The Big National Injunction Case

A decision with major implications for the national injunction--not Trump v. Hawaii but Gill v. Whitford


The national injunction is moving from a simmer to a boil. Here are the major developments:

  1. Today, in Trump v. Hawaii, the majority did not reach the scope of the injunction. In a concurring opinion, however, Justice Thomas launched a ten-page critique of the "universal injunctions" being given by federal courts. He emphasized not the policy weakness of these injunctions, but their lack of legitimacy–their relative novelty, their inconsistency with a claimant-focused view of the judicial power, and their lack of connection to equitable principles. Justice Thomas's opinion has immediately become the leading judicial critique of the national injunction. At various points the opinion cites my article on the subject; I am not an indifferent observer about the arguments in the opinion. By contrast, in a dissenting opinion, in a footnote, Justice Sotomayor (joined by Justice Ginsburg) endorsed the lower courts' national injunction. What is striking is how cautious the endorsement was—only "[g]iven the nature of the Establishment Clause violation and the unique circumstances of this case."
  2. Tonight the Seventh Circuit granted a partial stay of the national injunction in the Chicago sanctuary city case. The Seventh Circuit had already decided to take the case en banc, but had not stayed the injunction, and the Solicitor General had filed an application for a partial stay with the circuit justice, Justice Kagan. (Steve Vladeck had an excellent roundup, current before tonight.) But action by the Supreme Court is no longer necessary. One could quibble with the Seventh Circuit order, which refers to the injunction as "STAYED as to geographic areas in the United States beyond the City of Chicago" [emphasis added]; footnote 1 of Justice Thomas's opinion is more precise, distinguishing places and parties.
  3. Meanwhile, in the Southern District of Texas, Judge Hanen is still considering whether to issue a national injunction that would directly conflict with other national injunctions that require the Administration to maintain the DACA program.
  4. Briefing continues in Nevada v. DOL, the Fifth Circuit case about contempt sanctions against plaintiffs' attorneys for bringing suits that the district court considered inconsistent with its national injunction. That national injunction was about a Department of Labor overtime rule and was issued near the end of the Obama Administration.
  5. Finally, too little attention has been paid to the implications for the national injunction of a case decided last week: Gill v. Whitford. (Exceptions are posts by Stephen Sachs and Howard Wasserman.) In Gill, the Chief Justice's opinion twice underscores—and even describes as a "rule"—the teachings of Lewis v. Casey that remedies should be plaintiff-focused. Moreover, the Court's opinion says that "[t]he Court's constitutionally prescribed role is to vindicate the individual rights of the people appearing before it." And its concluding exhortation is "that 'standing is not dispensed in gross': A plaintiff's remedy must be tailored to redress the plaintiff's particular injury." In short, Article III is not just about standing but about remedies, and the remedies given must be tailored not to abstractions like the extent of the violation by the defendant but to the "the plaintiff's particular injury." One could write a brief against a national injunction almost entirely from Gill. My reading of Gill is that it puts the federal judiciary on a glide path to ending the national injunction.

If defenders of the national injunction could choose their terrain, they would want two battlefields. One is policy: there are policy arguments for national injunctions, and there are policy arguments against them. (For the policy case in favor, see Amanda Frost's forthcoming article.) The other terrain is a judicial-supremacist, law-declaration conception of the judicial power. In that conception, what is central is that judges declare (or make) the law, and what is incidental is that it happens in cases. That conception fits the somewhat extravagant metaphor of judges "striking down" statutes. If a judge can "strike down" a statute—KO it, obliterate it—then why not have a national injunction against its enforcement?

But other terrain is being chosen by the justices. Gill requires that the national injunction be squared with a claimant-focused, plaintiff-injury-limited conception of the judicial power—the kind of conception that runs through cases like Frothingham. In his concurring opinion today, Justice Thomas also asked insistent questions about whether the national injunction has a basis in equitable principles. Whether the defenders of the national injunction are able to meet these burdens will likely be decisive for its future.

NEXT: The Court of History

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  1. “The other terrain is a judicial-supremacist, law-declaration conception of the judicial power. In that conception, what is central is that judges declare (or make) the law, and what is incidental is that it happens in cases.”

    I disagree with this description.

