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The National Injunction in DACA II

National, preliminary, mandatory

Yesterday the Ninth Circuit upheld a preliminary injunction requiring the Department of Homeland Security to maintain the DACA program. (The opinion is here; coverage by Chris Geidner is here.) The preliminary injunction issued by the district court was a "national injunction," requiring that the DACA program be maintained for everyone, not just parties to the case. The opinion by Judge Wardlaw doesn't plow any new ground on the national injunction. It gives three familiar reasons in support of the national injunction in this case.

First, the court says a national injunction is the ordinary remedy under the APA. I've blogged about that question here and here. A partly critical reaction from Chris Walker is here. And the best thing yet written on the question is by Ron Levin here. The Ninth Circuit opinion makes no effort to engage these arguments about the meaning of the APA. It instead rests entirely on (relatively recent) precedents.

Second, the court says that uniformity is especially important for immigration. The grounds for this are the Constitution's reference to "an uniform rule of naturalization" and Fifth Circuit precedents making this same argument for national injunctions against DACA. The constitutional basis is exceedingly thin--a uniform rule of naturalization is not the same thing as a uniform immigration policy or law (and indeed the long history of state policy-making and enforcment with respect to immigration establishes that). On the Fifth Circuit precedent, the Ninth Circuit's position is basically "turnabout is fairplay." And it is: the argument for national injunctions in the immigration context is just as strong for "liberal" national injunctions as it is for "conservative" ones. But it is also just as weak.

Third, the court says "complete relief" to the plaintiffs requires a national injunction. This is a now familiar move. What should be a constraint on national injunctions--the goal of giving complete relief to the plaintiffs, and only to the plaintiffs--is instead turned into an accelerant for national injunctions. As the court recognizes, the key premise for this move is relief for "entity plaintiffs." Universities and states could assert fairly concrete harms in national injunction cases--these named students need to be protected and allowed to remain in the country, these costs to provide drivers' licenses should not be imposed, etc. Those could be remedied with narrower injunctions. But if very broad standing claims are accepted--recruiting and reputational interests of universities, dignitary and sovereignty interests of states, and so on--it is easy to see why this limit on national injunctions becomes a reason to give them. As is so often true, standing, merits, and remedies are interrelated.

Finally, it is worth noting the court's silence about the possibility of competing national injunctions on this very question--the Ninth Circuit might require DHS to maintain DACA, while a district court in the Fifth Circuit might soon forbid DHS from maintaining DACA. The court also ignored the fact that the injunction in question is mandatory. And it is very clear that mandatory injunctions are disfavored in the Ninth Circuit. (Many sources could be cited, but a place to begin is Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc).) This is another example of how the national injunction bends and distorts the law of remedies--the usual distinctions get neglected, in haste to resolve the case.

And one more thing. To date the most eloquent supporter of the national injunction has been Professor Amanda Frost. We have engaged in friendly sparring over this question in a number of fora, including the House Judiciary Committee. Indeed, in about an hour we will be discussing the question in a judicial education event with a couple hundred appellate judges. Amanda urges a careful consideration of the costs and benefits of the national (or "nationwide") injunction. Some courts have undertaken the more thorough analysis she suggests. It is worth noting that the Ninth Circuit did not. Its arguments in DACA II basically support the idea the national injunction is the default, one might even want to say nearly automatic, in three classes of cases: APA cases, immigration cases, and entity plaintiff cases. In other words, a preliminary national injunction--even a supposedly strongly disfavored mandatory one--could be the default remedy in nearly all of the headline litigation against the executive branch. This is not the way our judicial system is designed to function.

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  • loveconstitution1789||

    Another reversible decision by the 9th Circuit.

    If Obama can create a pen and phone decree then Trump can cancel said decree with a pen and a phone.

  • damikesc||

    I don't get how Obama's "prosecutorial discretion" requires Trump to engage in the same discretion.

    Isn't it already not legal but, officially, we lack the manpower to prosecute? But if a different President has different priorities, why would that still be valid?

    A court telling a President they MUST keep an executive order active from a different President seems to utterly stomp over separation of powers.

  • PoxOnBothYourHouses||

    damikesc: "utterly stomp over separation of powers."

    Bingo! Based largely on animus toward POTUS (not that it isn't earned). As with the injunctions against the "Muslim ban," this will ultimately be tossed. Hopefully, by then the new kumbaya-ish wave of bipartisanship that we're hearing so much about will have led to a law getting the Dreamers their green cards.

  • rsteinmetz||

    I've always wondered what the basis for requiring the government to maintain a program created by executive order when another executive order should be able to repeal it.

  • RoyMo||

    Isn't this like Congress binding a future Congress? And does this mean an Executive can not revoke an executive order the same Executive issued without judicial review? If so doesn't this make executive orders legislation?

