A Tale of Two District Courts

A new phase for the national injunction?

|The Volokh Conspiracy |

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.

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  1. Does a party have to obey an out-of-district ruling that contravenes a decision made by the courts with jurisdiction over the district with respect to its conduct in that district?

    1. Interesting question. I hope EV and/or other law profs chime in with an answer.

    2. I’m not entirely clear what you’re asking. If I am a defendant in a case and I’m enjoined to do X and to refrain from doing Y, I am required to do X and refrain from Y full stop. Well, almost full stop, but the exceptions and quibbles don’t relate to any intra-U.S. geographic limit on where in the U.S. a valid injunction may order that I must do X or refrain from Y. Whether an “out-of-district” court should issue an injunction against me in the first place may depend on whether it has personal jurisdiction over me and whether venue is proper. Personal jurisdiction isn’t usually an issue in these cases. I have commented elsewhere on this site on how judge shopping for national injunctions has been in some cases facilitated by lower courts having adopted an erroneously broad reading of the venue statute. But the government usually waives any venue defense, venue would often be proper even under the correct (i.e. my) reading of the venue statute, and even if the defense was raised and wrongly rejected, that gives the government a basis for appeal but not a basis to ignore the injunction in the meantime outside the district.

      The second half of your question is the part I don’t fully understand in part because the district courts have “jurisdiction” over certain disputes and parties but not “over a district” in some sovereign sense. Where activities or actions took place might matter to whether a district court has jurisdiction but it’s not a one-to-one mapping by any means. But, put that quibble aside. Suppose a district court in California enjoins me to do X and refrain from Y. And suppose that there is a precedent (if that’s what you mean be “ruling”) from which I can confidently predict that a district court in Iowa would not enjoin me. Can I ignore the injunction in Iowa? No. What if the Iowa precedent is that I must do Y and may not do X? Still no. Now, suppose I am an actual party in Iowa in which someone seeks to enjoin me to do X and refrain from Y and the injunction is denied. May I ignore the California injunction in Iowa? Still no.

      OK, if I am a party in a case in Iowa and the Iowa court orders me not to do X and affirmatively to do Y, now we have a problem where maybe the answer is less clear. This is addressed, though not resolved, a little bit in the comments below.

      But in addition, I would add (what others have also noted) that the central problem with “national” injunctions often doesn’t have to do with how big the WHERE they apply is but to how big the WHO they apply to is. So, if the California injunction only applies, like a regular injunction, to the plaintiffs in California, and if the opposing injunction in Iowa only applies to a different set of plaintiffs, I can comply with the California injunction with respect to the California plaintiffs in California and Iowa and everywhere else and I can comply with the 180 degree opposite Iowa injunction in Iowa and California and everywhere else. But with some national injunctions that isn’t possible. In some cases, it is because courts are sloppy (at least as defendants would like to define sloppy) in granting injunctions that give relief to people not before the court. In other cases, X might be something the government can either do or not do as to everyone. For example, if the issue is whether the Corps of Engineers does or does not open the floodgates, and the upstream and downstream landowners get opposing injunctions in different districts, the gates can’t be opened for one set of plaintiffs and left closed for the others.

  2. I expect national injunctions to continue unfettered just long enough to prevent the current administration from doing what voters voted for.

    As soon as national injunctions become a problem for a leftist administration, they will be curtailed one way or another.

    The ends will be used to justify the means each time.

    1. IIRC, the majority of the voters did not vote for the current President.

      1. Irrelevant and non-responsive. Try again.

      2. Wrong. The election was 304 votes for our HEROIC AND NOBLE PRESIDENT DONALD J. TRUMP, and 227 for the horrifically corrupt and evil Clinton.

        1. Chem, that’s piss poor trolling. So bad, that the only thing actually wrong about it, is ALL CAPS for Trump give you away (though the descriptor “noble” is still somewhat questionable). It is objectively true that there was 304 *electoral votes* for Trump and that Clinton is corrupt and at least subjectively true that lacking a better descriptor, that she is evil.

          1. Give me away? What are you talking about? I all-caps “HEROIC AND NOBLE PRESIDENT DONALD J. TRUMP” just to irritate his enemies and detractors. If I could have it in 144-point type, I would.

      3. A majority of the States, which make up the United States of America, did vote for the current President.
        A majority of the counties, which make up the States, did vote for the current President.

        IAW the Constitution, the majority of electors did vote for the current President.

        1. IIRC, about 150% of Hillary’s popular vote lead, (Also a minority of the voters, mind.) came from California.

      4. Let me know what the numbers are if you exclude the votes of people admitted under the 1965 Immigration and Nationality Act and their descendants.

      5. Many elections are decided by smaller than a majority. Majority isn’t part of the decision criteria.

        Courts weren’t elected by any votes at all.

      6. A majority of voters didn’t vote for Hillary either, both candidates were under 50%.

      7. “the majority of the voters did not vote for the current President.”

