National Injunctions and the Erasure of the Plaintiff/Nonplaintiff Line

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A few days ago the Fourth Circuit decided Hias, Inc. v. Trump, a case about an executive order regulating the resettlement of refugees (h/t How Appealing). In doing so, the court upheld a national injunction. Here is the entirety of the court's analysis of the remedy question:

Finally, the government argues that the district court abused its discretion in issuing a nationwide injunction that encompasses the six non-party resettlement agencies as well as the plaintiffs. The government argues that the injunction is overbroad, because these non-party resettlement agencies could have, but did not, challenge the Order and Notice. We disagree with the government's position.

District courts have broad discretion to craft remedies based on the circumstances of a case, but likewise must ensure that "a preliminary injunction is no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." Roe v. Dep't of Def., 947 F.3d 207, 231 (4th Cir. 2020) (citations and internal quotation marks omitted). A district court may issue a nationwide injunction so long as the court "mold[s] its decree to meet the exigencies of the particular case." Id. (quoting Trump v. Int'l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017)). And a nationwide injunction may be appropriate when the government relies on a "categorical policy," and when the facts would not require different relief for others similarly situated to the plaintiffs. Id. at 232- 33.

We conclude that the district court did not abuse its discretion in issuing a nationwide injunction. The refugee resettlement program by its nature impacts refugees assigned to all nine resettlement agencies, which place refugees throughout the country. Enjoining the Order and Notice only as to the plaintiff resettlement agencies would cause inequitable treatment of refugees and undermine the very national consistency that the Refugee Act is designed to protect.

Two things are striking here. One is that the court treats the scope of the remedy as uncontroversial. Not only is it controversial, and not only has the Supreme Court stayed national injunctions (apparently) because of their scope, but in another decision of the Fourth Circuit a few months ago, Judge Wilkinson laid out a strong case against national injunctions (see pp. 56-70 here, though the Fourth Circuit has granted rehearing en banc).

The other striking point is more important. The court's justification for the national injunction is sufficient to justify a national injunction in every case in which someone challenges the enforcement of a federal order, rule, or statute. To ground the need for a national injunction in the fact that without the injunction, there would be differential treatment between plaintiffs and non-plaintiffs, erases the line between who is and who is not in a lawsuit. It becomes a point of no significance whether someone is represented by a plaintiff, as long as the legal norm being challenged is "categorical"–which is almost definitionally true of law.

There is certainly a logic to this. But it is the logic of thinking of litigation not so much as the resolution of a dispute between the parties, as the resolution of a dispute between a party and a legal norm (i.e., an order, rule, or statute). One could say it's what Frothingham v. Mellon warned us about.

The case is thus a reminder that there are not just two positions–yes, national injunctions are permissible; no, they are not–but also a division in the "yes" position between those who give rationales that try to make the national injunction unusual (e.g., immigration is different) and those who give rationales that would make it typical (e.g., plaintiffs and non-plaintiffs shouldn't be treated differently).

All three of these positions on the national injunction–"yes-typical"; "yes-unusual"; "no"–have been taken in recent decisions of the federal courts. (As I've argued before, I think "yes-unusual" collapses rather quickly into "yes-typical," but I am recognizing that some courts, like some scholars, try to treat the national injunction as a permitted remedy for unusual cases.) Although I disagree with it, the Fourth Circuit's opinion states with helpful clarity and brevity what could be called the "yes-typical" basis for a national injunction.

The choice between these positions will eventually have to be made by the Supreme Court (if not by Congress). Although the administration of President Biden will undoubtedly bring a change in refugee policy, and the political valence of the national injunction is about to shift, the question of proper remedial scope is not going away.

[Note: I edited this post to reflect that rehearing en banc had been granted in the earlier Fourth Circuit decision mentioned.–SLB]

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  1. Isn’t this the “facially” vs “as applied” difference? The executive order applies everywhere, so it makes sense that the injunction does too, unless the ruling only applies to the plaintiffs and no one else.

  2. It will be interesting to see to what extent “automatic” national injunctions are political.

    In particular, Joe Biden has said he’s going to reverse every Trump executive order on his first day in office. Will “automatic” national injunctions against reversing executive orders (at least, those in effect) be granted or will we see injunctions granted or denied based on the source?

    1. It would seem likely that in the world of venue shopping there will be ample opportunity to impede Mr. Biden’s executive orders.
      Stay tuned kids.

    2. I wonder if we’ll see the same kind of deference to Trump’s orders that the courts gave Obama’s when Trump reversed them or will we see a one way ratchet?

  3. Five days after right-wing insurrection, this?

    Unless the first two words from a clinger’s mouth these days are “I’m sorry” or “I apologize,” I do not much care what follows.

    Superstitious clingers get no special privilege in this context.

    Blood on your hands, Conspirators.

    1. Have you any capability to make respectful comments that are relevant or does your acid-reflux ill will permeate your every thought/

  4. Prof. Bray,

    Could we look at national injunctions like class action suits where potential beneficiaries (who in many cases don’t even know there’s a court case), may nonetheless receive some sort of relief if their side wins?

    If so, then national injunctions make sense since an injunction protects all folks who may be harmed.

    1. But a national injunction is not a type of suit, it’s a type of remedy. Such an injunction might be appropriate in a class action suit, but this isn’t one. There are (perhaps inadequate) safeguards in class action suits, to ensure that there really is a defined class, that the named plaintiffs and the lawyers are properly representing them, and so on, in order to prevent abuse. None of that is present here.

  5. None of this will matter soon.

  6. Once it will be of no benefit to Trump, the Court will likely move to crack down on national injunctions. “But if we do that, it will benefit Trump!” has stood in the way of a lot of reforms.

  7. The choice between these positions will eventually have to be made by the Supreme Court

    I don’t see how SCOTUS hasn’t already made that choice in the cited Trump v. Int’l Refugee Assistance Project. There the Court upheld a national preliminary injunction protecting plaintiffs and non-plaintiffs (though it did narrow the scope of which non-plaintiffs were “similarly situated”).

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