« What Did the Joint Committee on Reconstruction Look Like? | Main | Interview with Daniel Markovits on the Fellowship with the Yale Center for the Study of Private Law »

Saturday, June 29, 2019

Another remedy in The Wall

Judge Gilliam of the Northern District of California issued two orders on Friday declaring invalid President Trump's efforts to divert funds for building The Wall. In Sierra Club v. Trump, the court permanently enjoined three acting cabinet officers and "all persons acting under their direction" from "taking any action to construct a border wall" in certain areas using certain funds. In California v. Trump, the court declared the use of the same funds for some of those sections unlawful, but declined to grant a permanent injunction. The court also ensured that the cases could be appealed together by certifying California for FRCP 54 appeal, along with the immediately appealable injunction.

Sierra Club does not speak to the scope of the injunction, because this is a case of indivisible relief and remedy. The court cannot enjoin the use of funds for the wall as to the plaintiffs but not to non-parties; any prohibition on the use of funds unavoidable inures to everyone's benefit, even if the injunction is formally particularized to the plaintiffs.

The court justified denying the injunction in California by pointing to the injunction in Sierra Club prohibiting use of funds on the same sectors of wall. California (and New Mexico, its co-plaintiff) would suffer no irreparable harm, because the injunction protects them in effect if not in name. This provides an interesting example of when declaratory relief may be sufficient and an injunction unnecessary--when an injunction protects the D/J plaintiffs, so the declaration is sufficient. It also answers the Ninth Circuit's question about whether a universal injunction in one case moots another--it does not moot the case because a declaratory remedy may be effective, although an injunction is not warranted. (Not that courts should issue universal injunctions--but this is the practical effect if they do).

Posted by Howard Wasserman on June 29, 2019 at 09:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Important. Trump simply, finds it, very, very hard to comply with the idea, that he does,unlawfully, unconstitutionally, re-programme money, not appropriated by Congress, surly in light of previous rulings on same issues. It is hard to understand it simply. Here I quote for example ( California v. Trump):

In their pending motion, “Defendants acknowledge that the Court previously rejected [their] arguments about the proper interpretation of § 8005 in its [preliminary injunction order].” Defs.’ Mot. at 9. Defendants contend that the Court’s findings were wrong for two reasons: (1) “Plaintiffs fall outside the zone of interests of § 8005 and thus cannot sue to enforce it”; and (2) “DoD has satisfied the requirements set forth in § 8005.” Id. at 9–12. But Defendants here offer no evidence or argument that was not already considered in the Court’s preliminary injunction order. For example, Defendants continue to argue that under Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), the zone-of-interests test applies to Plaintiffs’ claims. Compare Opp. at 9–10, with Dkt. No. 89 at 18–19. And the Court continues to find that the test has no application in an ultra vires challenge, which operates outside of the APA framework, and the Court incorporates here its prior reasoning on this point.


Posted by: El roam | Jun 30, 2019 8:56:07 AM

The comments to this entry are closed.