The Volokh Conspiracy

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DACA and the danger of conflicting injunctions

Will the federal courts issue directly clashing national injunctions about DACA?


Last week seven states filed a suit in the Southern District of Texas seeking a national injunction (complaint, motion for preliminary injunction). The requested national injunction would prohibit the federal government from granting or renewing DACA status on the ground that the original DACA executive order in 2012 was unlawful. What makes this such a major development on the national injunction front is that the requested injunction would be directly contrary to two national injunctions that require the federal government to maintain the DACA program–including allowing DACA renewals–one from the Northern District of California and one from the Eastern District of New York. (I am setting aside the national injunction on DACA from the District Court for the District of Columbia, because its stay of its order gives the court more room to avoid a conflict.)

What will happen next depends on the decisions of each of the judicial actors.

For the Texas district court, the three options are (1) to deny the motion for a preliminary injunction, (2) to grant the motion for a preliminary injunction, or (3) to slow-walk the decision. Two variants of the slow-walk option are (a) to decline to grant a preliminary or permanent injunction but then grant a declaratory judgment (which the complaint also seeks); or (b) to grant a preliminary injunction but phase in its application, which is always a possibility for equitable relief.

The slow-walk options could easily get us to the same place as choice two, granting a national injunction. When the defendant acts contrary to a declaratory judgment the court has the authority to then grant an injunction (under 28 U.S.C. § 2202). And a phased-in preliminary injunction would be in some tension with the theory of the preliminary injunction (particularly the idea that the court is granting the injunction to preserve its own power to decide the case: as the Court said in University of Texas v. Camenisch, "The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.")

If the Texas district court grants a national injunction immediately forbidding the granting or renewing of DACA status, the California and New York district courts will then have to decide whether to modify their injunctions to avoid a conflict.

If the federal defendants face directly conflicting injunctions, they will be in a Catch-22 in which they risk contempt sanctions no matter what they do. Given the collateral bar rule (illustrated by Walker v. City of Birmingham), the proper response will not be for the government defendants to violate the injunction. Instead they would likely seek to have both injunctions modified. If those motions were denied, they would then appeal. If those appeals were denied, they would almost certainly seek a stay of the injunctions from the Supreme Court.

Eventually the Supreme Court will directly confront whether the federal courts have the constitutional and statutory authority to grant national injunctions. If the justices are faced with the mayhem of directly conflicting national injunctions from different district courts, it is hard to imagine a context in which the demise of the national injunction is more likely.

Six more points:

1. The risk of directly conflicting injunctions is exacerbated by the fact that the California and New York district courts gave national preliminary injunctions that were mandatory, not prohibitory. The traditional rule is that mandatory preliminary injunctions are strongly disfavored. This makes the overreach of these national injunctions even more glaring.

2. A good ground for denying or narrowing the preliminary injunction requested by Texas is laches, which is a defense to equitable relief when the plaintiff has delayed in suing (even though the suit is brought within the applicable statute of limitations).

3. The national injunction depends on the idea that the plaintiff is not challenging a threatened enforcement action, but is instead challenging a "thing," like a statute, rule, or executive order. That idea is at its zenith (or nadir) in the complaint filed by Texas, which argues that there is no inconsistency between its challenge to the 2012 DACA order and the challenges in California and New York, because those are to later actions by the Trump administration and not to the 2012 order. If we accept the idea that plaintiffs can challenge a legal rule, then the Texas argument has a certain rationality. But we should not accept that idea. These cases offer the Court an opportunity to return to the idea that an injunction is not meant to knock out a legal rule, but rather to protect the plaintiff against the enforcement of a legal rule.

4. If you want to know about the last time there was a fierce struggle between courts issuing directly conflicting injunctions–1860s New York–see p. 448 of this article. If you want to read more about the risk of conflicting national injunctions, including how a New York district court came close to issuing an injunction directly conflicting with a Texas district court at the end of the Obama presidency, see pp. 462-464 of the same article. (Close readers will note the interesting quotation in footnote 273, which is from the same judge in the Eastern District of New York who issued one of the DACA national injunctions.)

5. Whatever happens in this case, the suit just filed in Texas is a reminder that the risk of conflicting injunctions is not a chimera. As long as there are national injunctions, the risk of conflicting national injunctions will be with us.

6. It is becoming increasingly clear that the national injunction is opposed to what the U.S. Supreme Court in Martin v. Wilks called "our deep-rooted historic tradition that everyone should have his own day in court." As the Court said in that case, "A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings." That principle and the national injunction are in a fight to the death.