient public interest to overcome the public’s interest in protecting a constitutional right. The court finds that an injunction will serve the public interest."

So , that was indeed a classic case , for issuance of such Universal one .No doubt !!


Posted by: El roam | Feb 2, 2018 9:33:39 AM

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