The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last month, I criticized a national preliminary injunction awarded in a suit by the City of Chicago. (Chicago is suing to challenge grant conditions imposed by the Department of Justice, conditions that are part of the administration's "sanctuary city" policy.) I noted that the district court offered only a single sentence of analysis about the injunction's scope, and I suggested that the one-sentence analysis portended that the national injunction was becoming routine.
On Friday the district court offered a much more lengthy analysis of the question. The new opinion accompanies an order denying the DOJ's motion for a stay of the nationwide application of the preliminary injunction.
The opinion is impressive for several reasons. One is that it rehearses all of the arguments that have been offered to date for the national injunction. Another is that for the first time a court endorsing such an injunction shows recognition of the counterarguments and the emerging literature criticizing the national injunction. (The critical articles cited are excellent work by Maureen Carroll and Michael T. Morley, as well as my own Multiple Chancellors: Reforming the National Injunction.) And the district court shows a commendable concern with national injunctions becoming ordinary remedies: "Nevertheless, issuing a nationwide injunction should not be a default approach. It is an extraordinary remedy that should be limited by the nature of the constitutional violation and subject to prudent use by the courts" (p. 13).
But the opinion is impressive for one more reason. It shows with utter clarity the logic of the national injunction. The court's argument boils down to a simple proposition: If the extent of the violation is nationwide, the scope of the remedy should be nationwide. Once that proposition is accepted, the national injunction will have become the norm for all challenges to the validity of a federal statute, regulation, or order. Indeed, that there is no limit to this proposition is clear because of the justification given by the court: Its national injunction is required by the rule of law. In the court's words, "The rule of law is undermined where a court holds that the Attorney General is likely engaging in legally unauthorized conduct, but nevertheless allows that conduct in other jurisdictions across the country" (p. 14).
The intuition behind this is understandable, and I consider it at length in my article. It is the "someone is wrong on the Internet" theory of the national injunction: "Something unconstitutional is happening somewhere." We could have a legal system built on the premise that one district judge should try to determine the law for the entire country. But we don't. We have a legal system where each court is supposed to decide the case and remedy the wrong of the parties. Then gradually, through appeals and precedent, the answer will be settled. But not right away, and not by the first court to decide a case.
Moreover, the court's reasoning is inconsistent with the very existence of class actions for injunctive relief. Those class actions are based on the premise that the remedy for a class of plaintiffs is broader than the remedy for one plaintiff.
Here is part of the analysis in my article on the national injunction:
In our system of courts - both federal and state, and with the federal courts divided among circuits - the choice has been made to allow some disuniformity in the law. The only way to avoid it entirely is to have a single court for the United States. Failing that, the next closest thing would be to have lots of courts and allow whichever one took the case first to decide it for the nation. Once we are committed to seeking only eventual uniformity, then it is not a knock-out objection that the rule advanced here allows for disuniformity.
The question should be about the right moment to achieve uniformity - at what point should the uncertainty be liquidated, by what legal actor, and in what posture? With the question posed that way, it is impossible to think the best legal actor is a single district judge selected through forum shopping. Nor is the best posture a decision by the Supreme Court on a motion to stay the preliminary injunction issued by a district court selected thus. The better way to resolve the question is either through the unanimous alignment of lower courts or through disagreement among the lower courts followed by a series of decisions of the Supreme Court. In other words, the way to resolve legal questions for nonparties is through precedent, not through injunctions.
Later, in the conclusion to the article, I raise the choice between resolving legal questions "quickly, comprehensively, and with immediate finality" or resolving them "slowly, piecemeal, and with a resolution that was only eventually final":
This choice is a deep problem that will never be solved. Each legal system can pick its poison, tending toward the vices of immediate, final resolution or the vices of slow, provisional resolution. In this regard, there is a sharp contrast between the English Chancery and the federal courts. A medieval Chancellor spoke on behalf of God and King; an early modern Chancellor spoke on behalf of conscience and King. These claims of epistemic certainty and political authority fit hand-in-ermine-lined-glove with the existence of a single Chancellor. But the authority of federal judges is different. Power in the American political system is pervasively divided - through federalism, through the separation of powers, and through the sprawling system of federal courts. A legal question is resolved through patience and the consideration of many minds. Which system is better, if starting from scratch, is a difficult question. The question of which system obtains in the United States is easy to answer: a fragmented, many-minds system. In a system like ours, there is no room for the national injunction.
The national injunction could be ended by the Supreme Court or Congress. It should be.