The Fifth Circuit Made Me Do It

The latest national injunction

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Another national injunction, in another case called Texas v. United States, and again there's hand-wringing by the judge who issues it. The judge indicates that he has serious reservations about the propriety of national injunctions, but he considers himself constrained by Fifth Circuit precedent. And so, because federal immigration law needs to be uniform, there's a national injunction. You can read the opinion here. For the scope of the injunction, pages 151 to 156 are the relevant part. Brief observations (with no. 3 being the big one):

First, this is an untenable situation. Very consequential decisions, setting policy for the entire federal government, are made without the judges making them even defending the remedial scope of their decisions as being correct–rather, the scope of the injunction is defended on the basis of circuit court precedent.

Second, the Biden administration needs to be more aggressive in going after the national injunction. Prudential arguments are not enough, and if the SG's office doesn't succeed in stopping the national injunction, it will stop most of what the administration tries to do (just like the end of the Obama administration and the entirety of the Trump administration).

Third, we need to rethink from the ground up the law of administrative remedies. For all the debate about the relationship of "vacatur" and "remand," we missed the part that was really questionable. It wasn't remand, it was vacatur. The misconception that judges act on rules or statutes is the conceptual mistake that drives a lot of national injunctions. For example, on p. 156, the court says:

Specifically, the Court enjoins (1) Section B of the January 20 Memorandum, and (2) the sections from the February 18 Memorandum entitled "Civil Immigration Enforcement and Removal Priorities" and "Enforcement and Removal Actions: Approval, Coordination, and Data Collection." (Dkt. No. 1-2 at 4–8).

From any kind of traditional perspective on equity, this is just baffling. The court enjoins a section of a memorandum? People get enjoined. Injunctions protect people from people. Or require people to do things. And, as codified in FRCP 65(d)(2), injunctions can apply to people who act in concert with the people who are enjoined–not to texts that act in concert with the texts that are enjoined.

It matters what the injunction is and what it's supposed to do, because–as John Harrison has shown–the remedies under the APA are supposed to be the ordinary remedies. There is no "set aside" remedy–that reference isn't even in the APA section on remedies.

So, a cursory proposal: In the administrative context–

  1. injunctions should be used for protection: they should protect plaintiffs (or plaintiff classes) from the enforcement actions of government officers;
  2. when the problem is not with end-of-the-line enforcement, but rather is upstream, such as a failure in the process of creating a rule or policy, the proper remedy is not an injunction but mandamus, which has a different logic and is focused not on the protection of the plaintiff but on the officer's performance of a legal duty;
  3. the fact that mandamus has its own limiting principles, such as the need to show a clear violation of a legal duty, means that some close to the line violations will not be remedied;
  4. point three is a feature of this proposal.

NEXT: The Case for Accepting Afghan Refugees

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  1. If the cops can sue a pile of money, why can’t aa judge enjoin a memo?
    It’s all fantasyland anyway.

    1. That $20,000 was acting suspiciously, we had to take it into custody. But if the owner is innocent we’ll return the $10,000…we mean $20,000.

    2. In personam
      In rem
      In ducum epistulam principis

      1. Sic transit gloria mundi

        1. Victoria concordia crescit…oh, nevermind. Arsenal sucks.

  2. Very good point that injunctions are against people not things…unless the honorable judge wants to place the memo in contempt for not changing its words?

    At a theoretical level I agree with proposals 2-4 but I think that mandamus would be just as fraught. What’s a “clear violation” to one judge might be murky to another.

    Maybe it would be better if Congress set up a special procedure for certain administrative law remedies, like a three judge panel system in DC with a fast track appeal to SCOTUS

    1. “Maybe it would be better if Congress set up a special procedure for certain administrative law remedies, like a three judge panel system in DC with a fast track appeal to SCOTUS”

      OK, but maybe they can postpone the effective date of the act for five years, so they won’t know whether they will be in office when the law kicks in. That way they can legislate through a Rawlsian veil of ignorance (as opposed to the regular ignorance in which they usually legislate).

