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Wednesday, July 03, 2019

Judicial departmentalism and overbroad injunctions in the news

First, the Fifth Circuit reversed the contempt citation against a Carmen Alvarez and her attorneys for attempting to enforce the Department of Labor's overtime regs in a private action following a universal injunction prohibiting DOL from enforcing those regs in an action brought by Nevada and other states. The court held that there was no privity between DOL and Alvarez or her lawyers, because there was no evidence of an express or implied relationship among them that is necessary for one party to adequately represent the interests of another. The court stated that Chipotle's theory that "DOL represents every worker’s legal interests through its enforcement of the FLSA so as to bind every worker in the United States to an injunction where the DOL is the only bound party lacks authoritative support." Like Title VII, the private right of action under labor laws and regs leaves room for private persons to claim injuries and remedies distinct from those established in government enforcement.

Second, Texas GOP Representative Chip Roy took to Twitter to urge the President and the Commerce Department to ignore the lawyers "Completely. Print the census with the question - and issue a statement explaining why - “because we should.” Done." Such action could not be defended as judicial departmentalism, which allows executive disregard of precedent but not particular orders in particular cases; those most be obeyed unless reversed or modified. The President, the Commerce Secretary, and the other federal officials involved would be violating a court order prohibiting the use of the citizenship question* and would be subject to contempt and contempt sanctions for that action.

[*] Another example of indivisible remedies, giving an individual injunction universal scope. The government cannot print or use multiple census forms, so an injunction protecting individual plaintiffs spills over to protect everyone.

Posted by Howard Wasserman on July 3, 2019 at 07:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Interesting and important. But not to forget, even if contempt of court, is not justified here indeed, yet, the injunction was Universal one, issued by federal court. Touching federal issue and Universal as such, I quote the decision from "Nevada":

The State Plaintiffs have established a prima facie case that the Department’s salary level under the Final Rule and the automatic updating mechanism are without statutory authority.

End of quotation:

So, even if not contempt as specific remedy or sanction, yet, we have an issue per se. One can't violate it whatsoever, with or without legal nexus, or sufficient representation or not.


Posted by: El roam | Jul 3, 2019 9:56:48 AM

The government could offer a new reason and allow the court to consider that reason, with a stay in effect while the courts did so. But Rep. Roy suggests that the President add the question and go forward, without explanation (other than "because we should"). That would violate the district court order, affirmed by SCOTUS, that the form cannot include the question and the department must offer a proper explanation before it can include it.

I was talking about Roy's tweet and what would happen if Commerce followed that course. It is not going to do so.

Posted by: Howard Wasserman | Jul 3, 2019 9:56:11 AM

I am confused.

Prof. Wasserman writes:
"and the other federal officials involved would be violating a court order prohibiting the use of the citizenship question"

Scotusblog summarizes the holding as such:

"The secretary of the Department of Commerce did not violate the enumeration clause or the Census Act in deciding to reinstate a citizenship question on the 2020 census questionnaire, but the district court was warranted in remanding the case back to the agency where the evidence tells a story that does not match the secretary’s explanation for his decision."

The language of the opinion itself concludes
"We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action."

The Gov has elected not to pursue the case further. Therefore the current state of case is a remand for want of a more believable reason for adding the question- a remand which will not occur.

So we are left with a court order blocking a question based on refusal to accept one reason, but wiling to consider another. It would seem to me that judicial departmentalism would prevent a citizenship question premised on the blocked reason, but permit a question as directly ordered by the president or provided with an acceptable reason. This would disregard precedent, but not a particular order in a particular case. What am I missing?

Posted by: recentgrad | Jul 3, 2019 9:38:24 AM

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