The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday a panel of the Seventh Circuit upheld a national injunction in the Chicago sanctuary city case, Chicago v. Sessions. The decision has already been discussed in posts by my co-bloggers Jonathan Adler and Ilya Somin.
For the majority, national injunctions should be "rare" (p. 30). A judge deciding whether to give one should "weigh the appropriate factors while remaining cognizant of the hazards of forum shopping and duplicative lawsuits" (p. 30). The difficult question, for those who think national injunctions are permissible, is always about limiting principles–what, in the Seventh Circuit's words, are "the appropriate factors" and how do they get weighed against "the hazards"? Oddly, after framing this as a matter of balancing, the court led with a categorical distinction.
On one side there are situations in which "different factual scenarios will better inform the legal principle" (p. 31). National injunctions would (the court implied) be inappropriate in those situations. That, we might say, is the domain of percolation. On the other side there are situations that call for "a determination as to the plain meaning of a sentence in a statute" (p. 31), situations that involve "purely a narrow issue of law" (p. 30). In this class of cases we are not concerned with percolation and national injunctions are appropriate. The court treated this case as belonging in the latter class.
That was in essence the court's limiting principle. It tried to add a bit more. It appealed to the balance of equities, but that can't support a national injunction: the district court found the balance of equities favored neither side, and the balance of equities is focused on the parties themselves, not third parties. The court also invoked the public interest, which it said "would be ill-served here by requiring simultaneous litigation of this narrow question of law in countless jurisdictions" (p. 33). That too, doesn't support a national injunction: again the district court found that this consideration favored neither side, and the court's public interest argument collapses into the legal/factual distinction. And the court's notion that one judge can decide to dispense with "simultaneous litigation . . . in countless jurisdictions" is at odds with a common law system, where the judicial power is used to resolve cases brought by parties. And we do have exceptions that allow broader litigation–class actions and MDLs–but why do we have them if one judge can make this call to avoid "simultaneous litigation" as a matter of policy? Finally, the court threw in an argument about "the structure of the Byrne JAG program itself," which involved some ill-defined "ripple effect" on other recipients.
The main innovation in the Seventh Circuit decision, then, is a strong law/fact distinction. For questions of law, we have national injunctions (or at least they are an appropriate choice for the district court). For questions of fact, or more precisely questions in which factual settings shape the legal rule–the court's examples are "reasonableness of searches" and "the excessiveness of force" (p. 31)–we should eschew national injunctions in favor of percolation.
Judge Manion concurred in the judgment as to the city of Chicago but dissented from the part of the judgment upholding the national injunction. The key point of dispute was over the majority's main limiting principle. Judge Manion responded with United States v. Mendoza, which rejected nonmutual offensive collateral estoppel against the government because it would "substantially thwart the development of important questions of law" (quoted at pp. 42-43 of Judge Manion's opinion).
At this point Judge Manion made the argument that the majority's limiting principle was in effect no limit at all:
"if a lack of factual differentiation is all that is needed to distinguish Mendoza, then a nationwide injunction is appropriate in every statutory-interpretation case. That cannot be the law. If anything, the opposite is true. Different parties litigating the same issues in different forums will likely engage different arguments, leading to diverse analyses and enhancing the likelihood of the strongest arguments coming to the fore. Courts faced with difficult statutory questions are the ones who benefit the most from the existence of multiple well-reasoned decisions from which to draw" (p. 43).
Judge Manion made other points, including that "[r]equiring a class action has the benefit of dealing with the one-way-ratchet nature of the nationwide injunction" (p. 46), and that there are cases where the injunction seems to go broader than the parties but really "the relief to non-parties could be called a side-effect of the relief given to the plaintiffs" (p. 47). He also criticized the majority's arguments about the balance of hardships, public interest, and the structure of the program. He also conceded that the national injunction was appropriate in Trump v. IRAP (cf. pp. 47 and 48). That concession was entirely unnecessary, however, given Judge Manion's other arguments, especially about class actions and the possibility that an injunction directed solely at the conduct of the parties may have "a side-effect" on non-parties.
The judges also disagreed about the implication of the Supreme Court's decision in Trump v. IRAP to narrow the preliminary injunction but not to stay it as to all non-parties. For the Seventh Circuit majority, the key implication was that the Supreme Court had rejected all of the arguments that national injunctions were categorically unavailable (pp. 26-28). By contrast, Judge Manion emphasized that the Supreme Court had not "directly address[ed] the merits of why the injunction should be nationwide" (p. 48).
Judge Manion is correct that the Supreme Court did not address the merits of the national injunction, even though it clearly recognizes that this is a major question–one that it granted certiorari on in Summers v. Earth Island Institute and that it has now granted certiorari on again in Trump v. Hawaii. Indeed, the grant of certiorari on this question in Trump v. Hawaii shows that the justices themselves do not think that they decided the permissibility of national injunctions when they refused to narrow the injunction further.
And one more thing about how to read Trump v. IRAP: there is a deep problem with conventional standards for preliminary injunctions and stays of injunctions, because they force the justices to decide before they decide–to tip their hand, with all of the psychological effects that come from taking a public position on likelihood of success on the merits. That is probably why the justices have recently sometimes just ignored the likelihood of success on the merits element. It would therefore be a regressive move, a move toward heightening the precedential stakes of interlocutory decisions, to read Trump v. IRAP as deciding the national injunction question. Perhaps if there were a string of cases where the Court was asked to narrow national injunctions and refused to do so, those actions would be precedential; they might recognize a certain state of affairs as being "the law." But given the unusual posture of a motion to stay a preliminary injunction, and the abundant practical reasons not to force the Court to prematurely decide a major question about injunction practice on such a motion, we should not consider its "non-stay" a decision about the merits.
At bottom the majority and the dissent in the Seventh Circuit offer competing visions of the judicial power and the scope of a case. Behind the majority's decision lies a conception of the judicial power that emphasizes efficiency. There is a problem: duplicative cases. There is a solution: national injunctions. Behind the dissenting opinion lies a quite different idea that is about the power of courts, but also the duty of courts, to decide cases. We could overstate the point slightly by saying there are no duplicative cases. Even if they both involve the same legal question, your case is your case and my case is my case.
The majority and the dissent also offer competing attitudes about judicial epistemology. The majority offers confidence; its opinion embraces judicial certitude. The dissent offers a position in which many minds considering a question–even a legal question–is a good thing. This is the judicial spirit "which is not too sure that it is right."