  3. To what extent are judicial remedies within or without Congress’s power to legislate ?

    At first sight the judicial power seems to be limited to deciding Cases and Controversies – ie “Freddy wins, Johnny loses, we’re off for our afternoon nap now.”

    But “the judicial power” doesn’t seem to be defined explicitly, so I imagine if Congress passed a law saying “no injunctions except like this….., no orders except like this…. etc” the courts might say “thanks for your opinion, but none of your business, you can’t tread on the judicial power, that’s a matter for us.”

    Or maybe Congress could do this for the courts it creates, but not for SCOTUS.

    How does it work ?

    1. Article Three, Section Two gives the impression of Congress having some say over the subject matter jurisdiction of federal courts, but not personal jurisdiction or other aspects of “the judicial Power”:

      “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; [with a list of personal jurisdiction grants].”

    2. Congress has broad powers to constitute the courts and their jurisdiction, including the creation and limiting of remedies. A declaratory judgment is a creation of Congress under the declaratory judgment act. Congress has also passed anti-injunction acts such as the ones that prohibit courts from using its power to stay state court proceedings except in very narrow circumstances or the ones prohibiting pre-enforcement injunctions against tax collection. Congress also has the power under the exceptions clause, subject to a very limited carve-out for habeas proceedings announced in Boumediene v Bush, to deprive the Supreme Court of appellate jurisdiction over various matters.

      1. “prohibiting pre-enforcement injunctions against tax collection”

        You just know Congress would make *that* a priority. Protecting the revenuers.

        On a serious note, such laws seem to operate on the principle that you have to pay your taxes *even if the tax is unconstitutional,* so long as you can demand the money back later.

        Per contra, I’d say that if a tax is unconstitutional, it’s not a tax at all, but utterly void, and need not be paid at all.

  4. First, this is an untenable situation.

    I’m curious, were you making that argument during the Trump years, attacking every single nationwide injunction against his Administration?

    Second, the Biden administration needs to be more aggressive in going after the national injunction. Prudential arguments are not enough, and if the SG’s office doesn’t succeed in stopping the national injunction, it will stop most of what the administration tries to do (just like the end of the Obama administration and the entirety of the Trump administration).

    No, actually, the fact that it was consistently done against Trump means that it should be consistently be used against the current Democrat Administration, and any other Democrat ADim.

    When the next GOP Admin comes in, if we want to end all the nationwide injunctions that would be great. But what you do to others, you absolutely deserve to have done to you

    1. Yes, I made this argument repeatedly during the Trump years.

      1. Professor Bray…Thank you for engaging with VC Readership. May I ask a question about point 2:

        …when the problem is not with end-of-the-line enforcement, but rather is upstream, such as a failure in the process of creating a rule or policy, the proper remedy is not an injunction but mandamus, which has a different logic and is focused not on the protection of the plaintiff but on the officer’s performance of a legal duty

        Could you briefly speak to how the logic of mandamus is different, but might yield the same outcome? I am following the rest of your post (like it, very informative), but am not quite following that mandamus point.

        1. I’d like to echo this request for someone to give a 101 on the distinction here.
          I never took remedies, so while I can guess, but I’m not super clear on the nuance here either.

      2. Great, I’m glad you’re not a hypocrite.

        The reality remains that the Democrats used this extensively during the Trump years, and so justice and a sense of fair play require it be done to them, too.

        For those who don’t care abotu justice and fair play, tit for tat is generally the best response in an iterated prisoners dilemma, such as life. Because even people who don’t believe in justice and fair play, can amend their behavior because it’s costing them more than it’s worth

        1. “so justice and a sense of fair play require it be done to them, too.”

          Two things:

          1) you’re just kind of describing revenge, not really justice and fair play. If something is always bad, like Sam posits national injunctions are, then continuing something bad to hurt your enemies is neither just nor fair. It just adds more injustice and unfairness to the world.

          2). National injunctions were also common during the Obama years…so you’d have to admit that it was totally fair to do to Trump.

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