National injunctions and "a spirit of defiance of judicial authority"

A "sternly put" judicial opinion on national injunctions and the APA

|The Volokh Conspiracy |

Another day, another national injunction. Last night the U.S. District Court for the District of Columbia issued a national injunction in Make the Road New York v. McAleenan. Josh Gerstein of Politico offers a summary here. The opinion is 126 pages, and I want to call attention to the 12 pages that discuss the question of whether the APA authorizes federal courts to issue national injunctions.

This is a difficult question, and the answer depends on what the interpreter emphasizes. If one emphasizes the state of the law when the APA was adopted, and its use of technical language like "set aside" that is not typically used for injunctions, the answer is no to national injunctions. Under current D.C. Circuit precedent, the answer is yes. As a constitutional matter, the answer depends on whether the interpreter thinks national injunctions are consistent with Article III. As a matter of policy, it depends on what weight one gives to the Mendoza decision and the policies implicated in the non-acquiescence debate in the 1980s. Then there is the little-considered issue of whether mandamus, rather than an injunction, is actually the best analogy from the judicial toolkit. And what makes the question even more difficult is that when the APA was enacted, Congress was designing a system of judicial review with the expectation that agencies would make policy predominantly through adjudication, not rulemaking. In short, this is a hard question. The two best analyses of it to date are by Ronald Cass, at pp. 56-61 of his Nationwide Injunctions' Governance Problems; and Ronald Levin, in his Regulatory Review piece on this question.

So what does the district court in Make the Road New York do with this difficult question? Here is some of the language the court uses to describe the government's position that the injunction should control only the relationship of the parties. I stress that these are not quotes from an imprudently intemperate brief filed by a party or amicus: these are quotes from the judicial opinion.

"Defendants' Argument That Any Injunction Can Only Restrict Agency Action As To These Plaintiffs Cannot Be Countenanced" (the heading on 107)

"the most peculiar argument that DHS has made in the rather long series of unpersuasive missives it has launched in opposition to Plaintiffs' motion for a preliminary injunction" (107)

"The strangeness of this position derives" (107)

"Even more troubling is the fact that DHS appears to be making this argument on principle" (107)

"federal courts countenance that effort at their peril" (108)

"In sum, and sternly put, the argument that an administrative agency should be permitted to side-step the required result of a fair-fought fight about well-established statutory constraints on agency action is a terrible proposal that is patently inconsistent with the dictates of the law. Additionally, it reeks of bad faith, demonstrates contempt for the authority that the Constitution's Framers have vested in the judicial branch, and, ultimately, deprives successful plaintiffs of the full measure of the remedy to which they are entitled." (108)

"In light of the unambiguous remedial requirements set forth in the APA, as unequivocally discussed by the D.C. Circuit in the National Mining Association case, it is hard for the Court to understand why DHS still insists" (111)

"the bizarreness of Defendants' unexplained suggestion that the required remedy for a procedurally invalid agency rule turns on whether the plaintiffs have 'invoke[d] associational standing' (Defs.' Opp'n at 75; see also PM Hr'g Tr. at 132:4–7) cannot be overstated" (111)

"a convoluted narrative" (111)

"the scope-of-remedy principle that is laid out in the APA and is echoed in the clear pronouncements of both the Supreme Court and the D.C. Circuit also reflects a common-sense understanding of what it means for a court to determine, at the conclusion of a case, that a formerly binding legal act of one of the parties is null and void" (112)

"It would be manifestly unreasonable for the agency to argue" (112)

"that peculiar argument" (112)

"Defendants' limited-injunction argument appears to reflect a spirit of defiance of judicial authority in the aftermath of defeat that is not easily reconciled with established constitutional norms or with standard, good faith practices that seek to ensure that a successful plaintiff is made whole." (116)

"DHS's contention that the agency should be deemed to have the unfettered ability to carry on with respect to pronounced unlawful behavior—in the wake of a ruling by a federal judge that the particular conduct at issue (i.e., enforcement of a procedurally invalid rule) violates a federal statute, and before the case has run its course through the courts of appeals—is quite troubling" (117)

