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Sunday, April 22, 2018

Universal injunctions in Trump v. Hawaii and Chicago v. Sessions

SCOTUS hears argument on Wednesday in Trump v. Hawaii on the constitutional and statutory validity of the third travel ban, including (perhaps) the validity of the universal injunction. Marty Lederman explores the scope-of-injunction issue; he concludes that if the court reaches the scope question, it may be entirely dicta. A Supreme Court decision declaring the ban constitutionally invalid will, in almost all cases, result in the government suspending enforcement across the board. So the Court passing on the scope issue will have no practical effect.

Meanwhile, a divided Seventh Circuit panel affirmed the universal injunction as to the sanctuary-city-funding regulations. Sam Bray critiques the ruling at the VC. I will be spending the coming week updating some writing on the subject.

A few thoughts after the jump.

Marty's argument that a Supreme Court decision has the same effect as a universal injunction is right as a formal matter, because the President tends to proceed on an assumption of judicial supremacy--the Court's constitutional word is the last constitutional word. Much of the public shares that assumption, so the President may be politically bound to do the same. But a committed judicial-departmentalist executive could make these questions interesting.

Marty touches on the plaintiffs' Establishment Clause argument in favor of universality--that a limited injunction "fail[s] to 'remove the stigmatic harm that respondents suffer based on ‘the simple enactment’ of the Government’s policy.'”  Although I do not discuss it in my article, this argument has never made sense to me. The traditional conception is that the simple enactment of a law, regulation, or policy does not violate constitutional rights; only the (actual, attempted, or threatened) enforcement of the law, regulation, or policy violates constitutional rights. And I do not believe there is anything unique about the Establishment Clause in this regard. The E/C cases involving stigmatic harm have involved executive actions sending a message of exclusion--religious displays, football prayer, legislative prayer, etc. Stigmatic harm has not been a basis (to my recollection--I have not looked at this recently) for challenging the enactment and existence of the law itself. If it were, the injunction would have to compel repeal of the law or regulation, rather than prohibiting its enforcement. This logic, if it prevails, could not be limited to the Establishment Clause. It also should apply to speech cases, because the "simple enactment" of the law would have a chilling effect even on those not threatened with enforcement, justifying an injunction to protect them along with the threatened (so as to have standing) plaintiffs.

Hawaii also argues that it cannot identify in advance who might seek to study there so as to be protected by the injunction, so everyone must be protected. But the difficulty of identifying those with a sufficient connection with the plaintiff can be left for future enforcement of the injunction protecting Hawaii; it need not be decided at the point of issuance.

As for Chicago and sanctuary cities, the court deserves credit for offering a detailed and non-conclusory defense of universality, only the second court to do so (the other being the district court it was affirming). Sam captured the defects in the opinion. The problem remains the same. The attempt to allow this universal injunction while limiting universal injunctions to "rare circumstances" fails, because the limiting principles are not limiting principles and appear to justify a universal injunction in every case.

Posted by Howard Wasserman on April 22, 2018 at 05:59 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


On reflection, I may have misread your post, Howard. I think I agree with you and with the plaintiffs here--it's both new and correct in my mind.

Posted by: Patrick | Apr 24, 2018 2:00:15 PM

You're right that in the speech/overbreadth case the chill comes from the threat of enforcement (and I suppose it would be the same in my hypothetical EC/chilling case). But I disagree that the stigma from the travel ban comes from the threat of enforcement; in my opinion the stigma comes from the fact the law or policy exists. It sends the message to everyone, irrespective of whether it's enforced or against whom it's enforced, that a certain religion is disfavored by the government. That actually makes me think maybe the EC is more deserving of universal injunctions, on average, than other areas because of the type of harm sometimes present. It's a tough are of law, though, and I'm not expert, so I won't attempt to delve further into it.

Posted by: Patrick | Apr 24, 2018 1:56:32 PM

But all of those cases involved the chill deriving from enforcement or threatened enforcement of the law, not the chill or stigma of the mere existence or enactment of the law.

So enforcement of the travel ban against X sends a message to X of his outsider status, which should warrant an injunction barring enforcement against X. But the plaintiffs' argument is that the injunction also should bar enforcement against Y, because he is stigmatized by the existence of the law and its enforcement against X. That's new.

Posted by: Howard Wasserman | Apr 24, 2018 5:06:44 AM

We actually do see facial challenges in the speech context, at least when it comes to overbreadth challenges. Reno v. ACLU comes to mind, but surely there are others. And I'm not sure it should be different for EC challenges. For one thing, I can imagine a law that violated the EC having a similar chilling effect, depending on its details. But even other core, non-chilling EC violations (thinking "entanglement" or "endorsement" that doesn't involve the transfer of money or resources) deal in primarily stigmatic harm. Granted, most EC violations seem to happen at the local level, but I would think the type of harm does counsel for broader rather than narrower injunctions.

Posted by: Patrick | Apr 23, 2018 9:34:13 PM

If the government does violate a universal injunction, who will have standing to ask for enforcement of the injunction? I see that the 7th circuit does discuss standing but only briefly, and only in terms of whether Chicago had standing to ask for the remedy. Can Chicago enforce the injunction if another city is denied funding? Is there are doctrine of third party beneficiaries of injunction, analogous to the contract setting?

Posted by: Jr | Apr 23, 2018 4:38:07 PM

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