Legal experts applaud 9th Circuit’s paring of nationwide injunction

The 9th U.S. Circuit Court of Appeals on Friday pared back an injunction that had blocked, nationwide, a Trump administration immigration restriction, and counseled lower courts to reserve such a sweeping judicial mechanism for "exceptional cases."

District courts, including several within the 9th Circuit, have drawn the president's ire and evoked scholarly debate by issuing nationwide injunctions -- which some term "universal" or "national" -- that have stalled the administration's agenda, particular as to immigration policy.

Friday's order yields the government a qualified victory and allows the rule, which blocks immigrants from applying for asylum at the southern border unless they previously sought asylum in a third country en route to the United States, to go into effect in states outside the 9th Circuit's boundaries, specifically New Mexico and Texas.

The motions panel rendering the decision comprised Circuit Judges Milan D. Smith, Jr., and Mark J. Bennett, the latter a Trump appointee, and Senior Judge A. Wallace Tashima. All three agreed the injunction properly blocked the rule within the circuit's boundaries, but Smith and Bennett wrote that the district court's universal remedy was "not supported by the record as it stands."

In his ruling last month District Judge Jon S. Tigar cited the circuit's "uncontroverted line of precedent" endorsing nationwide injunctions. Friday's decision makes that caselaw more nuanced.

Smith and Bennett made clear that nationwide injunctions remain appropriate in some instances, citing with approval universal remedies the circuit affirmed in cases relating to contraceptive coverage and sanctuary city funding. But the judges stressed such remedies should be rare. East Bay Sanctuary Covenant v. Barr, 2019 DJDAR 7840 (9th Cir. Aug. 16).

"We have upheld nationwide injunctions where such breadth was necessary to remedy a plaintiff's harm," the order read. "Those are, however, exceptional cases."

"To permit such broad injunctions as a general rule, without an articulated connection to a plaintiff's particular harm, would unnecessarily stymie novel legal challenges and robust debate arising in different judicial districts," the decision continued.

Andrew R. Arthur, a resident fellow in law and policy at the Center for Immigration Studies, said Friday in a phone conversation that the order indicates the circuit's acknowledgment that certain of its previous injunction rulings have gone too far.

"It reflects the 9th Circuit attempting to respond to complaints about national injunctions and to cabin its judges with respect to those," Arthur said.

Federal courts scholar and professor emeritus at the University of Pittsburgh School of Law Arthur D. Hellman added that the guidance will likely dissuade lower court judges from rendering broad relief in future cases.

"It's fair to say the thumb is on the scale against national injunctions, and a court has to show whether they're necessary to remedy alleged harm suffered by the plaintiffs in a given case," Hellman said. "That's not going to be an easy standard to meet."

"I think we will see fewer [nationwide injunctions]," Hellman added. "Judges will have to think about it a bit more."

Tashima dissent argued the injunction's universal reach was appropriate since the rule would "affect asylum applications across the breadth of the southern border."

But Smith and Bennett wrote that Tashima's approach "would turn broad injunctions into the rule rather than the exception," since many challenged administration policies have nationwide application.

University of Notre Dame Law School professor Samuel Bray, whose scholarship the order referenced, has written national injunctions prevent proper judicial development of law. He welcomed Friday's ruling but said it should have gone further.

"It is a good development for the courts to be pressing skepticism of national injunctions because of their bad effects on judicial decisionmaking, but courts need to go further in probing whether there really is a stable middle ground," Bray said. "The opinion presents some of the strongest arguments against national injunctions but it leaves for another day the question of whether district courts should really be giving the remedy at all."

"I do think it is very hard, basically impossible, to make good rules to allow national injunctions sometimes but not all the time," Bray added.

Another scholar engaged in the debate, whose writings the panel also cited, Amanda Frost, a professor at American University Washington College of Law, said the nuanced approach was correct.

"I was glad to see the circuit court both very much embrace the idea that nationwide injunctions can be appropriate, but also embrace the idea they should only be imposed when the circumstances are appropriate," Frost said. "I was pleased at the discussion."