"What is more, DHS makes the astonishing suggestion that the Court itself should declare that, after a plaintiff successfully establishes that an agency rule violates the law, the federal courts must stand impotently by while the agency acts in direct defiance of that court's legal determination by continuing to apply the invalid rule with respect to any person who is not the individual who filed the legal action that is before the Court" (117)

"quite frankly, untenable" (117)

"conflicts with core constitutional norms" (118)

Two thoughts. First, a wise judge once instructed his clerks never to use the word "clearly," because when a judicial opinion says "clearly" the proposition in question is usually not clear. So here, mutatis mutandis.

Second, I wonder what the court would make of the fact that the U.S. Supreme Court granted cert on this very question in Summers v. Earth Island Institute, 555 U.S. 488, 500–01 (2009). And that was before the national injunction fundamentally changed the relationship of the executive branch and the judicial branch.


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  1. I haven’t read the opinion, but if Prof. Bray’s selections are representative, that is very bad writing. Writing so dependent on caustic characterizations of one’s opponents usually rouses suspicion in an impartial reader, who suspects that no one is as manifestly unreasonable as is alleged here. There’s a place for such caustic writing, perhaps, in addresses to soldiers or rioting mobs, or such situations, but not in legal writing.

    1. Maybe in a Rule 11 motion for sanctions that’s actually meritorious.

  2. Everyone knows only judges in the Northern District of Texas are allowed to call a position “unreasonable.”

    1. Save the strawmen arguments for Sarcastro.

      1. It’s not a strawman. Bray’s selective quotation of a few word pairs from a 100+ page opinion on a preliminary injunction suggests the judge’s opinion was somehow inappropriately “intemperate.” Referring to an argument as “peculiar,” for example, is quite common in federal judicial opinions. See, e.g., Hall Street Assocs. v. Mattel, 552 U.S. 576 (2008); Baber v. Dunlap, 376 F.Supp.3d 125 (D. Me. 2018); Alltel Corp. v. FCC, 838 F.2d 551 (D.C. Cir. 1988). Indeed, the phrase “peculiar argument” appears in nearly 100 federal judicial opinions on Westlaw.

        Bray ignores the extensive discussion of case law that the opinion cites to highlight some adjectives. If, as the opinion suggests, the case is controlled by D.C. Circuit precedent, certain arguments are indeed “peculiar.”

  3. “In sum, and sternly put, the argument that an administrative agency should be permitted to side-step the required result of a fair-fought fight about well-established statutory constraints on agency action is a terrible proposal that is patently inconsistent with the dictates of the law. “


    The judge who wrote those words should be impeached for criminal assault on the English language.

  4. The “ruling” was by a black female Obama appointed “judge.” Not even worth spending the time writing your post.

    1. Thanks again to the Volokh Conspiracy for bringing unvarnished conservative thought to a broader audience.

      1. Replying to your alt account again?

        1. What are you talking about, you bigoted rube?

  5. A difficulty with the judge’s arguments is at the preliminary injunction stage there has been no actual funding that a law is unconstitutional. In order for there to be such a finding, there has to be process in which the party opposing the injunction is entitled to a fuller hearing.

    This basic fact fundamentally cuts against the basis of the judge’s arguments. What the judge said might have relevance to permanent injunctions made after a full finding on the merits, but it just doesn’t apply to preliminary injunctions.

    Moreover, it ignores the fact that several recent court of appeals decisions have narrowed the scope of previously nation-wide injunctions. A position supported by precedent simply cannot be treated as if it were frivolous, however much the judge disagrees with that precedent.

    The judge’s sentiments suggest is some danger of letting personal feelings on the subject compromise the duty of impartiality and deciding matters strictly on the merits. Treating a position with substantial precedent supporting it as if it were frivolous signals that one is oneself not bothering to read, or follow, the law.

