The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, two federal district courts decided cases involving a challenge to the administration's joint interim final rule called "Asylum Eligibility and Procedural Modifications." In the words of one of those district courts, "The effect of the Rule is to categorically deny asylum to almost anyone entering the United States at the southern border if he or she did not first apply for asylum in Mexico or another third country." Setting aside the merits of the policy, and the merits of the challenges as a matter of immigration law, I am struck by two things.
First, one court–the U.S. District for the District of Columbia–declined to enjoin the enforcement of the rule. And one court did enjoin the enforcement of the rule–the U.S. District Court for the Northern District of California. And only one of those decisions counts. This is the new world of the national injunction: a loss for the government is a loss for the government, and a win for the government is meaningless. As long as the challengers can find one district court to issue a national injunction, it does not matter what other courts decide. (As always, the point holds no matter whether we are talking about the Obama administration, the Trump administration, or the Warren administration.)
Second, we have now reached a phase where some district courts see no need to even try to justify a national injunction. There was some hope that district courts would begin to take more seriously at least the policy problems with national injunctions (let alone the Article III problems). Even supporters of the national injunction, such as Professor Amanda Frost, called for a searching inquiry in each case into the merits and demerits of a national injunction. But the latest national injunction decision has the following paragraph as the entirety of its analysis:
The government's arguments against a nationwide injunction travel well-trod ground. ECF No. 28 at 33-34. But the Ninth Circuit has "consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis." E. Bay II, 909 F.3d. at 1255 (collecting cases). While the government disagrees with that ruling, it provides no contrary authority from the immigration context and "no grounds on which to distinguish this case from [the Ninth Circuit's] uncontroverted line of precedent." Id. at 1256.
That paragraph is on page 45 of a 45-page opinion.
The case for review by the Supreme Court of this practice is growing by the day. Five years ago, national injunctions were relatively marginal, at least outside the APA context, and even there they were controversial (witness the questions presented in Earth Island Institute). Now they are the dominant mode of interaction between the judicial branch and the executive branch.