« Congressional design, Senate partisanship by class, and impeachment trial politics | Main | A Necessary Implication »

Monday, January 27, 2020

Thomas and Gorsuch on universal injunctions (Updated)

SCOTUS stayed pending appeal the injunction prohibiting enforcement of the Trump Administration's public-charge regulation, another example of the government seeking and the Court granting extraordinary relief to allow the administration to continue enforcing policies pending litigation where the lower court found the policies defective. Justice Gorsuch, joined by Justice Thomas, concurred in the stay, to take aim at universal injunctions (with citation to the work of Sam Bray and Michael Morley), properly defining them as injunctions protecting beyond parties rather than in geographic terms.

Unsurprisingly, I agree with Gorsuch's basic point against universal injunctions. I am not sure what it has to do with this case. Gorsuch would have granted this stay regardless of the injunction's scope. And I am sure he is waiting for the government to challenge a particularized Illinois injunction that (he acknowledges) remains in effect so he can stay that, as well.

Update: I wanted to come back to the question of whether the stay was proper. Given the make-up of the Court, it seems clear that, when the case comes to the Court on the merits, the majority will declare the policy valid. That aside, what about the stay? Where the district court granted an injunction, the question should be what will create more permanent and long-lasting chaos--staying the injunction (thus allowing enforcement of the underlying policy) or allowing the injunction to remain in effect (thus stopping enforcement of the underlying policy, allowing continuation of the primary conduct the regulation is designed to stop.

Today's order means the U.S. can deny status to certain people for the moment, although should the reg be declared invalid at the end of the day, those people could then reapply and be considered without the now-unlawful policy. Had the Court not stayed the injunction, people otherwise subject to the order could enter and/or gain status; if the order ultimately is declared valid, the government would have people in the U.S. or with status who otherwise should not have been permitted. It does not seem that the government could retroactively apply the regulation to remove presence or status already granted under the old rules. So as abhorrent as I find the policy, it seems a stay was appropriate. Where am I going wrong?

Posted by Howard Wasserman on January 27, 2020 at 01:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Although in theory people could "reapply and be considered without the now-unlawful policy," there are plenty of circumstances in which it is not so easy, and may in fact be impossible, because of the immigration laws and functioning of the immigration bureaucracy. Consider for example A, who is here in a non-immigrant status. A marries a US citizen, then files an application to become LPR. The injunction is stayed, and A can't meet the new public charge requirements, so A's application is denied. A is put into deportation proceedings. If A leaves the country during the pendency of deportation proceedings, or loses in deportation proceedings, A is barred from re-entry for 10 years.

After receiving a 10-year bar, A learns that the public charge rule is permanently enjoined. But now A faces either a decade outside the US, or applying for a (difficult to get) waiver, or re-starting life with the US citizen spouse in another country.

There are dozens of common situations that could make your contemplated trajectory—that someone "reapply and be considered without the now-unlawful policy"—illusory or risky in practice. I think that shifts the balance to some extent.

Posted by: Nathan | Jan 28, 2020 1:46:53 PM

Post a comment