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Monday, May 13, 2019

Predicting SCOTUS on universal injunctions (Updated)

Noah Feldman predicts that SCOTUS will reject the Trump Administration's calls to reign-in universal injunctions, basically arguing that taking the power to issue non-particularized injunctions from lower courts makes more work for SCOTUS. Josh Blackman responds in a Twitter thread.

I agree with Josh that Noah makes his category error here:

If the justices were to hold that the lower courts lack the power to issue nationwide injunctions, then there would be only one way for the courts to block a law nationwide: The Supreme Court would have to issue the injunction itself. After all, it’s the only court with a truly national jurisdiction.

That wouldn’t give the justices any extra power, because they can already issue nationwide injunctions. But it would give the justices more work.

* * *

The upshot is that, if they prohibit nationwide injunctions by the lower courts, the justices will be agreeing to place themselves more in the spotlight, without the plausible deniability that allows them to leave injunctions in place.

SCOTUS does not have any greater power to issue a universal/non-particularized injunction than a district court. The limit on non-particularized injunctions comes from Article III's case-or-controversy requirement, which limits SCOTUS as much as it limits lower courts. If a lower court issues a particularized injunction and SCOTUS affirms, that does not create a universal injunction--it creates an Article-III-final particularized injunction, one that the executive no longer can avoid. As Josh notes, it also creates binding precedent that lower courts must follow to resolve other cases involving other parties and will use as the legal basis for later, also-particularized injunctions. But the SCOTUS decision in Case # 1 does not alone get us there.

Feldman envisions SCOTUS using the lower courts to avoid taking responsibility for universal injunctions--allowing some to remain in effect while overturning those they do not like. If lower courts cannot issue universal injunctions, SCOTUS would be forced to issue them. But this proceeds from several false premises, First, that a SCOTUS-affirmed injunction can have broader judgment (as opposed to precedential) effect than a lower-court injunction. Second, that if SCOTUS "really did not like" a particularized/non-universal injunction it would not overturn it just as quickly when asked to do so by the government.

Update: One additional point I neglected earlier: Noah begins by minimizing this as a legal-academic debate that had no practical resonance before Vice President Pence raised it in a Fed Soc speech last week. But that is not accurate. The scope issue was raised in U.S. v. Texas (DAPA) and was briefed, at the Court's request in Trump v. Hawaii, triggering a question from Gorsuch (his "cosmic injunction" line) and a concurrence from Thomas arguing that injunctions should remain particularized to the parties. He is write that legal scholars are playing a role here--but the government has been engaged on the subject at least as long.

Posted by Howard Wasserman on May 13, 2019 at 10:25 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink


The problem is that one district court judge can reject a challenge to an administrative action, while another one can accept it and issue a nationwide injunction. How is that possible? Don't both court have equal standing? If one thinks the law is constitutional and the other thinks it's unconstitutional, how can the latter have the right to determine what the law is for the whole country? I'm not sure the Court should toss out national injunctions altogether, but they surely ought to prescribe some limits.

Posted by: Douglas Levene | May 14, 2019 11:03:29 PM

Important indeed. But what is that terminology we read here, that only the Supreme court, has truly the jurisdiction for such injunctions ? For, the federal constitution ( Article III) provides clearly, I quote:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution......

End of quotation:

So,we read : " under this Constitution ". So, if an issue, is a federal one, it does touch the whole nation basically. Surly when the illegality, or unconstitutionality is prima facie one, or fundamentally flawed, and can't go on further.That is to say, that even the Supreme court, can't deny the power and the duty ( emphasizing : duty, inherent one ) of lower federal courts, to bar at once, what is illegal and unconstitutional per se. Means, no way whatsoever, could have any sense or point further. Like:

The president, pardoning for state offense, while can pardon only for : federal offense. What would be the point further ? Or, in reality :

Defunding budgets to states, while only the Congress can do it (See county of Santa Clara v. Trump ). Or, denying immigrants entry, or limiting it, only through port of entry, while runs counter a federal statute, explicitly so ( see:East Bay sanctuary covenant v. Trump). That's it !


Posted by: El roam | May 13, 2019 11:22:07 AM

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