National injunctions—only in immigration law?

Federal courts have routinely issued national injunctions in the litigation over the "travel ban." (If you need a quick overview on national injunctions, go to this post from last week.) One of the justifications given for these injunctions is that immigration law is different. Immigration law needs to be "uniform," the argument goes, and to achieve that uniformity there must be a national injunction. That is, the need for uniformity justifies giving an injunction that doesn't just protect the plaintiffs but instead restrains the federal government from enforcing a statute, regulation or order against anyone.

The immigration-uniformity argument appeared in United States v. Texas, and it shows up in nearly every brief and opinion supporting a national injunction against the challenged executive order. It appeared yesterday, for example, in the U.S. Court of Appeals for the 9th Circuit's decision upholding for the most part an injunction against the Trump administration. (The argument was noticeably absent, though, in the American Civil Liberties Union's brief in opposition filed yesterday in the Supreme Court.)

When making the immigration-uniformity argument, judges and lawyers usually cite a clause in Article I, Section 8 of the Constitution. That clause grants two enumerated powers to Congress: "To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States." Also cited sometimes is Congress's instruction, in the Immigration Reform and Control Act of 1986, that "the immigration laws of the United States should be enforced vigorously and uniformly."

But the immigration-uniformity argument is weak.

First, the Naturalization Clause doesn't require uniformity regarding naturalization from all three branches of the national government. Rather, it grants Congress the power to make a uniform rule. (As with bankruptcy law.) By contrast, the first clause of Article I, Section 8 authorizes Congress to collect, among other things, "Duties, Imposts, and Excises" and then adds: "all Duties, Imposts and Excises shall be uniform throughout the United States." Compared with the naturalization clause, that clause is easier to read as a general uniformity requirement, one that might apply not just to Congress but also to the federal courts. But even that clause is not taken as a revision of the scope of the federal courts' equitable powers. Article III gives the federal judiciary "the judicial Power"—a known thing, an understood authority—and it would be odd if that were then customized by stray words in Article I to be a much broader judicial power in cases about duties, imposts and excises. It has never been our practice in such cases for federal courts to give national injunctions.

Second, the naturalization clause grants Congress the power to make a uniform "Rule of Naturalization." Not a uniform "Immigration Policy." In effect, the immigration-uniformity argument reads "Rule of Naturalization" as either a metonymy or synecdoche for "Immigration Policy." True, there are figures of speech in the Constitution. But both the original understanding and the practice throughout the first century of the United States seem hard to square with taking "Rule of Naturalization" as a figure of speech for all immigration policy. Perhaps a strong argument can be made (one attempt is on P. 416 and n. 243 of this paper). But the point is that real argument is needed, not just a cite to the clause.

Third, the fact that Congress said the immigration laws "should be enforced vigorously and uniformly" does not answer the question of whether the federal courts have the power to issue national injunctions. National injunctions have a legal authority problem (as discussed here). They are inconsistent with "the judicial Power" granted by Article III, understood as a power to decide cases and grant remedies only as to the parties. They are also inconsistent with the equitable jurisdiction of the federal courts (traceable to the Judiciary Act of 1789-see Grupo Mexicano). The Article III problem is not solved by saying Congress wants uniformity in immigration law. Nor is a general statement from Congress a sufficiently clear indication that it was overriding the traditional scope of equitable remedies (cf. Nken v. Holder). It's easy to see this if you switch from thinking about "uniformly" to thinking about "vigorously." Equitable doctrines disfavor mandatory injunctions that might compel the executive to enforce the immigration laws in a particular case. Did Congress override those doctrines by saying "vigorously"?

The bottom line is that no one has shown any compelling reason to think the naturalization clause authorizes national injunctions. For two years the argument has not gotten much beyond proof-texting. It feels a little like refrigerator poetry, with magnets spelling out U-N-I-F-O-R-M being slid around from one place to another, from Article I to the scope of the federal courts' equitable powers.