    Judges simply cannot declare or make law–although some people might want to spin it that way.

    Take Miranda for example.

    The Miranda decision did not make a law.

    If a law enforcement official does not read a suspect their Miranda rights, the cop is NOT breaking a law.

    And invalidating a law is not creating law (e.g. Murphy v. NCAA).

    1. How do you square such a claim – “Judges simply cannot declare or make law” – with the common law?

      1. I dunno.

        What’s common law?

        1. Judgemade law

    2. Mass props if your username alludes to the Kinks song.

  2. ===One is policy: there are policy arguments for national injunctions, and there are policy arguments against them.===

    The argument against them is a judge making political decisions wrapped in a sheen of rationalizations, then declaring his decisions so magnificently right, well so much so obviously it will survive the supreme court, he has to push it out to the nation.

    And if wrong, he’s pushed his failure onto the nation.

  3. An obvious problem with national injunctions is that a judge in one circuit can end up contradicting a judge in another circuit, with both of them claiming authority over parties to the others’ cases. Which is absurd.

    Sooner or later the Supreme court is going to have to settle this, national injunctions used to be very rare, now they’re cropping up all over the place as a result of (part of) the judiciary’s war on the Trump Presidency.

    1. Wasn’t the first one the nationwide injunction against Obama’s action on DACA?

      1. No, they started in the mid-twentieth century. Trump has been hit by them 22 times in his 500+ days in office, evidence that their use is increasing. “Forum shop until the statute drops”, is how I think Bray describes the practice.

      2. The one I am thinking of was the decision against the Obama DOL when they tried to raise the salary threshold for exempt employees. Nationwide injunctions know no partisan boundaries!

    2. Even simpler than that is that national injunctions go against the entire idea of jurisdictions. The 9th Circuit has no authority over Utah, and the 10th Circuit has no authority over California, because they are flat-out if different jurisdictions. Only the Supreme Court has jurisdiction over the entire country.

      1. This is patently false. A District Court judge has jurisdiction over the parties before it on matters relevant to the case or controversy.

        For instance, if a DJ orders someone not to destroy documents, or not to contact witnesses, it’s not any defense to say that the party did so but in a different State.

  4. The solution seems simple to me.

    Any suit asking for a holding of unconstitutionality against any federal action must be filed directly with SCOTUS. If they deny cert, the federal action stands. If and only if they agree to hear the case (and likely they would issue temporary national injunctions in those instances) would a permanent injunction and/or holding of unconstitutionality occur.

    1. Nah, too many such suits would be filed, the Supreme court would be spammed with them.

      Better to just stick to the old rule: That only the Supreme court could issue nation-wide injunctions.

    2. Your solution ignores the limits on the Supreme Court’s original jurisdiction, both under Article III and the Judiciary Act of 1899.

      1. There’s no reason that the Supreme Court’s original jurisdiction can’t be expanded, even if doing so requires amending the constitution.

        However, the supreme court’s original jurisdiction is probably much broader than you think.

        In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.

        So if someone is suing a state government seeking invalidation of a state statute, the US Supreme court has original jurisdiction now.

        SCOTUS should not have discretion to refuse to hear cases brought before it on it’s original jurisdiction.

        1. Really good point.

          I actually think there should be a separate court just for these types of cases. In PA, there are two types of court paths- The Commonwealth Court and the Superior Court. The former deals with state action and the later citizen actions (for the most part- I’m greatly simplifying things here).

          For Constitutional questions, I think there should be an original jurisdiction court “The US Constitutional Court” to deal with these types of questions. Appeal can still go to the Supreme Court.

    3. First, I think this critically misses that constitutionality almost always depends to some degree on the factual record. This needs to be developed by a trial court.

      Second, the injunctions in some cases are against State actions & laws, not Federal ones.

      Finally, SCOTUS quite intentionally lets issues percolate in the lower courts because it gives them a wide variety of opinion and analysis to base a decision on. This undoubtedly increases the quality of their decisions.

      In fact, this is one cited reason not to have nationwide injunctions, because they inhibit the creation of circuit splits and varieties of opinion.

      1. “Second, the injunctions in some cases are against State actions”

        Per the constitution the US Supreme court has now and has always had original jurisdiction if a state is a party.

