by Samuel Bray
Lawfare / 2017-02-04 15:22
Last night, a federal district court judge issued an order to temporarily shut down the enforcement of several provisions of President Trump’s recent executive order on immigration. The federal judge sits in Washington state, but the order was specifically issued with nationwide effect. The order is technically a “temporary restraining order,” a kind of provisional order that preserves the status quo for a preliminary injunction.
This is not the first time an individual district court judge has issued a nationwide order stopping the enforcement of a statute, regulation, or executive order. In fact, this practice became increasingly common during President Obama’s second term, as district court judges in Texas issued a series of national injunctions. These injunctions prohibited the Obama administration from enforcing the challenged policies on immigration, gender identity, overtime pay, and other topics. Critically, the injunctions restrained the Obama administration’s actions not only against the plaintiffs who challenged the policies, but against everyone in the country.
There are devastating arguments against national injunctions, which have the same force now as they did when I offered them in a draft paper last year. Consider three.
First, there is the problem of forum-shopping. It is not a coincidence that last night’s order came from a court in the Ninth Circuit, which includes California and has a more liberal reputation. And it was not a coincidence that the national injunctions against the George W. Bush administration were issued by California courts, nor that those against the Obama administration were issued by Texas courts.
That problem is made worse by an asymmetry in the effect of judicial decisions. If a plaintiff seeks a national injunction and loses—if the court upholds the challenged executive order, regulation, or statute—that decision has no effect on anyone else. Other plaintiffs can keep bringing their own challenges. But as soon as one federal district judge finds an executive order invalid and enjoins its enforcement across the nation, the injunction binds the defendant everywhere, at least until it is overturned on appeal. Shop ’til the order drops.
A second problem is that national injunctions interfere with good decision-making by the federal courts. The practice of the federal courts is premised on the idea of “percolation”—letting a question be considered by lots of different judges, over time, before it is considered by the Supreme Court. Indeed, when the Supreme Court is deciding whether to hear a case, the criteria include the existence of disagreement among the lower courts.
When a single lower court issues an order controlling policy throughout the nation, it can prevent the resolution of cases in other parts of the country. Thus, a nationwide injunction can prevent the disagreement among courts that is so important to Supreme Court consideration. Worse still, when the court gives a national injunction before trial, the appellate courts might have to decide an important legal question quickly and without the facts that might come from the ordinary legal process. In short, in a world with national injunctions, the Supreme Court will have to decide major questions more quickly, with fewer facts, and without the benefit of contrary opinions by lower courts. That is not a recipe for better decision-making.
A third problem is that the national injunction is inconsistent with the authority of the federal courts. The U.S. Constitution gives the Supreme Court and the lower courts “the Judicial Power.” Courts decide particular cases for particular parties. They do not decide abstract questions for all possible parties. Related to this is the principle that the federal courts have authority to give traditional equitable remedies. But the national injunction has no basis in the tradition of equity. For the first century and a half of the federal courts, there were no national injunctions.
Many other objections to the national injunction exist (some are raised in this article). It is an end-run around the requirements for class actions. Notably even in a class action, the remedy is supposed to protect the plaintiff class, not other people. National injunctions are also in tension with a number of technical doctrines of federal courts. These include doctrines about collateral estoppel against the government, limited authority for a single district judge to make precedent or “clearly established law,” and the narrow scope of who can bring contempt proceedings to enforce an order.
But those issues are secondary to the more fundamental problems—forum-shopping, decision-making, and the proper authority of the federal courts—discussed above.
To be sure, there is an important argument for the national injunction. Without a national injunction, there can be inconsistent decisions from different courts. One plaintiff might challenge her deportation and win; another plaintiff might sue in another court and lose. Admittedly, this kind of inconsistency is a failure of justice, a failure to give each person his or her due. But our legal system is constructed for fallible human actors. Our legal system makes the bet that tolerating some inconsistency between cases will create better decisions and more justice in the long run.
The executive order on immigration demonstrates acutely the real human cost to narrow orders, to injunctions that protect only the plaintiffs and not everyone else who might sue throughout the country. We cannot ignore, however, that the national injunction is counter to the way our system of federal courts operates. It is at odds with the Constitution’s grant of “the Judicial Power,” which is a power to decide cases for parties, not questions for everyone. And national injunctions are likely to lead to worse decisions, not better ones.
Democrats have good reason to cry foul. The district courts in Texas went far in binding the Obama administration with national injunctions, indeed much further than the district courts in California had gone in binding the Bush administration. But payback is no way to run a legal system. National injunctions are a bad idea no matter who is president.