A Broad Ruling Against Trump's Immigration Policies Illustrates Alternatives to Universal Injunctions
Class actions and Administrative Procedure Act claims can achieve much the same result as the nationwide orders that the Supreme Court rejected.
Last Friday in Trump v. CASA, the Supreme Court concluded that federal judges do not have the power to grant "universal injunctions" against executive actions or federal legislation. Rather, it said, any "equitable remedies" in such cases must be limited to the named plaintiffs.
On Wednesday, a federal judge in Washington, D.C., nevertheless issued an order broadly precluding federal officials from implementing the asylum restrictions and streamlined deportation procedures that resulted from a proclamation that President Donald Trump issued on his first day in office. That decision in RAICES v. Noem illustrates two alternatives to universal injunctions that can have much the same effect.
Unlike the Judiciary Act of 1789, the source of judicial authority that the Supreme Court construed last week in Trump v. CASA, the Administrative Procedure Act (APA) explicitly requires federal courts to "set aside" agency actions when they are "arbitrary," "capricious," "an abuse of discretion," or otherwise contrary to law. The plaintiffs in RAICES v. Noem—13 individuals and three nonprofit organizations—argued that the immigration policies implemented under Trump's January 20 proclamation violated the APA.
U.S. District Judge Randolph Moss agreed and therefore "set aside" the agency guidance documents that were issued in response to Trump's proclamation. Quoting Justice Brett Kavanaugh, Moss noted "countless" decisions in which the Supreme Court and the U.S. Court of Appeals for the D.C. Circuit, complying with the APA's command, have "vacated agency actions…rather than merely providing injunctive relief that enjoined enforcement of the rules against the specific plaintiffs."
The plaintiffs in RAICES v. Noem, who argued that the new restrictions and procedures exceeded the president's statutory and constitutional authority, also asked Moss to certify a class of similarly situated individuals affected by the proclamation. He did that too, issuing an injunction that bars Trump's underlings from "implementing" the proclamation against "all individuals who are or will be" subject to it and "who are now or will be present in the United States." He left for another day the question of relief for people who already have been deported as a result of the proclamation.
Moss concluded that the injunction was appropriate and necessary because federal officials had indicated they would continue enforcing the new immigration policies based on Trump's proclamation even if the guidance documents were vacated. The upshot is essentially the same as what would have happened under a universal injunction of the sort that the Supreme Court just said federal courts are not authorized to issue.
Trump's proclamation, which described the "ongoing influx of illegal aliens across the southern border" as an "invasion" requiring a presidential response, included five operative sections. The first section invoked 8 USC 1182(f), which empowers the president to "suspend the entry of all aliens or any class of aliens" when he "finds" that their entry "would be detrimental to the interests of the United States," and 8 USC 1185(a), which makes it illegal to enter the United States "except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe." Based on that authority, Trump "suspended" the entry of aliens "engaged in the invasion across the southern border."
On its face, that "suspension of entry" was redundant, since it applied only to migrants who already were legally barred from entering the United States. But the second section, which also invoked Section 1182(f) and Section 1185(a), went beyond the status quo by declaring that those "illegal aliens" would be "restricted from invoking" provisions of the Immigration and Nationality Act (INA) that "would permit their continued presence in the United States," including the asylum process described in 8 USC 1158.
Under that law, "any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum." To receive asylum, the alien must qualify as a "refugee," meaning he is "unable or unwilling" to return to his country because he has "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."
U.S. Border Patrol (USBP) guidance made it clear what Trump meant when he said unauthorized immigrants would be "restricted from invoking" that law. The email said "aliens invading the United States"—i.e., the people covered by Trump's proclamation—"are not permitted to apply for asylum" (emphasis in the original). That policy, Moss concluded, was blatantly at odds with the INA's asylum provisions.
The third section of Trump's proclamation, again relying on Section 1182(f) and Section 1185(a), barred the entry of "any alien who fails, before entering the United States, to provide Federal officials with sufficient medical information and reliable criminal history and background information" to show that he meets the INA's requirements. A USBP email clarified that migrants in that category "are restricted from invoking provisions of the INA, including asylum, that would permit their continued presence" (emphasis in the original). That policy, Moss concluded, likewise was inconsistent with the INA.