    I agree that many (not all) of the Administration’s actions exceed their powers under the law. But the Judiciary has to be careful to act judiciously here. It can’t be perceived as acting in a partisan fashion.

    1. A difficulty with the judge’s arguments is at the preliminary injunction stage there has been no actual funding that a law is unconstitutional.

      Doesn’t this apply to any preliminary injunction?

  6. I really don’t understand what has become of the VC. Some of the more thoughtful authors have stopped posting or have left entirely, while we keep adding these hacks who (e.g.) hand-wave at a “hard question” before launching into a lazy tone argument.

    There’s nothing here about the quality of the opinion’s reasoning. Why should anyone bother reading this post, Samuel?

    1. I assume the point of the article was all this stern, confrontational, temerous phrasing was adding an undue gravitas to the quality of the reasoning.

      1. Samuel is trying to invite the inference that the opinion employs bad reasoning by highlighting its (in his view) injudicious rhetoric.

        It may or may not be a bad opinion. It may or may not matter that the rhetoric is over the top. All I really can guess at, from this stupid post, is that Samuel lacks the intellectual seriousness or respect for his audience to do anything more than to take potshots at an opinion he evidently doesn’t like.

    2. Tone doesn’t matter? That’s 75% of the basis for complaints about Trump, so it’s good to know that stuff can all be dismissed so easily.

      1. No, most of the complaints about Trump are about substance. It’s only his supporters who think it’s 75% about “tone” or being “un-PC” or whatever.

        Anyway, “tone” can matter, when it comes to furthering American interests in geopolitics. Waving off North Korean missile tests; equivocating on Hong Kong; blustering over Iran with no follow-through or concrete action; celebrating trade “deals” before the papers are even signed; and so on.

        1. Sort of; The complaints mostly at their core are, “Somebody other than our guy won, and that’s illegitimate!”, but the reason they care about somebody other than their guy winning, is that somebody other than their guy might advance other than their policy.

          I mean, the Democrats would still be ticked over Trump winning even if on a policy level he’d turned out to be a moderate Democrat. But they wouldn’t have been quite so livid. And the Republican establishment might even have been willing to retroactively invite Trump into the establishment if he’d pursued establishment policies.

          But he made enemies of both by running on things they wouldn’t do, and then having the cast iron gall to try to do them once in office.

          1. There are plenty of reasons to criticize Trump, from a number of different perspectives. But none of the nonsense you’ve farted out here is accurate.

            It’s certainly true that Democrats approve of neither Trump nor his policies, and his policies run afoul of Republican orthodoxy, as well. But even taken on his own terms, Trump’s “policies,” such as they are, are implemented poorly, pursued inconsistently, and undermined almost from the outset by a president focused more on winning news cycles than on “making America great again.” He has only diminished the U.S.’s status in the world and created messes that it will take at least one presidential term (once he’s gone) to fix.

            1. The government has always failed exactly as you are describing. You were just blind to it before because you believe news media propaganda.

              US Government has always been a bunch of self-interested, barely competent jerks.

              1. Why do you hate America, Ben? (Other than its rejection of bigotry . . . and its preferences for education over ignorance, reason over superstition, progress over backwardness, science over dogma, freedom over authoritarianism, etc.)

                1. Boring. I can’t believe you keep posting the same nonsense.

                  We learned long ago not to read the content-free name calling gobbledegook you write.

  7. If one emphasizes the state of the law when the APA was adopted, and its use of technical language like “set aside” that is not typically used for injunctions, the answer is no to national injunctions. Under current D.C. Circuit precedent, the answer is yes.

    I sincerely hope these are not the only justifications for both sides of the argument. If so, then the result should be obvious: national injunctions are not permitted under the APA.

    “We’ve been doing it wrong for a while” should not be a persuasive argument.

    1. Feel free to suggest an alternative for what it means to “set aside” agency action.

      Our common law system builds on precedent for a very good reason.

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