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Sunday, October 07, 2018

Half measure on universal injunction in sanctuary cities case

On Thursday, District Judge Orrick of the Northern District of California enjoined enforcement of DOJ regulations denying law enforcement funds to sanctuary cities. Judge Orrick previously enjoined enforcement of a presidential order denying funds to sanctuary cities. Judge Orrick made that prior injunction universal, although the Ninth Circuit narrowed it to protect only San Francisco and non-party California, concluding that the record did not support universality.

Undeterred, Judge Orrick made this injunction universal, although with several pages of analysis and justification. That analysis ultimately comes down to this--when a narrow law or regulation (or at least a federal law or regulation) is constitutionally invalid, a universal injunction is proper. And despite the rhetoric of "careful consideration," that principle is unbounded and always applicable.

The court acknowledges (and purports to share) the concerns that universality preempts percolation of issues. But then he offers two points in response: 1) the issues here are the same as in the Seventh and Third Circuits, so percolation is occurring and 2) this is a "narrow constitutional issue," so it "does not seem to be the type of situation in which allowing more cases to percolate in federal courts would be of much benefit." The second point is simply wrong. Pure and narrow legal issues benefit from percolation, from multiple sets of eyes considering and analyzing legal questions; this is the first time I have heard it suggested otherwise. The first point misses the main issue: The first court to enter a universal injunctions ends (or should end) all litigation on the issue,; this renders litigation in other courts either moot (because any party to the second action is already protected by the original universal injunction) or dangerous (because the second court issues an order conflicting with the original universal injunction, potentially imposing conflicting obligations on the defendant).

But the court hedged slightly, staying the universality pending appellate review of a narrower alternative holding about the scope of the underlying federal statute (which applied only to the parties and thus did not warrant universality). This may become a common move between district courts, who seem to like universality, and courts of appeals, who are more circumspect about scope--make the injunction universal, but stay it. Judge Leinenweber of the Northern District of Illinois made the same move.

Posted by Howard Wasserman on October 7, 2018 at 10:55 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Oh, Ok. Again, putting aside the legal questions (which I discussed in my post), I'm not sure how much it matter whether the district judge issues an injunction that applies to all couples in the state. After all, even if the injunction were limited, presumably the state would appeal, and if the decision were affirmed by the court of appeals, the state would almost surely apply the CTA holding statewide. If *that* common result is not troubling, why is it more problematic if the same thing happens while the appeal is pending?

Posted by: Marty Lederman | Oct 8, 2018 4:19:14 PM

No. I mean an injunction in an action by Couples A, B, and C that requires the issuance of licenses by all other county clerks in the state to all other couples. That is, a universal injunctions (protecting every conceivable plaintiff), where the universe is the state.

Posted by: Howard Wasserman | Oct 8, 2018 3:14:48 PM

You mean an injunction that runs against defendant States, and other States' statutes, that aren't in the case? Of course not. But those aren't what we're talking about here. I must be misunderstanding you.

Posted by: Marty Lederman | Oct 8, 2018 2:56:33 PM


Thanks for the comments; I do recall your post from April. You may be right that the harms are overstated in these cases. I tend to think that it is too hard to tell the one from the other, so that there either will be bleed into cases outside this core or every challenge to a major, wide-reaching federal law will be universal.

How do you feel about these injunctions in something like the marriage-equality litigation, where every state had a similar law and simultaneous challenges in multiple states all were working there way towards SCOTUS? Would you have accepted universal (programmatic) injunctions within each state?

Posted by: Howard Wasserman | Oct 8, 2018 1:02:25 PM

Sorry -- that iiii should be a iii, obviously.

Posted by: Marty Lederman | Oct 8, 2018 5:02:03 AM

Howard: As I explain in Point #2 of the post below, although I think the legal arguments against such programmatic injunctions are formidable, I also have serious doubts whether they cause the harms that you identify, at least in these recent sorts of cases, involving high-profile challenges to controversial federal programs that will almost certainly be resolved by the SCOTUS within, say, 24 months. Short version: (i) We get plenty of percolation and divergent judicial views during that period; (ii) a uniform *result* in the interim is not a bad thing (w/the alternative being perhaps thousands of cases that need adjudicating, as in Sam Bray's New Deal examples); and (iiii) more often than not that uniform result will a stay or shaping of the injunction(s) by the SCOTUS, which is what we've seen in recent cases.


Posted by: Marty Lederman | Oct 8, 2018 5:01:19 AM

Just worth to note , that beyond the constitutional and procedural issues of the nationwide injunction ( generally speaking) in that particular case , the judge , has justified it , among others , due to concrete narrow legal issue , has to do with simple balance of hardship :

And it is , that money or funding , delayed or avoided ( by the federal government , to states ) is simply reallocated and spread further ( between other states ) and may become " total loss " finally , for essential programs ( state programs ) Here I quote :

As in " City of Chicago " I find that this case presents a narrow issue of law that does not vary from one jurisdiction to the next .....

And :

" The conditions imposed on one can impact the amounts received by others ."

And :

Because the amount withheld or penalized for non - compliance with other Congressional statutory requirements is then reallocated to other recipients .

End of quotation :

What justifies nationwide injunction in his eyes . For states and geographical scopes or jurisdictions , are essentially connected to each other , affected by each other in this regard .


Posted by: El roam | Oct 7, 2018 3:08:45 PM

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