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Tocqueville on national injunctions

Marty Lederman has a very interesting post at Balkinization on national injunctions. Setting aside the constitutional and statutory problems with the national injunction, he asks the following question: "But if courts of equity do have the power to impose more systemic, 'global' injunctions—with the prospect of Supreme Court affirmance or reversal within sight—why would anyone think that thousands of lawsuits, and countless different resolutions, is an optimal state of affairs in the meantime?"

I take Marty's reference to "thousands of lawsuits" to be a bit of hyperbole. It is true there were 1600 injunctions against the enforcement of one New Deal tax provision, but it was a unique instance. For a variety of reasons, nothing similar happened with any other statute or rule in American history, even though courts were apparently giving only plaintiff-protective injunctions into the second half of the twentieth century. (The history is discussed in this article.)

But the substance of Marty's question is important. If courts don't have this power, end of story (as he recognizes). But if courts do have this power, is there anything to gain from having "duplicative lawsuits" (in the words of the recent Seventh Circuit decision, discussed here)?

It turns out that Tocqueville had an intriguing answer to this question:

"Whenever a law which the judge holds to be unconstitutional is argued in a tribunal of the United States he may refuse to admit it as a rule; this power is the only one which is peculiar to the American magistrate, but it gives rise to immense political influence. Few laws can escape the searching analysis of the judicial power for any length of time, for there are few which are not prejudicial to some private interest or other, and none which may not be brought before a court of justice by the choice of parties, or by the necessity of the case. But from the time that a judge has refused to apply any given law in a case, that law loses a portion of its moral cogency. The persons to whose interests it is prejudicial learn that means exist of evading its authority, and similar suits are multiplied, until it becomes powerless. One of two alternatives must then be resorted to: the people must alter the constitution, or the legislature must repeal the law. The political power which the Americans have entrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the obligation which has been imposed of attacking the laws through the courts of justice alone. If the judge had been empowered to contest the laws on the ground of theoretical generalities, if he had been enabled to open an attack or to pass a censure on the legislator, he would have played a prominent part in the political sphere; and as the champion or the antagonist of a party, he would have arrayed the hostile passions of the nation in the conflict. But when a judge contests a law applied to some particular case in an obscure proceeding, the importance of his attack is concealed from the public gaze, his decision bears upon the interest of an individual, and if the law is slighted it is only collaterally. Moreover, although it is censured, it is not abolished; its moral force may be diminished, but its cogency is by no means suspended, and its final destruction can only be accomplished by the reiterated attacks of judicial functionaries. It will readily be understood that by connecting the censorship of the laws with the private interests of members of the community, and by intimately uniting the prosecution of the law with the prosecution of an individual, legislation is protected from wanton assailants, and from the daily aggressions of party spirit. The errors of the legislator are exposed whenever their evil consequences are most felt, and it is always a positive and appreciable fact which serves as the basis of a prosecution."

1 Alexis de Tocqueville, Democracy in America (Henry Reeve transl., 1835) 141-143 (emphasis added).

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  • jdgalt1||

    Unfortunately for all of us, the New Deal era, which Toqueville did not live to see, gave us two more ways in which to resolve a conflict between the law and the Constitution. The third way is for the legislative branch to bully the Justices into misreading the Constitution their way, and the fourth is to appoint Justices who agree with the legislators. Against these assaults on its integrity our republic has as yet no defense.

  • Scarecrow Repair & Chippering||

    Criminal verdicts are nationwide; the criminal can't escape out of the court's jurisdiction and thumb his nose across an invisible line.

    Why should injunctions not also be nationwide?

  • Brett Bellmore||

    They are nation-wide, but only with respect to the parties; If you live in Hawaii, and a judge enjoins the federal government from enforcing a law in your case, and you move to Georgia, the federal government is still enjoined from enforcing that law in your case.

    The alternative is that multiple plaintiffs can contest a law before multiple judges, and the judges decide the cases differently, and, only the one judge who ruled against the government, and decided to issue a nation-wide injunction, matters.

    He over-rides the decisions of his supposedly co-equal brethren, and sets policy nation-wide.

    He certainly becomes a very important judge, doesn't he?

  • BillyG||

    Which then becomes...a judge in Georgia issues an injunction against an injunction from a judge in Illinois. Or, we just had a judge issue a requirement to re-instate DACA. Another judge in another jurisdiction issues an injunction against DACA. It's impossible to comply with both everywhere simultaneously.

  • Brett Bellmore||

    Exactly. This sort of contradiction is taking place in the real world right now, it's not hypothetical. One judge is enjoining the government to continue what another judge is enjoining the government to cease doing.

    It's more TrumpLaw. The problem with such contradictions would be considered decisive in legal circles were the defendant not the Trump administration.

  • Sarcastr0||

    There doesn't seem to be much evidence of judges changing the frequency of their use of national injunctions. All that's changed is you suddenly seeing judicial bias everywhere.

  • Brett Bellmore||

    Actual legal professionals seem to think it's getting out of hand. Even ones who approve of them think they're getting much more frequent.

  • Rev. Arthur L. Kirkland||

    1. It's more TrumpLaw.

    2. There doesn't seem to be much evidence of judges changing the frequency of their use of national injunctions. All that's changed is you suddenly seeing judicial bias everywhere.

  • Rev. Arthur L. Kirkland||

    3. Actual legal professionals seem to think it's getting out of hand.

    The linked "actual legal professional" referred to events of the most recent decade.

    This makes point 3 misleading and largely irrelevant as a response to point 2, and no help with respect to supporting flimsy point 1.

  • Sarcastr0||

  • FlameCCT||

    While the frequency may not be changed, the application has changed. Instead of nationwide injunction for the individual, it is now being applied to any and all individuals that may or may not be affected.

    That is similar to a district court judge in TX issuing a national injunction that stops DACA.

  • Brett Bellmore||

    "it is now being applied to any and all individuals that may or may not be affected."

    That's actually what "nation-wide injunction" means in this context.

  • Sarcastr0||

    This looks more like you guys are more unhappy about these injunctions lately and thus have decided they must be partisan.

    From what I recall in law school, this was already a perennial academic topic like 10 years ago.

  • MatthewSlyfield||

    "The alternative is that multiple plaintiffs can contest a law before multiple judges, and the judges decide the cases differently, and, only the one judge who ruled against the government, and decided to issue a nation-wide injunction, matters."

    Turn that around, only one district judge rules in favor of the government, what then? Is that one plaintiff just screwed?

  • FlameCCT||

    Apply it to a different circumstance; a national injunction issued stopping DACA renewals. Should that national injunction apply to CA, et.al.?

  • Brett Bellmore||

    Why shouldn't they be screwed? They lost in court! Isn't that supposed to imply you don't get what you want?

  • Tall Paul||

    Maybe someone should find a District Court that is willing to issue a nation-wide (or maybe even single-district) injunction that affirmatively requires the Executive Branch to do something that some other District Court's nation-wide injunction explicitly forbids. Surely, there are plenty of potential plaintiffs who would have standing to seek such an order.

  • Tall Paul||

    Maybe someone should find a District Court that is willing to issue a nation-wide (or maybe even single-district) injunction that affirmatively requires the Executive Branch to do something that some other District Court's nation-wide injunction explicitly forbids. Surely, there are plenty of potential plaintiffs who would have standing to seek such an order.

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