The twilight of nationwide injunctions?

On Sept. 11, the U.S. Supreme Court handed the Trump administration a temporary victory in its effort to implement a new immigration policy the Departments of Justice and Homeland Security unveiled in July 2019. The aim of "Asylum Eligibility and Procedural Modifications" is to prevent nearly all Central Americans from applying for asylum if they seek entry across our southern border. Under the new policy, applicants are ineligible unless they were denied asylum first in Mexico or another country they may have travelled through on the way here.

U.S. District Judge Jon Tigar in San Francisco quickly issued a nationwide preliminary injunction in East Bay Sanctuary Covenant v. Barr due to the strong possibility that the plaintiffs, legal and social service organizations aiding undocumented persons, would succeed on the merits challenging the controversial new policy. He restored the nationwide scope of the injunction, even after the 9th U.S. Circuit Court of Appeals temporarily limited the order's effect to its own geographic limits. Just two days after Judge Tigar's second order, the Supreme Court stayed both the preliminary injunction and the order restoring its nationwide scope, pending resolution of the government's appeal to the 9th Circuit and the Supreme Court.

In its one-paragraph unsigned order, the Supreme Court offered no reasons for speedily issuing a sweeping stay. The majority ignored Justice Sonia Sotomayor's dissent (for herself and Justice Ruth Bader Ginsburg), opposing the court's precipitous interference with the lower courts. Undoubtedly, the Supreme Court will have to address one of the prime issues -- the legitimacy of nationwide injunctions -- whether in this litigation or a challenge to another administration policy.

The term nationwide (or "universal") injunction refers to orders barring the government from enforcing challenged laws and policies against all persons, not just the plaintiffs at bar or even limited to the geographic limits of the court issuing the injunction. A nationwide injunction is a controversial exception to the usual principles that injunctive relief should be crafted to be no more burdensome on the defendant than is required to remedy the specific harm shown and to provide appropriate relief to the named plaintiffs. As Judge Tigar noted in one of his recent opinions, in immigration matters, many courts have recognized the authority of district courts to make exceptions and enjoin unlawful policies on a universal basis.

The spate of recent nationwide injunctions began in 2014, when 26 states filed suit in the Southern District of Texas, challenging President Barack Obama's Deferred Action for Parents of Americans (DAPA) policy. Only the state of Texas had standing, yet the district court issued a nationwide injunction to protect Texas from the potential risk of financial harm from DAPA beneficiaries travelling to the Lone Star State and applying for driver's licenses, which the state issued below the actual cost of production. The 5th Circuit affirmed, rejecting the Obama administration's position that the injunction against DAPA should apply in Texas only. The U.S. Supreme Court heard oral argument in the case, but affirmed without an opinion in a 4-4 tie after Justice Antonin Scalia's death in 2016.

After the Trump administration started making dramatic changes to immigration policy in early 2017, federal courts in liberal bastions such as San Francisco, Honolulu and Seattle, utilized the scope of the injunction the 5th Circuit approved in the DAPA case as precedent. Courts issued nationwide injunctions against the Trump administration's travel ban, withholding federal funds from sanctuary cities, and revoking Obama's Deferred Action for Childhood Arrivals (DACA) policy. Judge Tigar stopping the new asylum policy is another illustration of the power of just one federal district court judge to bring administration policies to a screeching halt.

With the shoe now on the other foot, the right has criticized the propriety of nationwide injunctions. Notables such as then-Attorney General Jeff Sessions, Attorney General William Barr and Justice Clarence Thomas have taken swipes at nationwide injunctions issued from deep blue territory against their favored policies.

There are legitimate concerns which -- in theory -- are separate from the naked political question of whose ox is being gored. As Judge Tigar noted, nationwide injunctions "have detrimental consequences to the development of law and deprive appellate courts of a wider range of perspectives." Another concern is "the equities of non-parties who are deprived the right to litigate in other forums." In addition, "[n]ationwide injunctions are ... associated with forum shopping, which hinders the equitable administration of laws." Others have raised the fact that nationwide injunctions are inconsistent with the Supreme Court's holding that offensive nonmutual issue preclusion does not apply against the federal government. Nationwide injunctions in effect act as national class actions without going to the trouble of certifying a class under Federal Rule of Civil Procedure 23.

Defenders of nationwide injunctions assert that sometimes they are the only feasible method to afford complete relief to the plaintiffs or to avoid a multiplicity of lawsuits. The nationwide injunction can also quickly protect numerous nonparties who, like desperate asylum seekers walking hundreds of miles looking for safety, have few resources to bring their own lawsuits.

The current controversy is part of the longstanding academic debate over the rightful place of courts, especially federal courts, in our democracy. Are courts designed to just resolve individual disputes retrospectively and stay out of the way of the political branches? Or is it appropriate for courts to limit political authority while declaring the meaning of the law in the bold tradition of Marbury v. Madison and Brown v. Board of Education?

In Trump v. Hawaii, the 2018 travel ban case, Justice Thomas called nationwide injunctions "legally and historically dubious." The Supreme Court's fast action in East Bay Sanctuary Covenant, the asylum case, hints that a majority of the other justices agree. Should nationwide injunctions be banned, we may never know whether it would have been the same outcome had the Supreme Court, with Justice Scalia still on board, assessed the appropriateness of a nationwide injunction issued against an Obama administration policy. Will neutral principles resolve this issue when it comes to Trump administration policies? 