The next step for the national injunction

Last week, a federal judge in the Northern District of Illinois granted a national preliminary injunction in a case about federal policy regarding "sanctuary cities." I want to highlight the court's reasoning on the scope of the injunction.

First, a quick refresher on some key terms: An "injunction" is a remedy by which a court orders someone to do or not do something. A "preliminary injunction" is an injunction given before there has been a trial or other decision on the merits. It is supposed to be used when a court needs to act quickly in order to keep the status quo in place so that it will be able to reach a final decision. Usually an injunction protects only the plaintiff, not other people who aren't in the case. But federal courts have increasingly taken to issuing "national" injunctions—injunctions that control how the federal government acts toward everyone, not just the plaintiff. A lot of national injunctions were given at the end of the Obama administration, and still more have been given now in the Trump administration.

Now on to the new case. The City of Chicago is challenging two conditions that the attorney general has placed on a federal grant program, conditions that are inconsistent with Chicago's "Welcoming City Ordinance." The district court concluded that the City of Chicago would be likely to succeed on the merits on some parts of its challenge and that denial of a preliminary injunction would cause the city irreparable injury (i.e., injury that would not be cured by prevailing on the merits). And so the court issued a preliminary injunction. But what was the scope of that injunction?

The district court's injunction went beyond just telling the attorney general not to apply the two grant conditions to the plaintiff (the City of Chicago). Instead, the district court decided that because Chicago was likely to win its case, the attorney general was prohibited from applying the two grant conditions to anyone. Here is the entirety of the district court's reasoning:

This injunction against imposition of the notice and access conditions is nationwide in scope, there being no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction. See, Int'l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017).

That's it. What I find fascinating is that the district court's opinion marks the logical next step in the recent line of national injunctions. Other courts giving national injunctions have suggested reasons such as "the violation is nationwide," etc. The next logical step is to treat the national injunction as the default in a constitutional challenge to a federal statute, regulation, order or similar agency action ("federal law," for short). That is what the district court's opinion does.

For the district court, a national injunction is the norm unless one of two special reasons for a narrower injunction could be given: that the case is "restricted to Chicago" or that "the statutory authority given to the attorney general would differ in another jurisdiction." What's striking about those two exceptions is that, for a challenge to federal law, they are essentially empty sets. If what Chicago is challenging is a federal law (not just the application of that law in its case), it will almost never be true that the challenge is "restricted to Chicago" or that the "the statutory authority of the attorney general" is Chicago-specific. Indeed, a federal law that did exclusively target Chicago might itself violate constitutional prohibitions.

There are many reasons to reject national injunctions, no matter what the politics of the particular case. Those reasons include the nature of the judicial power granted by Article III, traditional equitable principles and policy problems from the national injunction including forum-shopping, conflicting injunctions and lack of percolation. All those reasons are discussed in this paper, and they apply with equal strength to the national injunctions against the Obama administration and to those against the Trump administration. Nothing in the district court's opinion offers any rebuttal to those reasons.

But what the opinion does offer is clarity about where the national injunction is going. If the district court's perspective is accepted, in the space of two and a half years (early 2015 to late 2017), the national injunction will have gone from being an unjustified aberration to being an unjustified new normal in federal courts.

It's not too late. But it is time for Congress, the Advisory Committee on the Rules of Civil Procedure, or the Supreme Court to step in and stop the slide toward remedial irresponsibility.