New SG Filing on "Universal Relief" Under the Administrative Procedure Act

The Solicitor General has filed an application for a stay with the U.S. Supreme Court. The requested stay would be of a judgment entered by the U.S. District Court for the Southern District of Texas, but the real showdown here is between the Fifth Circuit and the Sixth Circuit. Last week they issued directly contrary decisions in cases about the Department of Homeland Security's September 2021 guidance about the enforcement of immigration laws. The issues include state standing, the agency's process for generating the enforcement guidance, the Section 1252(f)(1) jurisdiction-stripping provision, and universal relief (whether via a national injunction or the so-called remedy of "vacatur"). You can read the Fifth Circuit decision here, the Sixth Circuit decision here, and my recent Volokh Conspiracy post on the Sixth Circuit decision here.

This could be the big one--it could set up a Supreme Court decision about universal relief (i.e., relief that goes beyond the parties to the case, not just incidentally, but because the court is purporting to control the actions of the defendant vis-a-vis the world). Now there are various off-ramps that could mean the Court doesn't actually address whether district courts can give national injunctions or a remedy of "setting aside" agency action. For example, the agency could win on the merits, making the remedy question pointless. Or the Court could decide that the Southern District of Texas lacked jurisdiction under Section 1252(f)(1). (This kind of thing has happened several times before when the Court has granted certiorari on questions about "nationwide" relief, including Summers v. Earth Island Institute, where the cert petition was by S.G. Clement.) But if the case runs the procedural gauntlet and gets to the remedy, it would tee up the universal relief question for the Court.

General Prelogar's application for a stay is excellent. I want to add three comments:

1. Massachusetts v. Mellon (with its companion case Frothingham v. Mellon) is cited twice in the application, and it shows just how deep the constitutional principles involved are. These are principles about separation of powers and federalism—that is, principles about the federal judicial role, including the interaction of constitutional and equitable limits and how a court interacts with a promulgated legal norm and with its enforcer; and principles about how under our Constitution the national government relates to individual citizens (i.e., directly, and not just through the states). A failure to heed these lessons has landed us in the position we're in where national injunctions have become pervasive (though only in the last eight years).
2. The application successfully distinguishes Massachusetts v. EPA. But we shouldn't let that case off the hook. I don't think it's an accident that the meteoric rise of the national injunction happened only after the loose talk about standing in the majority opinion in Massachusetts v. EPA. It would be good for the Court to correct that mistake, or at least to make clear that the case is an outlier, just an eddy and not the river.
3. John Harrison has an amazing new paper called Remand Without Vacatur and the Ab Initio Invalidity of Unlawful Regulations in Administrative Law, forthcoming in BYU L. Rev. If you're following this case, you'll want to read it.

Comments

[Krayt]

I am in favor of liberal immigration policies because in an economically free society, the more, the better.

That the parties are warring over the use of immigrants-as-new-voters, one wanting to use their votes to make this society less economically free, and the other party apparently wanting to rely on racist stereotypes to drive those same voters away is troubling, to say the least. So much for that party's attempts, however baby steppish, of the border state Bush dynasty's efforts at pulling in Latinos.

In any case, the legal arguments are also goal-oriented rather than principled.

"The feds should have no constitutional control over immigration!"

"So the states do..."

"NO THE FEDS GET TO CONTROL THE STATES BECAUSE THEY GET TO CONTROL IMMIGRATION."

"That makes no sense."

"It doesn't have to."

[Krayt]

Damned Republicans! Tucker, Trump, Rush radio host inheritee-wannabees.

Just do this: Come to this country and live free...free from dictatorship! Free from corruption! Our police hardly ever just pull you over and take your money or your car!

Come live free and vote for us to keep this land economically free! This is all you dreamed about in your homelands! Not having to get on bended knee for permission, and to give money into the waggling fingers of some local politician.

You can have it all here!

Ellie in Contact, at the end of her Congressional Committee speech: "That remains my dream."

[John F. Carr]

I think this is not the case to strike down universal injunctions because the standing and enforcement discretion arguments are stronger.

[John F. Carr]

...and because the universality argument is stronger for immigration restrictions than for rules governing businesses or federal-aid projects. If Texas has standing to challenge an alien who comes directly from Mexico, Texas may well have standing to challenge an alien who first enters in New Mexico based on the chance that the alien will cross the state line into El Paso.

[Lee Moore]

Obviously the key question here is - why is the Solicitor General referred to as "General Prelogar" ?

The Solicitor General is a species of Solicitor, just as the Attorney General is a species of Attorney. They are not species of General.

Do Judges address District Attorneys : " Yo District ! What do you have to say to that ?"

The sort of folk who are usually referred to as "General" are Major Generals and Lieutenant Generals, which are species of General, not species of Major or Lieutenant. If you hail a three star General as "Lieutenant" you will be on latrine duty for quite a while. Likewise Rear Admirals and Vice Admirals are species of Admiral, so they are called Admiral. They are not kinds of Rear or Vice. If you're going to abbreviate you lose the adjectival qualification and stick with the noun*.

Prof Bray's usage appears to be standard, so there is presumably a reason why in the case of the Solicitor General and the Attorney General, the adjectival "General" trumps the nouny "Solicitor" or "Attorney". But why ?

*Yeah, I know "General" is derived from General Officer, and so has an adjectival derivation when used as a noun, but in "Lieutenant General", once the "Officer" has been abbreviated away, General is a straight noun, and Lieutenant is the qualifying adjective. But in Solicitor General, Solicitor is the noun and General is the adjective.