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National injunctions and "a spirit of defiance of judicial authority"

A "sternly put" judicial opinion on national injunctions and the APA


Another day, another national injunction. Last night the U.S. District Court for the District of Columbia issued a national injunction in Make the Road New York v. McAleenan. Josh Gerstein of Politico offers a summary here. The opinion is 126 pages, and I want to call attention to the 12 pages that discuss the question of whether the APA authorizes federal courts to issue national injunctions.

This is a difficult question, and the answer depends on what the interpreter emphasizes. If one emphasizes the state of the law when the APA was adopted, and its use of technical language like "set aside" that is not typically used for injunctions, the answer is no to national injunctions. Under current D.C. Circuit precedent, the answer is yes. As a constitutional matter, the answer depends on whether the interpreter thinks national injunctions are consistent with Article III. As a matter of policy, it depends on what weight one gives to the Mendoza decision and the policies implicated in the non-acquiescence debate in the 1980s. Then there is the little-considered issue of whether mandamus, rather than an injunction, is actually the best analogy from the judicial toolkit. And what makes the question even more difficult is that when the APA was enacted, Congress was designing a system of judicial review with the expectation that agencies would make policy predominantly through adjudication, not rulemaking. In short, this is a hard question. The two best analyses of it to date are by Ronald Cass, at pp. 56-61 of his Nationwide Injunctions' Governance Problems; and Ronald Levin, in his Regulatory Review piece on this question.

So what does the district court in Make the Road New York do with this difficult question? Here is some of the language the court uses to describe the government's position that the injunction should control only the relationship of the parties. I stress that these are not quotes from an imprudently intemperate brief filed by a party or amicus: these are quotes from the judicial opinion.

"Defendants' Argument That Any Injunction Can Only Restrict Agency Action As To These Plaintiffs Cannot Be Countenanced" (the heading on 107)

"the most peculiar argument that DHS has made in the rather long series of unpersuasive missives it has launched in opposition to Plaintiffs' motion for a preliminary injunction" (107)

"The strangeness of this position derives" (107)

"Even more troubling is the fact that DHS appears to be making this argument on principle" (107)

"federal courts countenance that effort at their peril" (108)

"In sum, and sternly put, the argument that an administrative agency should be permitted to side-step the required result of a fair-fought fight about well-established statutory constraints on agency action is a terrible proposal that is patently inconsistent with the dictates of the law. Additionally, it reeks of bad faith, demonstrates contempt for the authority that the Constitution's Framers have vested in the judicial branch, and, ultimately, deprives successful plaintiffs of the full measure of the remedy to which they are entitled." (108)

"In light of the unambiguous remedial requirements set forth in the APA, as unequivocally discussed by the D.C. Circuit in the National Mining Association case, it is hard for the Court to understand why DHS still insists" (111)

"the bizarreness of Defendants' unexplained suggestion that the required remedy for a procedurally invalid agency rule turns on whether the plaintiffs have 'invoke[d] associational standing' (Defs.' Opp'n at 75; see also PM Hr'g Tr. at 132:4–7) cannot be overstated" (111)

"a convoluted narrative" (111)

"the scope-of-remedy principle that is laid out in the APA and is echoed in the clear pronouncements of both the Supreme Court and the D.C. Circuit also reflects a common-sense understanding of what it means for a court to determine, at the conclusion of a case, that a formerly binding legal act of one of the parties is null and void" (112)

"It would be manifestly unreasonable for the agency to argue" (112)

"that peculiar argument" (112)

"Defendants' limited-injunction argument appears to reflect a spirit of defiance of judicial authority in the aftermath of defeat that is not easily reconciled with established constitutional norms or with standard, good faith practices that seek to ensure that a successful plaintiff is made whole." (116)

"DHS's contention that the agency should be deemed to have the unfettered ability to carry on with respect to pronounced unlawful behavior—in the wake of a ruling by a federal judge that the particular conduct at issue (i.e., enforcement of a procedurally invalid rule) violates a federal statute, and before the case has run its course through the courts of appeals—is quite troubling" (117)

"What is more, DHS makes the astonishing suggestion that the Court itself should declare that, after a plaintiff successfully establishes that an agency rule violates the law, the federal courts must stand impotently by while the agency acts in direct defiance of that court's legal determination by continuing to apply the invalid rule with respect to any person who is not the individual who filed the legal action that is before the Court" (117)

"quite frankly, untenable" (117)

"conflicts with core constitutional norms" (118)

Two thoughts. First, a wise judge once instructed his clerks never to use the word "clearly," because when a judicial opinion says "clearly" the proposition in question is usually not clear. So here, mutatis mutandis.

Second, I wonder what the court would make of the fact that the U.S. Supreme Court granted cert on this very question in Summers v. Earth Island Institute, 555 U.S. 488, 500–01 (2009). And that was before the national injunction fundamentally changed the relationship of the executive branch and the judicial branch.