  • ScottK||

    Nice to see a shout out to my admin law professor Ron Levin, and he frames the issues beautifully.

  • M.L.||

    This sounds like a pretty bad treatment of the national injunction issue.

    That aside, DACA is not merely "deferred action" or prosecutorial discretion, it granted positive legal benefits to illegal immigrants in order to circumvent the law, the legislature, and the clear will of the People.

    In related news, the bipartisan open borders crowd is once again gearing up for an attempt at no-strings mass blanket amnesty. Why do they hate this country and its people so much?

  • Sarcastr0||

    Breitbart is poisoning your brain - they disagree with you (and I) about how to make America great, they do not hate America.

  • M.L.||

    I am trolling a bit with that rhetorical question. I agree some of them just disagree about what's best for the country, although even then, they are typically dishonest with and consistently act contrary to their constituents. My opinions on this were the same before I ever heard of Breitbart.

  • Sarcastr0||

    Acting contrary to constituents is why we have a republic not a democracy.

    Your opinions have definitely gotten more adversarial since back in like 2013. Correlation, not causation.

    Breitbart's sensationalist headline is pretty dumb considering how far that's going to go in Congress.

  • Bob from Ohio||

    "they do not hate America"

    Citation needed.

    They want to dissolve the people and elect another as the saying goes.

  • Sarcastr0||

    You can make anyone a villain if you get to pick what their secret motives are.

  • Bob from Ohio||

    Its not secret.

    Open border-ers are quite open in their preference for immigrants over Trump supporters.

    For instance:

    " immigrants do have more of the old-fashioned America virtues than lots of old-fashioned Americans." ... ""Look, to be totally honest, if things are so bad as you say with the white working class, don't you want to get new Americans in?" Mr. [Bill} Kristol said." AEI interview 2017

    Plenty of similar comments by liberal Dems on twitter

  • Sarcastr0||

    Neither of those sound like hating America to me, nor do they sound like Kristol is coveting a new electorate.
    The second one doesn't even sound like it's his own thesis.

    I disagree with Prof. Somin on what he believes the results of an open border would be, but I do think it's clear his motives are not hatred for America, or even a desire for it to change in any fundamental way.

  • M.L.||

    You're both right. Some hate America and want to dissolve it. Others, like Somin, are just a bit wacky.

  • mlwjr||

    Quite frankly I can only consider you a liar if you read that and you think they are not coveting a different electorate via immigration

  • James Pollock||

    " to circumvent the law, the legislature, and the clear will of the People."

    The law, as written by the legislature, and (presumably) the clear will of the People allows for about 400,000 deportations per year.

    If the People want more deportations than that, they should demand that the legislature alter the law that caps the number of people who can hold deportation hearings, not whine about the President following the law.

  • ||

    Because every 85 IQ mestizo who gets citizenship is one 115 IQ white vote canceled out.

  • James Pollock||

    Presumably, your 80 IQ white vote doesn't get cancelled out.

  • Rev. Arthur L. Kirkland||

    the clear will of the People

    Most People, or people, favor deportation of the young people relevant to DACA? Maybe at a carefully cultivated Fox & Friends breakfast nook in Stale White Bread, USA, but I find it difficult to believe there is evidence that most people, or People, oppose DACA.

    Put Rasmussen on it.

    Except I would still expect Americans, even when polled by Rasmussen, to support DACA.

  • M.L.||

    No. People support legal status for DACA recipients but only in connection with permanently ending illegal immigration. Poll after poll also shows support for reduced legal immigration levels and merit-based immigration reform, with support from racial minorities often being the highest.

  • bevis the lumberjack||

    What does "permanently ending illegal immigration" mean in a legislative/judicial context? I mean....it's already illegal.

  • Brett Bellmore||

    Sufficiently funding enforcement, so that it being illegal matters. For example, there aren't enough immigration judges to process more than a fraction of the deportation cases.

  • M.L.||

    It means, for example, the very simple policy outline that the Trump campaign published way back in August of 2015. Wall, e-verify, ending birthright citizenship, and other reforms to enable enforcement, and to remove the massive incentives encouraging illegal immigration that have been passively permitted and actively propped up for decades. See also Why Israel's Border Fence Worked.

  • Sarcastr0||

    Do people still think Trump's wall is gonna happen? The Mexico paying for it bit certainly fell away.

  • damikesc||

    A simple tax on remittances would make Mexico pay for it, whether they wish to or not.

  • Sarcastr0||

    Funny, that doesn't seem to be a thing the Admin is working on.

  • bernard11||

    A simple tax on remittances would make Mexico pay for it, whether they wish to or not.

    It would make Americans who send money to Mexicans, and the Mexicans they send it to, pay for it.

    And would you tax remittances to Canada as well? Because if not there is going to be a healthy amount of money going to Canada and on to Mexico. And if not Canada, somewhere else.

