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Monday, January 11, 2021

Universal universality (Updated)

The Fourth Circuit affirmed a universal injunction (mistakenly styled nationwide) prohibiting enforcement of the federal policy requiring state and local affirmative consent to accept refugees. The injunction protected six non-party resettlement agencies, in addition to the three plaintiffs.

In affirming as to scope, the court relied on Trump v. IRAP (the pre-Hawaii order that stayed various parts of the travel-ban injunctions) for the proposition that "a nationwide injunction may be appropriate when the government relies on a 'categorical policy,' and when the facts would not require different relief for others similarly situated to the plaintiff." This policy "by its nature" affects all immigrants assigned to all agencies operating throughout the country and a particularized injunction would produce "inequitable treatment of refugees and undermine the very national consistency that the Refugee Act is designed to protect."

One problem with the "universality only in certain cases where appropriate" is that any standards for determining when universality is appropriate collapse to allowing it in every case. This captures that. All policies are categorical and all policies by their nature affect all persons subject to those policies. All policies apply the same to similarly situated non-parties--that is what makes them similarly situated and also what would allow them to form a 23(b)(2) class, which the plaintiffs chose not to do here. Moreover, "inequitable treatment" follows in all cases in which a party obtains a non-class injunction--those who obtained the injunction enjoy a legal protection that those who did not obtain the injunction do not enjoy. That is the point and effect of obtaining an injunction.

If that is the standard, every injunction must be universal.

Update: Sam Bray reaches the same conclusion.

Posted by Howard Wasserman on January 11, 2021 at 11:19 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink


Interesting case. Even if it would be justified in every case, then, that is what the court should do. For, in every case, is rather technical and formal argument. Not substantial one with all due respect.

In that case, we have federal policy, designed or implemented by issuance of executive order and notice. But, it does federally so, nationwide so, violates clear provisions and intent of the Congress.

I quote:

" When Congress has included statement of purpose in a statute, we read the terms of the statute consistent with its expressed purpose"

And further:

" Thus, on its face, the consent requirement in the Order is inconsistent with the ordinary meaning of
the term “consultation” as expressed in the Act."

" Thus, the Order’s consent requirement does not implement, but effectively overrides, the Act’s directive that resettlement decisions be made by the Secretary based on an exchange of information among all interested parties."

And finally:

"This license to ignore the statutory criteria plainly is at odds with the careful sequencing process established by Congress."

End of quotation:

Clearly violating the act and the intent of the Congress. So, it can't be implied no way and no where. It can't be otherwise then, but nationwide one.

To the ruling by the way:



Posted by: El roam | Jan 11, 2021 1:14:26 PM

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