High court pauses battle over national injunctions

Conspicuous procedural exchanges between the 9th U.S. Circuit Court of Appeals and a San Francisco-based district judge prompted the nation's high court to intercede and calm the intra-circuit wrangle over the proper breadth of a preliminary injunction that had blocked a Trump administration asylum policy.

On Wednesday evening the Supreme Court issued an order staying the effect of two nationwide injunctions Judge Jon S. Tigar granted in the past six weeks, the second coming after an appellate motions panel in August pared back the original remedy to only apply within the 9th Circuit's boundaries. That panel suggested Tigar could further investigate the need for such broad relief, which the judge said he did before reauthorizing his universal injunction in an order Monday.

"The district court's July 24 order granting a preliminary injunction and Sept. 9 order restoring the nationwide scope of the injunction are stayed in full pending disposition of the Government's appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government's petition for a writ of certiorari, if such writ is sought," read Wednesday's Supreme Court order, from which Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented.

The Court offered no elaboration on what motivated its decision to intervene, or what specific fault it found in Tigar's decisions or the use of nationwide injunctions, generally, which have been increasingly invoked by district courts to hamper immigration policies of both President Donald Trump's administration and that of President Barack Obama.

The order will give effect, nationwide, to a rule that requires immigrants seeking asylum in the United States to have solicited such state-sanctioned refuge from other nations along their migration route. After August's motions panel decision trimmed Tigar's original injunction the rule was applicable outside of the 9th Circuit.

The government appealed the August decision to the Supreme Court and, in a letter to the justices sent Wednesday by Solicitor General Noel J. Francisco, argued authoritative action was needed because the lower court inconsistency had prevented cohesive policy implementation.

"[T]he additional proceedings in the lower courts -- which have resulted in the rule's implementation, cessation, and implementation again in the 5th and 10th Circuits -- highlight the harms to the Executive Branch of relief that extends beyond the parties to the case," Francisco wrote.

Much like it had in August, the 9th Circuit on Tuesday prevented Tigar's order from having nationwide effect, issuing a short order that was signed by only the circuit's clerk, Molly Dwyer. That latest back and forth may have pushed the Supreme Court to act.

"Judge Tigar's ruling reinstating the nationwide scope of the injunction might have convinced a Supreme Court majority that the justices needed to step in now if they thought the judge was going in the wrong direction," said UC Irvine School of Law professor Richard L. Hasen, whose scholarship includes remedies.

Florida State University College of Law professor Michael Morley, who has written skeptically about the use of nationwide injunctions, agreed that Tigar's insistent approach perhaps backfired.

"I think there's a good chance that, if [Tigar] hadn't attempted to re-impose nationwide relief, the court would've let the preliminary injunction take its ordinary course through the judicial system," Morley said.

In a heated dissent, Sotomayor chastised her colleagues for prematurely injecting the court of last resort into a matter the circuit could have managed.

"[G]ranting a stay pending appeal should be an 'extraordinary' act," Sotomayor wrote. "Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal.

The reserve of the seven justices supporting the order leaves for another day any authoritative guidance on the propriety of the increasingly-wielded remedy. Only Clarence Thomas has referenced the practice, in a reproachful concurrence last year.

"[I]t is unfortunate that the stay is granted without explanation, so Justice Sotomayor's sharp criticisms go unanswered," said University of Pittsburgh School of Law professor Arthur D. Hellman, who studies the 9th Circuit.

The stayed injunction will now be battled over the course of the circuit appeal, which is scheduled for argument in December, before a panel -- pursuant to typical circuit practice -- whose members won't be publicly revealed for several weeks.