        And the top two leftists running for President didn’t clear a 50% majority either, combined.

    2. And this is the problem with squishy “conservatives” like Roberts being on the Supreme Court. They’d prefer to “follow precedent,” and “let issues percolate,” even if it means the proper functioning of the government is disrupted.

    3. One of the check boxes for justifying a national injunction is likelihood of ultimate success in the higher courts. That seems to be wishful thinking, for better or worse.

  3. You might say a bit more about why you think it is a good idea that federal law varies with where one is. It is a view with a surface oddity, and we know from the Reagan presidency that it increases litigation.

    1. That’s actually fairly straightforward: The executive and legislative branches’ decisions are nation-wide, because the whole country has one of each.

      The circuit courts’ decisions should be local, because there are multiple circuit courts.

      This leads to court shopping.

      It leads to cases where one circuit says something is ok, and another circuit prohibits it even in the first circuit’s jurisdiction. Although they’re theoretically co-equal, one prevails.

      And, it hasn’t happened yet, but you could conceivably get a situation where one circuit enjoins something, and a different circuit mandates it, nation wide. And then what do you do?

      1. More importantly, especially in regards to district courts, it undermines democracy.

        A single unelected judge (of which there are 673 district court judgeships) can overrule, nationwide, the actions of the elected president and his administration. And if one doesn’t choose for you, you can pick another and do it again.

        1. But Trump is a racist, and we need 50 million more low IQ, impoverished Central Americans, so the ends justify the means. Stop hating diversity.

      2. “The executive and legislative branches’ decisions are nation-wide, because the whole country has one of each.”

        We have only one federal judiciary branch too.

        1. Yeah, and that’s why Supreme Court rulings are nation-wide.

          But the judiciary are organized in circuits with local jurisdiction, which is why this sort of tactic was quite rare until Trump took office.

          It’s just more TrumpLaw at this point.

          1. “It’s just more TrumpLaw at this point.”

            Apparently we were electing 9th circuit judges President in 2016.

          2. Brett, assuming everything you say is true, and normatively better, it still isn’t TrumpLaw. It is, and will be for the foreseeable future, McConnell Law. That is the guy who put the Republican trademark on anti-normative, opportunistic judicial behavior. Now your side owns it.

            Probably before too long, Democrats will assemble sufficient political power to dismantle that Republican practice, and cancel its effects. It will be wise, when that happens, for everyone to get in line behind substantive judicial reform, as an alternative, to prevent Democratic over-reach from simply turning the tables.

            It would be wiser still to begin now, by condemning McConnell’s opportunism, instead of applauding and normalizing it. Do that and you might have some hope of persuading Democrats toward forbearance, instead of goading them toward revenge.

            1. “That is the guy who put the ———— trademark on anti-normative, opportunistic judicial behavior.”

              Might want to take a look at any history of Franklin Roosevelt’s administration.

            2. Wait, you’re saying McConnell is responsible for judges suddenly deciding to issue nation-wide injunctions out of district courts? McConnell?

              What, the judges themselves don’t have any agency, the just dance on his strings?

            3. “It is, and will be for the foreseeable future, McConnell Law. That is the guy who put the Republican trademark on anti-normative, opportunistic judicial behavior. Now your side owns it.”

              Bullshit. McConnell is not a judge. McConnell is a politician. Politicians and judges play very different roles in our political and legal systems. Judges who use McConnell’s actions to justify their own were not fit to be judges in the first place. People who use McConnell’s actions to justify judicial actions demonstrate a profound confusion about the nature and structure of the American political system.

              Your also wrong that there was something particularly nefarious about McConnell’s actions during the Garland nomination. Sure it was a political move, but it was made by a politician and it was merely the next ratchet up in a process that both sides have been making extremely political for many years. And it almost certainly won’t be the last ratchet up.

            4. “Brett, assuming everything you say is true, and normatively better, it still isn’t TrumpLaw. It is, and will be for the foreseeable future, McConnell Law. That is the guy who put the Republican trademark on anti-normative, opportunistic judicial behavior. Now your side owns it.”

              Because only Leftist judicial tactics are normal, everything the right does is considered ‘anti-normative’

              The fake narratives spread about Kavanaugh and Thomas and the removal of the filibuster over federal court appointees…..according to Lathroplaw, these are ‘normative’.

              You are not a serious commentator.

          3. “which is why this sort of tactic was quite rare until Trump took office.”

            Quite rare indeed. In fact, if I remember it correctly, they were unheard of until Obama took office. As with all the other “features” of our political systems, once one side comes up with a terrible idea (and they are very good at coming up with terrible ideas) the other side is obligated to ratchet it up when they have the ability to do so.

            1. Nationwide injunctions predate the Obama era by several decades. See, for example, Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994).

              1. It looks like I misremembred. I knew I should have said “virtually” unheard of.

                After a brief skim, that case isn’t exactly a ringing endorsement for the frequent use of nationwide injunctions outside of very specific contexts.

