Universal Injunctions Are Dead; Long Live Universal Remedies?

Trump v. CASA was important, but it is not clear district courts have gotten the message.

The Supreme Court may have eliminated the district court practice of entering universal injunctions in suits against the federal government in Trump v. CASA, but this is but one step toward reining in judicial overreach by district courts, for reasons I explain in my latest Civitas Outlook column.

A taste:

In a sweeping and compelling opinion by Justice Amy Coney Barrett, a majority of the Court concluded that universal injunctions exceed the scope of the judicial power under the Judiciary Act. As Justice Barrett explained, Congress never granted district courts the authority to enjoin the federal government from taking action against parties not before the court. This is true no matter how egregious or objectionable the government action is.

"A universal injunction can be justified only as an exercise of equitable authority, yet Congress has granted federal courts no such power," Justice Barrett explained. While it is commonly remarked that it is the province and duty of federal courts to "say what the law is," and police the lawfulness of executive branch action, "federal courts do not exercise general oversight of the Executive Branch." Rather, "they resolve cases and controversies consistent with the authority Congress has given them."

For reasons I explain, district courts are likely to continue giving broad relief in some cases--and there are signs that too many district court judges think the answer to executive branch overreach is for the judiciary to respond in kind.

The Court may have trimmed the sails of district court remedial overreach in Trump v. CASA, but there is more work to be done to prevent the spread of an "imperial Judiciary." Just as lower courts took liberties with their equitable authority to issue injunctions, some district courts have been too quick to find litigants have standing to sue, too willing to entertain suits against memoranda and presidential directives before they have been implemented or acted upon, and too ready to issue orders directing all manner of executive branch conduct. The justices have reversed some of the most egregious of these actions, but not enough (yet) to keep district courts coloring within the lines.

In Trump v. CASA, Justice Barrett explained how judges should understand their role in our constitutional republic. For the time being, it seems a great many district court judges prefer Justice Jackson's vision instead.

Comments

[Glaucomatose]

Just as lower courts took liberties with their equitable authority to issue injunctions, some district courts have been too quick to find litigants have standing to sue, too willing to entertain suits against memoranda and presidential directives before they have been implemented or acted upon, and too ready to issue orders directing all manner of executive branch conduct.

This would be more compelling if it included any examples of the sort of thing you're complaining about. Which district courts, which litigants, which orders? Without more, it just comes across as unsupported opinion.

[Stupid Government Tricks]

OK, Robinson Crusoe, what happened to Friday, did you eat him to survive that long? Or did you meet Mr Winkle and get napping lessons?

[I Callahan]

Exactly. Talk about being unwilling to see what's actually happening...

[Glaucomatose]

Oh, I absolutely think there are cases where courts have been much too willing to find standing - but others where they have been too restrictive in it. I suspect Adler agrees, and I suspect you do, too. The question is which cases, as I think this is likely just as loaded and directionally-reasoned a question as any other.

[Incunabulum]

The appellate courts have ruled the government has the authority to take the actions that got it sued and that the district courts overstepped their authority about 80 percent of the time since Trump took office.

So, you know, those things.

[John F. Carr]

Instead of a collection of universal injunctions in the citizenship cases we may have a collection of universal plaintiffs.

[Stupid Government Tricks]

Here's one: https://thebarbell.com/wp-content/uploads/2023/03/mr-olympia-1971-3.jpg

[Randal]

Um this decision has been out like a month. Maybe wait and see?

Also I'd like you to admit that Biden's student load relief should've been implemented for residents of non-plaintiff states.

[Randal]

... at least "in the interim" as Kavanaugh would say.

[ReaderY]

In Lopez, a supposedly watershed decision. the Supreme Court struck down a law criminalizing simple possession of firearms. In doing so, it loudly proclaimed that Congress totally lacks a general police power and cannot regulate personal conduct directly, it can only regulate interstate commerce.