    And that doesn't even take into account Constitutional issues, or the fact that Trump cannot, by himself impose such a tax, and that even before the election, with GOP majorities in both houses, it would never pass Congress.

    Simple. Right.

  • damikesc||

    It would make Americans who send money to Mexicans, and the Mexicans they send it to, pay for it.

    And given how big of a chunk of Mexico's economy it is --- it'd kill Mexico.

    And would you tax remittances to Canada as well?

    Wouldn't impact me.

    And that doesn't even take into account Constitutional issues, or the fact that Trump cannot, by himself impose such a tax, and that even before the election, with GOP majorities in both houses, it would never pass Congress.

    It's cute that you believe that.

  • James Pollock||

    "And given how big of a chunk of Mexico's economy it is --- it'd kill Mexico."

    Not even vaguely. There'd just be a shift to cash instead of electronic funds transfer. It'll give drug smugglers something to take back with them instead of running deadhead.

  • Bob from Ohio||

    "Do people still think Trump's wall is gonna happen?"

    No, not this term.

    But until it does, we are never calming the immigration issue.

    A wall is a confidence boosting measure to give sufficient political space to GOPers for a semi-comprehensive resolution. Half of the anti-immigration voters would be re-assured that this is not the 1986 scam again. It reduces the heat on the GOP that they can provide enough votes to pass stuff.

  • bernard11||

    A wall is a confidence boosting measure to give sufficient political space to GOPers for a semi-comprehensive resolution.

    A wall is a useless waste of money, like sending 15,000 soldiers to the border.

    Fiscal responsibility, anyone?

  • Bob from Ohio||

    LOL A liberal caring about government spending.

  • Sarcastr0||

    LOL, liberals also care, they just do it via actions not bloviating about it, shaving a bit off of programs for the poor and middle class, and then blowing up the deficit with tax cuts for the rich.

    They also understand the implications are different than a personal credit card.

  • damikesc||

    Explains Obamacare and their desire for "free college for all" and "Medicare for everybody".

    Because they get economics...

  • Sarcastr0||

    Do you want to compare the costs of Obamacare to the most recent tax cut?

    Do you understand the utility of investing in your workforce?

    Do you understand how cost comparison works? And how much more efficiency medicare's overhead is compared to insurance companies-through-employers?

  • damikesc||

    Do you want to compare the costs of Obamacare to the most recent tax cut?

    Happily. Obamacare is only going to get worse and worse as time goes on. You know, like every single government program in recorded history.

    Do you understand how cost comparison works? And how much more efficiency medicare's overhead is compared to insurance companies-through-employers?

    Which makes doctors refusing to take new Medicare patients all the more odd, no? I guess they don't want to because of how damned efficient it is, eh?

  • Brightly||

    "blowing up the deficit with tax cuts for the rich."

    Do you even look at the data? Federal tax revenues under Trump have been going up faster than inflation. Its not the Tax cuts that are driving the debt.

    "Do you want to compare the costs of Obamacare to the most recent tax cut?"

    I sense you are influenced by static models that are largely BS, but go ahead.

    "Do you understand how cost comparison works? And how much more efficiency medicare's overhead is compared to insurance companies-through-employers?"

    There is a lot of problems with this assertion. Medicare's administrative costs are inscrutable compared to private plans because the IRS does their bill collecting, the FBI investigates fraud, etc. These administrative functions are not born by Medicare.

  • Sarcastr0||

    Federal tax revenues under Trump have been going up faster than inflation. Its not the Tax cuts that are driving the debt.

    First sentence and second sentence are are not correlated at all.

    I sense you are influenced by static models that are largely BS, but go ahead.
    I sense you are influenced by dynamic scoring models where taxes are assumed pay for themselves.


    The CBO disagrees with you about Medicare
    . And taxes, for that matter.

  • James Pollock||

    "LOL A liberal caring about government spending."

    Pay more attention, you'll see it all the time.
    It comes up a lot.

    You see, Republicans like to spend money, too, and lots of it. They just like to spend it on some different things than Democrats do, so they quibble over it.

    It's almost like the money spent by the government shows up in people's pockets, and the people those pockets belong to like to think it will keep coming.

  • ||

    I hate the defense bloat as well, but if I had to pick one, I'd rather waste $500 billion on unnecessary fighter jets than $5 billion on food stamps for Shaniqua and her illegitimate children.

  • James Pollock||

    Why do you hate farmers?

  • James Pollock||

    "'Do people still think Trump's wall is gonna happen?'
    No, not this term."

    So, no. OK, then. New question:
    Do idiots think Trump's wall would have worked, in anything even vaguely like the way they imagined it?

  • mlwjr||

    I find people who call other names like idiots arein fact the iodiots themselves

  • James Pollock||

    "I find people who call other names like idiots arein fact the iodiots themselves"

    What does that make you?

