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Monday, July 13, 2020

Universal v. Nationwide, Again

The Ninth Circuit affirmed an injunction prohibiting enforcement of DOJ's sanctuary-city regulations as to California and the City and County of San Francisco. This comes after the Second Circuit denied rehearing en banc of a panel decision declaring the regulations valid. We now have a clear circuit split, although I imagine nothing will happen at SCOTUS if Biden wins and the regulations go away.

The Ninth Circuit did narrow the injunction to prohibit enforcement within California but nowhere else. It did so in terms that seem to contemplate the distinction between the injunction's who and where:

Plaintiffs here, a state and a municipality, “‘operate in a fashion that permits neat geographic boundaries.’” . . . Because Plaintiffs do not operate or suffer harm outside of their own borders, the geographical scope of an injunction can be neatly drawn to provide no more or less relief than what is necessary to redress Plaintiffs’ injuries. This is distinguishable from a case involving plaintiffs that operate and suffer harm in a number of jurisdictions, where the process of tailoring an injunction may be more complex.

The court distinguished a case involving asylum organizations that operate in California and other states, where an injunction limited to California would not address the harm from losing a client in Texas.

On the other hand, the court "acknowledge[d] the 'increasingly controversial' nature of nationwide injunction," a framing that confuses the point. There should be nothing controversial about nationwide injunctions, which the court faced here--injunctions that protect the plaintiffs wherever they operate. The controversy is over universal injunctions--injunctions that attempt to protect beyond the plaintiffs. Still, we are slowly getting there.

Posted by Howard Wasserman on July 13, 2020 at 03:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Just as illustration to the rational of the fourth amendment mentioned by me, I quote the Supreme court, in:

Mapp v. Ohio, here:

" Only last year the Court itself recognized that the purpose of the exclusionary rule 'is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.'"



Posted by: El roam | Jul 13, 2020 7:17:04 PM

Interesting one. Yet, in that case, the district court, concluded clearly, that, I quote:

" The district court invalidated the Access and Notice Conditions on multiple grounds, holding that they exceed DOJ’s statutory authority, violate constitutional separation of powers, violate the Spending Clause, and are arbitrary and capricious under the APA."

End of quotation:

So, even if the circuit is right to claim no concrete harm beyond the geographical boundaries of California, yet, that was arbitrary and capricious under the APA indeed ( the circuit, agreed effectively). So, why one may wonder, to limit it ? This is very bad outcome legally. It does educate the federal government, that they can engage in " fishing expedition " generate arbitrary and capricious outcomes, and, like sort of shopping tour, they may fish somewhere in other jurisdiction, the right result, despite bad faith in their conduct or action.

Reminds me, the fourth amendment rational of suppressing evidence, illegally obtained:

Among others, because, if would become admissible, that is bad education or example, for police officers, that they can get in illegal and abusive manner evidences, and the court shall redeem them, over and over, and they shall stick to it over and over.

The message should be clear:

Be fair, think twice, construct it legally, don't mess up in bad faith all around.


Posted by: El roam | Jul 13, 2020 6:48:45 PM

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