        “In fact, this is one cited reason not to have nationwide injunctions, because they inhibit the creation of circuit splits and varieties of opinion.”

        There is already at least on issue (DACA) where there are contradictory national injunctions. Doesn’t seem to be much of an inhibition.

        Note: I agree that universal (I think national is a misnomer*) injunctions by lower courts are bad policy.

        *The issue of scope of the injunctions doesn’t really have anything to do with geography. It’s about covering people who are not parties to the case.

        1. Sort of.

          I strongly agree with calling them ‘universal’ rather than national because the problem is definitely not a geographic one.

          I’m a bit agnostic about whether they “cover people who are not parties”. If a plaintiff sues the DOJ (ferinstance), the DOJ is definitely a party and a universal injunction prohibiting the DOJ is one that “covers the parties”.

          I guess for clarity I would say that universal injunctions prohibit a party from taking a specific action even when that action does not implicate the interests of any other party.

          But that’s a mouthful and doesn’t add anything to clarity anyway.

    4. Could Congress create a specialized “National Injunctions Court” (rather like there is a specialized Federal Bankruptcy Court and even a U.S. Tax Court) and restrict District and Appellate courts from issuing national injunctions (except perhaps in narrow circumstances)?

      If a party wanted a national injunction, they would have to go to the National Injunctions Court. Perhaps such cases would be heard by a small panel (perhaps seven judges?) of randomly selected judges (perhaps cycling appellate court judges through that role) and their decisions could be directly appealed to the Supreme Court. As well, the National Injunctions Court could reject cases just as the Supreme Court can.

      This would give a forum to resolve most such cases (at least get the facts on the record) without bothering the Supreme Court while eliminating conflicting national injunctions and muting the effects of forum shopping.

      (Or, of course, SCOTUS could just squash these ridiculous National Injunctions.)

  5. Has Justice Thomas ever persuaded a majority of his colleagues to adopt a position, let alone with respect to an issue on which he began as a one-man band?

    Or does he tend to be a lonely outlier who votes reliably and predictably for right-wing results but does not persuade anyone?

    1. He convinces them all the time, buddy.

      1. How much time, in your judgment, will be involved in the journey from Justice Thomas’ lonely vote on national injunctions to a majority decision adopting his view?

        1. hmm… ~900 days left * ~.04 (seeming rate of national injunctions / day) = ~36 more national injunctions between now and end of term, meaning ample opportunity for more “emergencies” for the federal judiciary and executive branch that chaffs them both. I expect the answer is “within next three years” if the rate doesn’t slow down considerably. Thomas’ dissent says: “If their popularity continues, this Court must address their legality.” Not a threat I’d take lightly.

          1. I take threats from standing-alone justices with a long record of rogue thinking and failing to persuade colleagues lightly.

      2. Could you identify issues with respect to which Justice Thomas’ reasoning persuaded justices to change their public positions — not cases in which a justice was already going to vote against the union, or for law enforcement, or for the corporation, or for special privilege for certain religious claimants, but cases in which a justice’s public position changed consequent to Justice Thomas’ reasoning? My sense is that his reasoning exhibits little influence on the other justices, regardless of whether he votes with or against them.

    2. You’re predicting this topic will die on the vine? I mean, I think the answer to your first question is about to play out in front of us, right?

      1. The topic won’t die. Justice Thomas’ crackpot-territory reasoning, on the other hand . . .

  6. The biggest issue I see is the asymmetry of results. The plaintiffs in these cases only need to win in one district court to get a nationwide injunction. The govt, on the other hand needs to bat 1.000, because every time it wins, the judgment is limited to that plaintiff (or at most, that district). It is a one-way ratchet.

    My preferred solution would be to have some sort of expedited appellate review (maybe even all the way to the Supreme Court) that the govt could request before the injunction goes into effect. The plaintiff himself should of course get the immediate benefit of the judgment.

    1. I’d argue nationwide injunctions should be verboten. A district court is not a national court.

      1. That proves too much though. It can’t be correct that every aggrieved person needs to sue separately (if they cannot certify a class) in order to have their rights vindicated, where the issue is more-or-less the same every time.

        1. SCOTUS should be the only body able to issue national injunctions. It is our only truly national court. As pointed out, if two district judges disagree…then what?

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