With both Congress and the executive branch controlled by Republicans, liberal-leaning state governments, lobbies, advocacy groups, and individuals will naturally be turning to the courts to challenge federal government actions. In the last week, for instance, several federal district courts have enjoined President Trump’s executive order on immigration and refugees, with at least two judges (one in the Eastern District of New York in Darweesh and one in the District of Massachusetts in the Tootkaboni-Louhghalam case) purporting to apply their injunctions nationally. (Lawfare has gathered case documents here.) Given confusion in recent days as to the propriety of lower courts issuing nationwide injunctions, it’s worth reviewing how these injunctions have recently been issued, how they are used, and where they stand legally.
The Partisan Composition of the Lower Federal Courts
Even with the likely confirmation of Neil Gorsuch, the federal judiciary will still be an attractive forum in which to bring grievances of this kind. The Supreme Court hears oral arguments—usually leading to a decision on the merits—in only about 70-80 cases per year, so many issues are resolved definitively by the lower federal courts. And the lower federal courts currently have more Democratic than Republican appointees: nine of the thirteen federal courts of appeals have Democratic-appointed majorities among active judges. President Obama had 270 of his federal district court nominees confirmed, out of 678 authorized positions; of the remaining 408 district court slots, there are currently 90 vacancies, and the other approximately 318 active judges are split about 4:1 (by my very rough guesstimate) between Republican and Democratic appointees. (There are also “senior” judges who continue to hear cases at the circuit and district court level, though often with a lower caseload.) The Trump administration will of course start bringing forward nominees for lower court openings, but even with a Republican Senate majority and the filibuster killed for lower court nominees, it will take some time to tip the partisan balance.
Government Criticism of Nationwide Injunctions
The executive branch—whether headed by Trump or previous presidents more supportive of the rule of law—often does not like it when lower federal courts, especially single district court judges, purport to bind the executive nationwide with respect to parties not before the court. The Obama administration, for example, asked the Supreme Court to overturn the nationwide injunction halting the DAPA program (Deferred Action for Parents of Americans and Lawful Permanent Residents). The nationwide injunction was issued by a single district court judge in Texas, at the behest of Texas and other states, and approved 2-1 by a divided panel of the Fifth Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi. The 2-1 decision approving the injunction was affirmed when the Supreme Court, minus Justice Scalia (and also minus Merrick Garland), deadlocked 4-4.
If you are finding Lawfare useful in these times, please consider making a contribution to support what we do.
Critics of nationwide injunctions by the lower federal courts cite the strong incentive of plaintiffs to forum shop (which clearly occurred in the DAPA case and many other instances); the unfairness of a single district judge blocking nationwide a statute or executive policy for up to several years while litigation and appeals drag on; the possibility of conflicting decisions if other lower courts don’t heed the injunction and reach a different result; and, as Amanda Frost puts it, the problem of arresting the development of the law if other lower courts do not weigh in on the issue addressed by a single court, “a problem that should particularly concern the Supreme Court, which prefers to hear and decide cases after they have percolated in the lower courts.” The government often argues that “comity between circuits” should lead lower courts to refrain from issuing nationwide injunctions—the idea being the each federal court should stick within its limited territorial area out of respect for its fellow federal courts in other parts of the country.
Despite these criticisms, lower federal courts have frequently issued nationwide injunctions in recent years—for instance, blocking the Obama Education Department’s bathroom policy for transgender students and enjoining the Obama Department of Labor’s new overtime pay rules. A new paper by Professor Samuel Bray notes that this is a relatively recent phenomena, and one that conflicts with a number of settled doctrines and conceptions about the relationship among courts themselves and between courts, parties, and non-parties.
Bray and others have noted that nationwide injunctions are especially problematic when plaintiffs can successfully forum shop to raise the likelihood of a favorable ruling. Because of the tradition of senatorial courtesy with lower federal court appointments, even Democratic-appointed federal judges skew conservative in red states with Republican U.S. senators; the same phenomenon is seen in reverse in deep blue states. Bray notes that liberal attorneys general and other plaintiffs tended to challenge Bush administration policies in the more liberal federal courts of California, while conservative litigants often chose to challenge Obama policies before the more conservative district and circuit judges of Texas.
