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.