The fourth section of the proclamation invoked Trump's authority under Article II of the Constitution, including his "control over foreign affairs," and Article IV, Section 4, which says the federal government "shall protect" the states "against invasion." Based on that authority, Trump instructed the secretary of homeland security, the secretary of state, and the attorney general to "take appropriate actions as may be necessary to achieve the objectives of this proclamation, until I issue a finding that the invasion at the southern border has ceased."
The fifth section instructed the same officials to "take all appropriate action to repel, repatriate, or remove any alien engaged in the invasion across the southern border." That directive resulted in new, less protective removal procedures, which Moss concluded violated the INA.
Consistent with Trump's suspension of asylum, the new procedures no longer required that migrants be informed about the availability of that process. They also would no longer be asked direct questions about fear of torture, another potential way to avoid deportation. And they would no longer be allowed to seek "withholding of removal," a more limited form of relief that bars returning a migrant to his country when "the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion."
In effect, Moss noted, the proclamation "prevents anyone who crosses the southern border of the United States at any place other than a designated port of entry, as well as
anyone who enters anywhere else (including at a designated port of entry) without a visa or without extensive medical information, criminal history records, and other background records, from applying for asylum or withholding of removal." He rejected the government's argument that the president's authority to suspend or regulate entry into the United States could be stretched to cover the treatment of migrants who are already here, including the availability of options to avoid deportation and the procedures required for removal. To the contrary, he concluded, the Trump administration's deviations from past practice, existing regulations, and the INA's requirements were unlawful:
Neither the INA nor the Constitution grants the President or the Agency Defendants authority to replace the comprehensive rules and procedures set forth in the INA and the governing regulations with an extra-statutory, extraregulatory regime for repatriating or removing individuals from the United States, without an opportunity to apply for asylum or withholding of removal and without complying with the regulations governing [Convention Against Torture] protection. The Court recognizes that the Executive Branch faces enormous challenges in preventing and deterring unlawful entry into the United States and in adjudicating the overwhelming backlog of asylum claims of those who have entered the country. But the INA, by its terms, provides the sole and exclusive means for removing people already present in the country, and, as the Department of Justice correctly concluded less than nine months ago, neither [Section 1182(f)] nor [Section 1185(a)] provides the President with the unilateral authority to limit the rights of aliens present in the United States to apply for asylum. Nor can Article II's Vesting Clause or Article IV's Invasion Clause be read to grant the President or his delegees authority to adopt an alternative immigration system, which supplants the statutes that Congress has enacted and the regulations that the responsible agencies have promulgated.
Whatever you make of Moss' reasoning, this case is a striking example of legal tactics that can be used to achieve results very similar to what a universal injunction would accomplish. As Reason's Damon Root notes, the lead plaintiff in Trump v. CASA, which involved injunctions against Trump's attempt to unilaterally restrict birthright citizenship, immediately responded to that decision by filing a class action in Maryland. That lawsuit also mentions the APA, which the plaintiffs say was violated when agencies responded to Trump's birthright citizenship edict by "disregard[ing] their existing regulations without complying with the process required."
The APA option, which is limited to actions by executive agencies, is not always available. Alleged gang members detained as "alien enemies," for example, cannot challenge that policy under the APA, since the Supreme Court has ruled that they must seek relief through habeas corpus petitions. But that does not mean they cannot file class actions that aim to broadly block or reverse deportations under the Alien Enemies Act (AEA). Last month in J.G.G. v Trump, for example, James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, issued a preliminary injunction that applies to a class consisting of "all noncitizens removed from U.S. custody and transferred" to a notorious prison in El Salvador based on Trump's dubious invocation of the AEA.
Class actions must meet the criteria set forth in the Federal Rules of Civil Procedure, including "numerosity, commonality, typicality, and adequacy of representation." But Moss thought the plaintiffs in RAICES v. Noem readily met those requirements, and Boasberg reached a similar conclusion in J.G.G. v. Trump.
That approach is viable enough to worry Justice Samuel Alito, who wrote a concurring opinion in Trump v. CASA warning that class actions could replace universal injunctions unless courts strictly apply the relevant requirements. "The class action is a powerful tool, and we have accordingly held that class 'certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,'" he wrote. "Today's decision will have very little value if district courts award relief to broadly defined classes without following 'Rule 23's procedural protections' for class certification."
