Types of injunctions

A point to elaborate on following the argument and a lot of commentary (including from Nick Bagley in The Atlantic) on the birthright-citizenship case: I still do not believe everyone agrees or understands what we are talking about.

Bagley's summary of the states' argument tees this up. The states (via the NJ SG, former Kagan clerk Jeremy Feigenbaum, who did an excellent job) argued they needed an injunction prohibiting all enforcement as to all people everywhere because people move and New Jersey would have trouble administering programs not knowing whether or when a person is a citizen. This echoes Texas' argument as to DACA--"people move into the state and we would be forced to expend money to give them licenses and other state benefits if the could get status outside of Texas." Bagley points out that, as framed, this is not a universal injunction; it is a broad party-protective injunction.The plaintiff needs that breadth (it argues) to obtain complete relief. By contrast, Bagley argues, a  true universal injunction is one that is "not necessary to provide complete relief to the plaintiffs, but [is] needed to protect non-plaintiffs."

I think we can identify four types of orders four types of orders

1) A party-protective injunction that is no broader than necessary to accord complete relief to the plaintiff--it stops the government from doing X to the plaintiffs.

2) A party-protective injunction injunction that incidentally protects non-parties because it is impossible to protect parties without protecting non-parties. This is the polluting factory, raw-sewage in prison, and legislative districts--ordering the state to create a valid legislative district places every person who lives there the benefits of a valid legislative district. It is not (contrary to what SG Sauer argued at pp. 14-15) school desegregation; schools could remedy the harm to one plaintiff by ordering the school to admit him (but only him) to an otherwise-white school. David Marcus has shown that the 1966 amendments to FRCP 23(b)(2) responded, in part, to courts narrowing the remedies; class actions demanded a broader remedy in which all members be admitted, thus requiring integration.

3) An injunction that protects non-parties because that extra protection is necessary to accord complete relief. This is where New Jersey believes it sits, as Bagley describes.

So # 2 arises when it is logically or practically possible to give the plaintiff relief that does not accord relief to everyone else. That injunction is still non-universal, however, because the incidentally benefited non-parties cannot enforce the injunction (by presenting non-compliance to the court or by seeking contempt). # 3 arises when it would be possible to split the parties from non-parties; the plaintiff then must show that the more-limited remedy does not accord complete relief and that it only gets complete relief with the broader injunction (placing it in the functional position as # 1).

4) An injunction expressly protecting (without actual or purported class consideration) parties and everyone similarly situated, where the defendant's action is not indivisible (# 2) and relief to non-parties is not necessary to remedy the parties. (# 3). That is, the arguments for non-party protection are grounded in considerations of fairness, equality, and uniformity--it is unfair, unequal, and disuniform to to give the benefits to parties and not to similarly situated non-parties.*

[*] Although, as Sam Bray pointed out, they are not similarly situated--one person got an injunction and the other did not.

This covers marriage equality; it covers efforts to strip sanctuary cities or universities of funds. And it should cover individual (as opposed to state) challenges to the birthright-citizenship EO--an injunction guaranteeing U.S.-born X's citizenship gives X complete relief, even if Y's citizenship remains in doubt. Only equality and uniformity concerns (U.S.-born X is a citizen but U.S.-born Y is not) push against that conclusion.

We will see if the Court can keep these straight when it decides the case.