Judges air skepticism of nationwide injunctions in immigration-related arguments

Two immigration-related appeals argued Monday gave a 9th U.S. Circuit Court of Appeals panel opportunity to engage in a simmering legal debate that's sparked much recent scholarship but little firm case law: whether and when individual district judges may issue nationwide injunctions that altogether halt government action, even as to plaintiffs not before a given court.

Experts critical of such universal relief -- which has repeatedly stymied President Donald Trump's immigration agenda, and often issued from within the 9th Circuit -- argue it thwarts jurisprudential percolation, exceeds courts' authority, and puts challengers at an unfair advantage.

All three members on Monday's panel -- Circuit Judges William A. Fletcher and Eric D. Miller and Senior Circuit Judge Richard R. Clifton -- seemed to credit those criticisms, repeatedly pressing attorneys as to why, even if their plaintiffs' claims were meritorious, they should bind the government's hands as to parties elsewhere.

In the first matter argued -- involving federal grant money the Department of Justice seeks to condition on local governments' assistance with enforcement of immigration laws -- Fletcher suggested optimal judicial resolutions more likely result when various courts and circuits build upon each other's efforts rather than yield once the first nationwide injunction is rendered and affirmed.

"There's the argument that, you know, sometimes courts make mistakes, even the 9th Circuit," Fletcher said as Clifton, seated beside him, pantomimed surprise at the concession.

"On the hypothetical that we might make a mistake, if there's a nationwide injunction isn't the government right to say that forecloses other circuits from going forward, forecloses circuit splits, forecloses all the mechanisms we have for airing different judges' views on something that might be controverted, and then going to the Supreme Court with a circuit split?"

Department of Justice attorney Mark B. Stern articulated another concern: universal remedies create a significant asymmetry disadvantaging the government, which is blocked from its intended course after a single court defeat, even if several other judges have approved it.

"Effectively, the federal government has to win each and every lawsuit, in all the circuits, whereas a plaintiff only needs to win once," Stern said. "It makes no sense."

In the underlying matter, San Francisco sought relief against the government's proposal to withhold congressionally authorized law enforcement grants unless the city gave federal immigration authorities notice of and access to potentially deportable immigrants in its custody. U.S. District Judge William H. Orrick granted San Francisco a permanent injunction that purported to block the new rule's application nationwide. City & County of San Francisco v. Barr, 18-17308.

On Monday, Aileen McGrath, from the San Francisco city attorney's office, argued earlier circuit affirmances of national injunctions -- in, for instance, litigation over the travel ban and DACA -- suggested such relief is not foreclosed.

But Miller said the remedy's theoretical availability shouldn't tempt courts to use it regularly.

"We may not need a categorical rule against it, but I'm struggling to see why it's appropriate here," Miller said. "Suppose Cleveland wants to adopt policies like [San Francisco's], why do you care whether they're going to be eligible for a grant?"

A 9th Circuit panel decided a recent, similar appeal in favor of Los Angeles though not on a universal basis. City of Los Angeles v. Barr, 2019 DJDAR 10164 (9th Cir. Oct 31. 2019).

During argument of the second appeal -- over a policy requiring asylum applicants at the southern border seek refuge from countries along their route -- Clifton cited a paradox about nationwide injunctions the case illustrates: how district judges seeking to wield power beyond their courtrooms can elicit Supreme Court push-back neutering their authority altogether.

In the case, U.S. District Judge Jon S. Tigar in San Francisco twice fashioned a nationwide injunction to protect a group of immigration-aiding plaintiff organizations, eventually prompting the Supreme Court to stay his rulings. Barr v. East Bay Sanctuary Covenant, 2019 DJDAR 8005 (U.S. Sept. 11, 2019).

"My fear is you'll get exactly what we got here, which is the Supreme Court saying, 'We're not going to let a district judge someplace make a rule, and so we wind up with a stay that doesn't even let that court speak to its own territory," Clifton said to ACLU attorney Lee Gelernt. "The nationwide injunction is a two-edged sword."

Clifton also said the challengers' argument for broad relief -- that they train attorneys and litigants around the country involved in asylum matters -- ignored the reality that immigration jurisprudence varies among circuits, something even a uniform, nationwide remedy in this appeal wouldn't do much to change.

"What's the harm in recognizing the different circuits have different precedents?" Clifton asked.

Miller also noted Gelernt's justification could be abused to demand universal treatment of any matter.

"That's a ticket to a nationwide injunction in every case," Miller said. "You just need an organization that says, 'You know, we want to tell people what the law is and it's easier to do that if the law is the same everywhere.'"

On the asylum rule's merits, the judges, including Trump-appointee Miller, seemed skeptical the policy was compatible with relevant statutes and U.S. treaty obligations.