The Volokh Conspiracy
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The new federal district court decision on immigration is getting lots of attention. The decision is from the U.S. District Court for the Southern District of Texas, and it holds that the Deferred Action for Childhood Arrivals (DACA) program is unlawful. As a remedy, the court vacates "[t]he DACA Memorandum and the DACA program" (p. 76) and remands to the agency with respect to new applicants, and it remands without vacatur with respect to those already in the program. The court also grants a permanent injunction against granting new DACA applications. For an initial summary, here is co-blogger Jonathan Adler. The substantive questions are outside my expertise, but a few thoughts on standing and remedies:
- The APA remedial analysis is very thin and is in the conclusion. The court is using the language of vacatur and doesn't tackle head-on the national injunction question (more on that in a moment). And under the APA the same question has to be answered anyway–whether a court should be seen as acting directly on a rule (vacating, or slicing and dicing and vacating), or whether that conception of judicial remedies is foreign to the judicial power (cf., e.g., Jonathan Mitchell on the "erasure fallacy"). How to think about this has been an issue lurking in the shadows in a lot of the Court's recent cases, and it's eventually going to emerge. In the APA context, I think the gold standard for analysis on what it means for courts to "set aside" rules are John Harrison's arguments made here. These issues aren't addressed in the district court's opinion (perhaps because it's constrained by circuit court precedent, but the Supreme Court is not).
- The permanent injunction, issued separately by the court, is available here. It works through the eBay factors quite quickly (e.g., concluding that only the cessation of the program would end the harm to the states, which is not obvious, given that most of the alleged injuries are monetary and could in theory be covered by a compensated injunction in the style of Spur Industries–but that may not have been argued to the court). The court was right, however, to think explicitly about the equities and not to think of injunctions as all or nothing. Here the court didn't think its injunctive remedy had to be identical to its analysis of the underlying legal rights and wrongs–hence the differentiation between people currently covered by DACA and new applicants. (For more on why injunctions shouldn't be thought of as reproducing the contours of the underlying legal right–a misrepresentation of the injunction that has been influential because of One View of the Cathedral, you can read Remedies, Meet Economics; Economics, Meet Remedies.)
- A lacuna in the court's discussion of the injunction: the court never says why it is granting a national injunction.
- The standing analysis aptly shows how incompatible Massachusetts v. EPA is with Massachusetts v. Mellon. "Special solicitude" is a wrecking ball for standing analysis, as can be seen in the meager and attenuated injuries asserted by the states (insisting that the federal government follow federal law, labor market analysis that just counts costs of immigrants and not benefits, etc). This is not to say that there aren't some alleged injuries, including additional spending by the states, but the court never addresses the disconnect between the alleged injuries and the scope of the granted relief. Yet this is a standard part of the Supreme Court's analysis for both Article III standing and equitable standing (see, e.g., Lyons). And this failing is pervasive in the national injunction cases, no matter who is president–remember the national injunction against the Obama administration by the same court in 2015 that rested in part on cost to Texas of printing driver's licenses, and remember the travel ban case out of Washington, where the court enjoined enforcement of the Trump administration's policy as to everyone because of, among other things, an inchoate reduction in sales tax receipts. These small financial costs to the states are incommensurable with the scope and intrusiveness of the requested and granted remedies.
- Speaking of Massachusetts v. Mellon, the court described what it calls "the Mellon bar," and implies that it is a special rule for statutes that doesn't apply to agency action (page 25 & n.20). But that misconceives the argument by the Court in Mellon. The Court in that case is taking a position on the judicial power–the power of the Article III courts not to act on laws, but rather to protect parties against the enforcement of those laws by putting up an equitable shield that protects them. Sutherland's opinion for the Court is about the judicial power and traditional equity, not about a special status for statutes. There's no reason to think a different conception of the judicial power suddenly comes into play once we're talking about rules instead of statutes.
(I revised this post after receiving a copy of the injunction–h/t Josh Blackman.)