  • Jeff_Kleppe||

    A program's popularity is not a basis on which to determine its legality.

  • Harvey Mosley||

    If the question were framed in a neutral manner, then yes. I would expect most Americans to be in favor of deporting young illegal aliens.

  • Ohio Farmer||

    The Constitution mentions a uniform rule of naturalization in Article I, not Article III, so it seems to be a weak reed for the court to rely on.

  • Gasman||

    Deferred action means 'we'll come back to it'.
    Common meaning of deferred, and so too in context of president Obama's executive order, is that the action deferred will be revisited.
    That highlights the problem with executive orders as the lazy man's way of getting something done. The next man in the big chair can just as easily write a new executive order.
    And for the California circuit to complain that Trump's revisiting this order is 'arbitrary and caprecious' is just bunk. The original deferral was if anything more arbitrary and capricious as it was contrary to established laws of the congress.

  • JonFrum||

    When judges refuse to engage in issues of obvious relevance, is it fair to say that they are being dishonest, and deliberatly violating their oaths to do justice to the Constitution?

  • bookwork83||

    I've been hearing constitutional crisis lately-wouldnt this fit that definition?

  • Allutz||

    This ruling is nonsense beyond nonsense.

    If DACA granted substantive rights, it was unconstitutional.

    If DACA did not grant rights, no one has standing to challenge its repeal.

  • M.L.||

    This is obviously correct. At the time of the original DACA challenges, I pointed out this same basic fact:

    Supporters of DACA constitutionality, such as Ilya Somin, stressed repeatedly that DACA could be undone by a future executive at any time, at the drop of a hat. They said that this supported their (absurd) position that no substantive rights were granted. I predicted that our lawless left-wing judges would first accept this argument in support of DACA's constitutionality that no substantive rights were granted, and then would turn around and claim that it couldn't be undone because it was unconstitutional to take away these substantive rights.

  • Sarcastr0||

    Lots of people going beyond this post's discussion of remedies in federal court.

    Amanda Frost is great, she was a favorite professor of mine, in fact!

  • James Pollock||

    Here's a question for the professors. Please answer this question as if it came from that gunner in the second or third row in the 1L lecture gallery.

    If a federal agency pursues a regulation that is unconstitutional on its face, or Congress passes such a statute, and a district court so rules:

    1) Isn't the legal determination that the regulation/statute has no real authority? A legal nullity? That isn't a finding that's unique to the plaintiff. I mean, judicial review was inferred, so they aren't interpreting Constitutional text to find the limits of judicial power, they started with judicial power and decided that judicial power included the power to say "what the law is", and the reason they found judicial review was that unconstitutional statutes were null ab initio.

    2) doesn't issue preclusion prevent one of the parties from re-arguing the same issue in another case?

    These two factors seem to indicate to me that a nationwide injunction is not too extreme a remedy for that type of case, even if we disfavor nationwide injunction. And where there's one exception to a rule, we shouldn't be surprised that someone else can find a good reason for another.

  • James Pollock||

    And another:

    " In other words, a preliminary national injunction--even a supposedly strongly disfavored mandatory one--could be the default remedy in nearly all of the headline litigation against the executive branch."

    Doesn't plaintiff have to show a likelihood of prevailing on the merits to get preliminary relief?

    It sounds like the way to avoid preliminary national injunctions is for the executive and legislative branches to stop straying from their Constitutional powers.

  • damikesc||

    It sounds like the way to avoid preliminary national injunctions is for the executive and legislative branches to stop straying from their Constitutional powers.

    Trump is trying to do so.

    Courts are, illegally, saying no, you cannot end an executive order.

  • James Pollock||

    "Trump is trying to do so."

    I might have believed that, if he weren't also claiming the authority to overrule birthright citizenship via EO. (And also such a routine and habitual liar.)

  • mlwjr||

    There's a big difference between campaign bluster and actual action as I am sure you are aware

  • jdgalt1||

    The big problem with national injunctions is that they constitute judicial-level orders to parties who didn't get to have their say in the case that led to the order. This is especially unjustifiable when the court issuing the national injunction hasn't even gotten yet to the merits of the case before it -- it's worse than a gag order in a not-yet-decided defamation case.

    I could accept some national injunctions if they are part of the decision or settlement of a completed case. Though even then, when this happens it should automatically confer standing on anyone directly or indirectly affected by the order to appeal the order. (And the court should have to show good cause for not having added these affected parties to the case and given them opportunities to speak and call witnesses before it was decided.)

  • Brightly||

    The 9th Circuit's decision can probably be summed up as:

    Despite whatever the law passed by Congress says, Donald Trump is not allowed to decide who can or cannot be thrown out of the United States, but a former President who is no longer in power can.

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