        2. We have one court that is in the Constitution, SCOTUS. All other federal courts derive from legislation by Congress and signed into law by the President. They have authority over their district for District Courts and region for Appellate Courts; only SCOTUS has Constitutional authority for the USA.

      3. “And, it hasn’t happened yet, but you could conceivably get a situation where one circuit enjoins something, and a different circuit mandates it, nation wide. And then what do you do?”

        Something fairly close to this happened in connection with the government’s calculation of premiums coal companies had to pay into a trust for retirees’ (and retirees’ beneficiaries’) health care. The coal companies thought the premium was set too high, sued in an Alabama district court, and got that court and the 11th Circuit to agree. The government lowered the premiums. The trustees sued in DC to raise the premiums back to the level originally set by the government and won in both the district and circuit courts. The government set the premiums back to the original level except in 11th Circuit states. Whereupon the trustees sued again in DC, the coal companies sued again in Alabama, and both cases got transferred to a district court in Maryland, with the 4th Circuit ultimately breaking the tie (going with the 11th on the merits). The 4th Circuit case sets forth some of this history, A.T. v. Holland, 472 F.3d 148; the D.C. Circuit decision, Holland v. National Mining Ass’n, 309 F.3d 808, is probably a more interesting read on conflicting judgments against the government in different federal jurisdictions.

        Do not get me started either on why the district court in the first, Alabama, case blew off the government’s Rule 19 arguments that the trustees were necessary parties who the companies should have joined or on the government’s decision not to appeal that point.

  4. It does nothing to democracy, any more than having the entire executive undermines democracy. As already noted departmentalism was relied under Reagan, resulting in federal law — of which one would think one would be enough — varied from place to place.

  5. The judge in California is an Obama appointee. Time for Trump to just start ignoring Obama judges. They made the rulings, now let them enforce it.

    1. Hush, you will make John Roberts very sad.

      1. Roberts is the type of loser who would rather die than upset the current “order.” In his mind, the Constitution is indeed a suicide pact.

        1. Not everyone sees the crisis as a crisis.

          1. Yeah, well, they’re just stupid and blind at this point. They won’t see the crisis as a crisis until the moment they’re being marched into the showers.

    2. The way I read the article (haven’t read the links), the judge in DC issued a national injunction prohibiting enforcement of Trump’s rule, while the judge in CA didn’t.

  6. Didn’t Clarence Thomas recently issue a ruling that included a scathing criticism of these national injunctions? Why doesn’t SCOTUS rule on their legality?

    1. Well, you’ve got at least 4 Justices all in favor of them so long as they’re hobbling Trump.

      Maybe 5?

  7. The DC district court and then DC circuit is the obvious choice to have exclusive jurisdiction over facial challenges to either statutes or executive orders. Ends forum shopping and makes it easier for the government to defend the case.

    1. Actually, the obvious choice for that would be the Federal Circuit, whose existing jurisdiction is based on subject matter rather than geography.

      1. ok, but doesn’t solve the forum shopping for District Court problem.

        Fun fact, the Federal Circuit has an active judge born in 1927 and appointed by Reagan. Not on senior status but a full docket and older than al the senior judges.

        1. In a way it does solve it indirectly. For issues that fall in the Federal Circuit’s jurisdiction, all district courts nation wide are bound by Federal Circuit precedent.

          The way it looks to me, the differences in this case between the district courts in DC and California stem not from the district courts themselves, but from differing precedent between the DC and 9th circuits.

          1. 1. You are correct about why each court could legitimately come to different legal conclusions.
            2. On the other hand; I’m less sure about this being a good reason to have one nationwide injunction trumping an opposite holding from a different jx.
            3. On the other other hand; it does give the nation more uniformity in federal law, which is almost always a good thing, IMO. (I think it’s great that state laws vary, so I can go to Texas for more gun rights if I want, to California if I want more abortion rights, etc etc.)

  8. The obvious next step is to get a Judge in Texas to grant an injunction against NOT enforcing the rule. Maybe add an injunction against the 9th Circuit prevent them from enforcing their injunction against the rule.

    That’ll get the Supremes involved quickly.

    1. I’ll admit I had to read that twice.

      Great comment.

    2. Federal judges adjoining state judges, any real reason [other than comity] they can’t enjoin eash other?

  9. Have we ever had conflicting national injunctions?

    If so, what happens?

  10. Reading through the story I see that Haider is a transfer woman who had not received sexual reassignment surgery at the times Shuman became pregnant. I wonder if a paternity would show that Haider is the biological “father” of the child purportedly fathered by Hay (of of any of Shuman’s other children. Has Haider had the sexual reassignment surgery yet?

  11. “Trans” not “transfer.” Damn you autocorrect.

    1. I don’t think autocorrect is your biggest problem here.

  12. Can my district court force the ninth to recognize my concealed carry permit?

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