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Tuesday, September 11, 2018

Injunction Authority Clarification Act of 2018

Introduced by House Judiciary Chair Bob Goodlatte (who miraculously discovered the constitutional command for particularized injunctions on January 20, 2017), the bill prohibits "an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure."

Goodlatte's conversion of partisan convenience aside, it is a good bill. It addresses and eliminates the real problem of non-party protection, without conflating distinct and non-problematic issues of geographic scope (by controlling venue) or source (by pushing cases to three-judge district courts). It leaves broad relief available through 23(b)(2) injunctive class actions. And it does not purport to change the Court's standard for the scope of an injunction--commensurate with the violation and no more burdensome than necessary to provide complete relief; the bill thus should continue to allow broad systemic injunctions where remedies are indivisible (e.g., legislative redistricting or religious displays) or where relief to the non-party is necessary for the plaintiff to obtain complete relief.

And on one old scholarly note--I am glad the bill does not speak of jurisdiction but of remedy, which should be a non-jurisdictional merits-related issue.

Posted by Howard Wasserman on September 11, 2018 at 07:13 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Just correcting my comment down there :

Should be : respectively , and not " respectfully " of course .


Posted by: El roam | Sep 13, 2018 10:52:27 AM

You can't drop that language because the person of concern in the statute is not someone restrained by the injunction, but a non-party against whom enforcement of the challenged law would be restrained. The target is sanctuary cities other than Chicago who might lose DOJ funding; any injunction does not restrain them. Similarly, the issue isn't injunctions that bind non-parties--it's injunctions that benefit non-parties.

Perhaps "purport" is inelegant. But it is necessary to reach the situation at issue, of an injunction that simply prohibits enforcement, without specifying as to whom.

Posted by: Howard Wasserman | Sep 12, 2018 5:08:05 PM

Yeah, "purports to restrain the enforcement against a a non-party" is so garbled I thought it had been mistranscribed. Delete "the enforcement against" and you have something workable.

Posted by: Asher | Sep 12, 2018 9:22:14 AM

Just to illustrate , the issue of restricted zones , with the famous case at the time of Korematsu v. United States , one may read here ( syllabus , summary , and the case itself respectfully , restricting access to any Japanese , and not only the litigant of course ) :





Posted by: El roam | Sep 12, 2018 6:16:38 AM

Just clarifying further briefly my comment :

The bill , assumes that there is clear and conclusive distinction between , party , and non-party . In reality , there is no . There are many times , proxy issues . A federal agency located somewhere , implementing federal policy . Or , chain of restaurants , and specific one as litigant and party , but headquarter , located somewhere else .

Also , it may happen , that an order , is directed or addressed to no one specifically , but to every person ( like restricted zone , due to military need ) .

So , it is not practical and operative simply to assume , that federal judge , can ignore such consequences. All this , without touching constitutionality issues , but practically , prima facie only. All this is not mentioned at all there in that bill . But , black V.white stipulations


Posted by: El roam | Sep 12, 2018 4:57:17 AM

65(d)(2) is about who can be bound by the injunction and who the court can control to protect the plaintiff; this bill is about who the injunction can protect.

Posted by: Howard Wasserman | Sep 11, 2018 10:30:13 PM

"that purports to restrain the enforcement against a non-party"

This doesn't make any sense. First "purport" here is vague, I assume they mean it as a synonym for "proposes" but it has other common meanings. More importantly, the problem with a national or universal injunction isn't that it seeks to "restrain enforcement" but that it binds a non-party.

It would be a lot simpler and clearer if the bill said. "No court of the United States shall issue an order that binds a non-party, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure."

Posted by: James | Sep 11, 2018 8:35:47 PM

Howard, This statute seems inconsistent with 65(d)(2) which allows agents or non parties working in concert with parties to be bound. What do you think about that?

Posted by: Alexandra Lahav | Sep 11, 2018 1:46:56 PM

They are using nationwide to mean what I (and Justice Thomas) have been calling universal.

Posted by: Howard Wasserman | Sep 11, 2018 8:51:33 AM

Interesting , but beyond discussion further concerning the unconstitutionality of such bill or law , it is prima facie not clear. It is bearing the title :

" .....to prohibit the issuance of national injunctions ..... "

But , that is not what is prescribed there . What is prescribed is that :

" NO court of the United states ...........shall issue an order that purports to restrain the enforcement against a non party of any statute , regulation ,order , or similar authority , unless the non- party is represented ...... "

So how shall it does prohibit national injunctions ? Why wouldn't it be possible according to him , that both parties are litigants , and the injunction , would still be national or Universal ( or nationwide . Unless national doesn't refer to universal or whatsoever , something really implausible right now it seems ) .


Posted by: El roam | Sep 11, 2018 8:47:20 AM

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