Whose case? Whose remedy? Thoughts on the travel ban injunctions.

The "travel ban" litigation has finally reached the Supreme Court. In its cert petition, the government presents three questions for the court to consider. The first is about justiciability, about whether the courts can hear the suit. The second is about the merits, about whether the executive order violates the Establishment Clause. The third question is about the remedy: "Whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad."

With this third question, the government has brought to the court's attention an important issue: the proper scope of injunctions against the national government. Generally speaking, there are two possible answers. One is that an injunction should be directed toward the relationship of the plaintiff and defendant: The national government should be enjoined from applying the challenged order to the plaintiff. The other is that the injunction can control the defendant's conduct toward everyone, including non-parties.

The question is increasingly important, and it is of bipartisan concern. At the end of the Obama administration, there were national injunctions against the government; now, early in the Trump administration, there are national injunctions against the government. It might seem like national injunctions are the New Normal. They are new, but they are not normal.

National injunctions are being widely discussed among law professors, but they have not been the subject of much treatment in the popular press (with exceptions). One reason is the technicality of the issues. Another reason is that it may seem—to those who oppose President Trump and to those who support him—that this is no time for legal niceties. But the rule of law means it's always time for legal niceties.

The argument for a national injunction is clear, attractive and wrong. It is the idea that different people should not be treated differently merely because of who happened to bring a lawsuit. The immigration law applied to someone in Virginia should be the same as the immigration law applied to someone in Louisiana. If a court decides "This presidential order is unconstitutional," and its reasons run beyond the plaintiffs, then the remedy the court gives should also run beyond the plaintiffs.

Clear and attractive, yes, but why wrong? The argument rests on a lot more than just one reason. I'll run through some of the reasons here, but for a thorough discussion you'll want to go to the new crop of law review articles on this question. (There is Michael Morley's article that drew attention to the question in 2016; Zayn Siddique's forthcoming article in the Columbia Law Review; my own forthcoming article in the Harvard Law Review; and Getzel Berger's forthcoming note in the NYU Law Review.)

First, the Constitution gives the federal courts "the judicial Power"—that is a power to decide "cases" for particular litigants, not a power to decide general questions and issue remedies for people not before the court (Lewis v. Casey).

Second, the long run of judicial practice matters, especially for procedure and jurisdiction. And for the first 170 years of the federal courts there was apparently an unbroken practice of not giving national injunctions. (Yup, the national injunction "began / In nineteen sixty-three.") Indeed, the absence of anything like these injunctions in traditional equity means they lie outside the equitable jurisdiction of the federal courts (Grupo Mexicano).

Third, national injunctions are flatly inconsistent with our judicial structure. We have about a dozen federal courts of appeals, with part of the idea being that legal decisions can be different in different cases brought in different parts of the country. One reason for that structure is that it promotes good decisionmaking by the Supreme Court. But, for various technical reasons, national injunctions accelerate the pace of decisionmaking and reduce the number of different judicial perspectives. That is especially so with the recent spate of national injunctions against the Obama and Trump administrations, because these have been preliminary injunctions. Preliminary national injunctions force the Supreme Court to decide major constitutional questions faster, with a narrower range of judicial opinions, and without the benefit of a trial and fully developed record.

Fourth, when a single court can give a national injunction, it strongly encourages forum-shopping. When people wanted to sue the Obama administration and get a national injunction, they went to Texas; when people want to sue the Trump administration and get a national injunction, one place they don't go is Texas. All you have to do is find one friendly jurisdiction and you can get a decision that controls everywhere.

Finally, there is a legal device for allowing a case to be brought on behalf of lots and lots of people—the class action. It has requirements meant to ensure fairness to everyone in the class. Whether those requirements are the right ones is debatable. But what is clear is that when a court gives a national injunction, it is giving the kind of remedy appropriate for a national class action—while going around all the other requirements for a class action. (It's notable that the Supreme Court case most often cited as supporting a national injunction, Califano v. Yamasaki, was a class action; it does not support the use of national injunctions in non-class cases.)

Despite these fundamental problems with the national injunction, the lower courts have not been paying attention. Instead, when they issue national injunctions, they tack on a page or two of discussion at the end of the opinion. The discussion is cursory, the arguments weak. In fact, the courts never even let the reader know the subject is controversial. The arguments against the national injunction—including the five I just sketched—are not even mentioned, much less rebutted.

A case in point is the decision from the en banc Fourth Circuit. After a lengthy analysis of the merits, the court finally got around to explaining why it was giving a national injunction. The court's own earlier precedents were rather strongly against national injunctions, but you would never know from the opinion.

To justify a national injunction, the Fourth Circuit gave three reasons. Plaintiffs are dispersed. Uniformity is important. And it would be unconstitutional under the Establishment Clause for the order to be enforced against other people—a narrower injunction "would not cure the constitutional deficiency."

None of these is strong. But the real problem is that the Fourth Circuit never squared the idea of a national injunction with the charter of authority for the federal courts—Article III of the Constitution. Nor did it ever address the glaring inconsistency between the national injunction and the equitable jurisdiction of the federal courts. Nor did it ever discuss the major policy problems that would engulf the federal courts if national injunctions were to become the norm.

The proper scope of an injunction against the national government is an important question, and increasingly hard to ignore.