Congress responded with laws that merely added a little bit of lawerly verbiage, regulating simple possession of firearms etc. that had e.g. previously passed through, constituted articles of interstate commerce, etc. Since courts were willing to uphold even the most tenuous connection to interstate commerce as long as Congress said the right magic words, the’ practical effect was so close to the laws struck down in Lopez that decades after the decision, it has become clear that the supposed landmark has made almost no practical difference.

What should we conclude from this? That Congress didn’t get the message?

[Stupid Government Tricks]

That courts don't care about enforcing the Constitution and will accept the flimsiest excuse possible?

[ReaderY]

As Justice Holmes put it, a great deal of what lawyers do is “shoveling smoke.”

A significant body of the Court’s cases have turned out this way - a supposedly epochal decision has turned to mean nothing more than people have to do or word things a slightly different way in order to get what they want.

Fulton v. Philadelphia was a notable example. If hearing tribunal members simply keep everything polite, keep their mouths shut, and don’t express opinions of their own during hearings, they can do exactly what Philadelphia tried to do but failed. Philadelphia’s tribunal members were so opinionated that the Supreme Court concluded they were biased. Keep your mouth shut, and the problem goes away.

This may be similar. You can’t enjoin non-parties. But fill out the paperwork to make your lawsuit a class action lawsuit, and suddenly everyone and everybody is a party. Interpret the class certification requirements leniently, and it may end up being nothing more than a little bit of extra paperwork to accomplish the same thing.

[wvattorney13]

The law is not supposed to work that way. Fulton is a holdover of Anthony Kennedy garbage. The law cannot restrict my rights just because a governmental body does it nicely. That was invented in his own mind.

The law is supposed to grow to teach people how to structure their affairs and how to treat others. The lesson of the civil rights acts, for example, were not a template to show me how to get around admitting black customers by claiming it was for dress code reasons or otherwise. It was to get me to admit black customers. Period. No work arounds and no game playing.

The criticism we get from laypeople is WHEN the law is used in such a fashion; that magic words get us out from doing things.

[ReaderY]

When your right is a right to a hearing by unbiased hearing officers, which is the only right the Fulton Court actually addressed, then yes - as long as the hearing officers conduct themselves in a manner that does not give rise to evidence they were biased, then the presumption of unbiasedness holds, and your right has been satisfied. Politeness certainly helps in that regard.

[wvattorney13]

I think the lesson is that the Court does not take its pronouncements to their logical conclusion because we had a wishy-washy Kennedy, O'Connor, Barrett or Roberts sign on to the initial opinion and decided, in secret at the meeting, not to take the next step.

Those of us on the pro-gun side of the aisle groan continuously at the constant refusal of the lower courts to apply Heller and Bruen. But what have we gotten in the last 17 years since Heller? Just acquiescence by the Court. So who learned a lesson there?

[wvattorney13]

Then you also get Kavanaugh type statements where he admits that your constitutional rights are probably being violated but assures you that it's okay because your kids and grandkids might have them and maybe even you unless you are elderly and sick.

Just wait on us a little longer. Too bad if you aren't an illegal immigrant who gets rulings in your favor in the middle of the night on Good Friday. Your piddling gun rights can wait for a few more years.

[ReaderY]

Where does he say that?

[SRG2]

It is not inherently judicial overreach for the courts to pull back the executive from its own overreach. Who else, after all?

And it's absurd to suppose that the executive can overreach with no recourse.

[Hyronymous]

> there is more work to be done to prevent the spread of an "imperial Judiciary."

I've yet to see the non-hyperbolic explanation of how pausing something for a few weeks, while it's being reviewed for legality, is "imperial", "tyrannical", or otherwise notable. We all lived for decades with the current laws - whether they were valid or not - without society crumbling around us. Delaying implementation of something that upends the accepted lay of the land for the last 50 years, till its gone through a full legal review, doesn't feel like the end of the world to me so how you get from "brief delay to resolve a reasonable dispute - which may go in favor of the Executive" to "unilateral and tyrannical law making by the judiciary" is beyond me.