Senate Hearing on National Injunctions


Yesterday the Senate Committee on the Judiciary held a hearing about national (a.k.a. nationwide or universal) injunctions. There was testimony by supporters and opponents of these injunctions. If you've been following this issue, the hearing will interest you. The link is available here.

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  1. The Second Circuit just ruled in favor of the Administration on denying certain funds to “sanctuary cities” states.

    This contradicts rulings in other Circuits.

    IMO, rather than barring national injunctions, we should have a national court (maybe three judges) to hear challenges such as this one to a national policy, with an appeal to the Supreme Court. It does not make sense to have multiple courts across the country giving conflicting rulings, and the attendant forum shopping and delay. One central court, one appeal, that’s it.

    1. Why not say that “national court” is the Supreme Court?

      1. Because the Supreme Court cannot hear a case in the first instance (denoted “original jurisdiction”) except in very limited cases.

        1. In fact, that was part of the holding of Marbury v. Madison, the part that most people don’t know. Congress said the Supreme Court would have original jurisdiction in the case. SCOTUS said, that is unconstitutional.

          1. What about all those cases which *states* keep bringing against various immigration policies?

            1. I suppose you are correct. A case between a state and the United States could be brought in the Supreme Court as original jurisdiction. But the Supreme Court has decided it does not have to take such cases, and generally doesn’t except in cases involving border or water-rights disputes.

              1. “A case between a state and the United States could be brought in the Supreme Court as original jurisdiction. ”

                And not just such cases. The constitution says the Supreme Court will have jurisdiction in cases where a state is a party. So theoretically, they could take a case of an individual suing a state on original jurisdiction.

                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.

                Note it doesn’t say that where a state is a party, the federal government or another state must be the other party.

        2. It’s not half as limited as you think. For decades, the Supreme Court has refused to directly take cases that clearly fall under it’s original jurisdiction.

      2. There is already the Federal Circuit Court of Appeals, which is somewhat similar to what you propose (at least in general terms), but it would not be familiar with a trial court-like development of the record. Even if that would work, there should probably be some detailed guidance from Congress (or at least the Supreme Court) beforehand. With the current composition of the Supreme Court, there might even be a political dispute about that.

        1. The Federal Circuit has been a disaster for patent cases. It’s largely been captured by the patent bar some of whom have openly advocated the Federal Circuit ignore the Supreme Court rulings of generally outrageous patent decisions.

          They were given all appeals in all patent cases because the regular circuits didn’t want them and they were deemed too complex and technical.

          There are 672 district judges. It is not hard for some of the parties involved in these issues to find a judge sympathetic to their arguments and if they win an national injunction it handicaps the other side from finding their own sympathetic judge.

          I would suggest instead that trial courts be limited to the parties before them and appeals courts be limited to their geographical boundaries.

          The Supreme Court benefits greatly by having several different takes on an issue rather than one often ideological issue.

    2. Is that not the DC District Court?

  2. That was indeed an interesting hearing.

    I’m sympathetic to the idea of uniform application of federal law nationwide. But that raises the question of organization of the judiciary. In revolutionary times, when people rode by horseback and communicated by snail mail, districts and circuits made sense. But in modern times, why not declare the whole country one district, have only one court of appeals, one circuit? Why don’t all district court decisions (not just injunctions) have nationwide jurisdiction? The constitution explicitly gives Congress the authority to organize the lower courts as they see fit.

    Mr. Lee mentioned a question I would loved to have asked. He said that the courts won’t enjoin Congress. For example, a district court injunction forbidding the filibuster. Could a district court enjoin other district courts from issuing national injunctions? We need to be protected against evil actions by all three branches, not just the executive.

    Finally, not mentioned in the hearing was the authority of the Chief Justice supervising the federal judiciary branch. Can’t the Chief Justice issue an order (akin to a President’s Executive Order), that might instruct all lower court judges to not issue national injunctions?

    1. In the vast majority of cases, you need local and regional courts. Most cases involve disputes limited to a few parties — individuals and businesses in one locale. Not to mention the need to apply different state laws in many of the cases. For most cases, our current system works just fine.
      These latest run of cases present national issues — the President or DOJ comes up with a new policy, and 20 states challenge it on statutory and/or Constitutional grounds. The issue is no different in New York, Illinois or California. Our current system ends up with multiple and often conflicting rulings, waste of resources and delay.

      1. It wasn’t any different under previous administrations where Texas, Mississippi, Oklahoma, etc. would sue in Texas for nationwide injucntion so that any appeal would go to Fifth Circuit.

        1. The Fifth Circuit Court of Appeals is actually located in New Orleans Louisiana.

          1. The 5th may sit in New Orleans, but there territory includes Texas, so they would hear cases on appeal from federal district courts in Texas.

        2. Really?

          42 nationwide injunctions issued under Trump so far,
          20 issued in the entirety of President Barack Obama’s eight years in office,
          an average of just 1.5 per year against Ronald Reagan, Bill Clinton and George W. Bush

          Doesn’t really seem like “everyone was doing it, so why don’t we” numbers.

          1. Orange Man Bad justifies that!

      2. “In the vast majority of cases, you need local and regional courts.”

        Sure, but you don’t need separate circuits with separate precedents to have that. All of the existing courts could stay exactly where they are and serve exactly the same geographic regions. They would just be part of one big circuit.

        1. That would either make en-banc reviews/appeals very difficult, or it would make no difference at all from the existing circuits.

          1. “That would either make en-banc reviews/appeals very difficult”

            Not that hard. Just an expanded version of what the Ninth Circuit already does.

    2. I watched that hearing also. It was interesting.

      Professor Bray got to the crux of the matter. What is the middle ground between ‘NO national injunctions, except by SCOTUS’ to ‘Unrestricted national injunctions from the District Courts’? What guidelines should there be to assess if something is ‘National Injunction worthy’?

      Would love to read thoughts on this question. The hearing was an excellent primer.

  3. Not related to article but I don’t know how else to complain about the change in ads shown on this website. When reading on my phone large anyclip videos block half the readable window. You used to be able to quickly close them but now they play 30-45 second videos before the close ad button appears. Please fix this mess.

    1. Use Brave. It blocks ads quite well.

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