Other rules and institutional features can sometimes make shopping for a particular judge possible. The DAPA litigation, for example, was filed by Texas in the Brownsville division of the Southern District of Texas, where there are only two active federal district judges, including one, Andrew Hanen, who was known to be very conservative and had previously publicly criticized Obama administration immigration policies. Hanen ended up getting the case and entering the nationwide injunction. (A counter suit has now been filed in New York—where it was assigned to a Clinton-appointed judge—arguing that the Texas injunction cannot apply nationwide.)
Judge-shopping is harder in districts where many federal district judges sit in the same courthouse, as happens in large cities. But judge shopping is sometimes possible even there. For instance, two very liberal judges sitting in New York City (Jack Weinstein and Shira Scheindlin) have been accused of using a local rule about “related” cases to allow attorneys to steer particular litigation to themselves.
Because the issues about nationwide injunctions issued by the lower federal courts are important and recurring, it may be useful to briefly explain the different ways lower federal courts can issue broadly-applicable orders, and the costs and benefits of these different approaches.
The Federal Rules of Civil Procedure, Rule 23, expressly allows class actions, a type of aggregate litigation where individual plaintiffs represent a class of similarly-situated persons seeking the same type of legal relief. Classes can be and often are national in scope. And the injunctive relief afforded to a successful class suit can be national in scope. This is all legally uncontroversial (although many business groups and others who oppose expansive litigation do not like the existing rules).
There are many protections built into Rule 23. For instance, the rule specifies which types of plaintiffs and claims can be brought as a class action, requires the judge to supervise the adequacy of class counsel, allows and sometimes compels the judge to order notice be given to persons who will be bound by a future decision in the case, and allows immediate appellate review of orders certifying or denying certification of classes.
Rule 65 of the Federal Rules limit injunctions’ effects to “the parties; the parties’ officers, agents, servants, employees, and attorneys; and other persons who are in active concert or participation” with them, if they have received “actual notice” of the injunction. But in a class action, if the defendant is a national executive official (for instance, the head of the Department of Homeland Security) and the plaintiff class is national in scope, these rules do not bar a nationwide injunction.
But litigants often seek the benefits of a nationwide class action without going through the procedural hurdles of actually bringing one. Or even if they file suit as a putative class action, as occurred in the Brooklyn Darweesh case about Trump’s immigration and refugee executive order, they seek immediate injunctive relief before any litigation and decision about the propriety of the class action has occurred.
The lower federal courts have frequently upheld the propriety of nationwide injunctions in non-class actions. The D.C. Circuit, for example, holds that when a lower court “set[s] aside” a federal agency actions under the Administrative Procedure Act, 5 U.S. Code § 706, the ruling entirely vacates the agency action, and an injunction enforcing the decision may have nationwide effect for “plaintiffs and non-parties alike.” Lower courts have frequently approved nationwide injunctions in cases that are neither class actions nor filed under the APA, which arguably provides a statutory nationwide effect.
The Supreme Court has not expressly approved these practices of the lower courts, however. It is well-settled at the Supreme Court level that parties and their agents may be restrained by a court from committing enjoined acts outside the territorial jurisdiction of the court. But may parties—specifically here U.S. government officials who are sued to block implementation of a statute, rule, or other action—be enjoined with regard to non-parties, and also outside the territorial jurisdiction of the court? The Supreme Court has announced that injunctive relief is an extraordinary remedy and “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs”—that is, to the parties only. And the Court has emphasized that injunctions cannot be expanded beyond the parties on the theory that it is necessary to protect non-parties. Nationwide injunctions in non-class suits are also in tension with Rules 23 and 65 of the Federal Rules of Civil Procedure, as noted above. The Supreme Court had an opportunity to revisit and clarify its view of nationwide injunctions in the Texas DAPA case, but issued no opinion after dividing 4-4.
We can expect debate about this issue to be ongoing as lower courts continue to issue nationwide injunctions that benefit nonparties. Events in recent days also indicate that we can expect related debates to heat up about the reach of court orders and corresponding judicial opinions, and about the lawfulness of the federal government refusing to follow both orders and principles announced in opinions. For instance, we may see renewed debate about the propriety of the government refusing to apply a legal principle announced in a given lower court decision to similarly situated parties in the same or a different federal judicial circuit (sometimes called intracircuit and intercircuit non-acquiescence). For a valuable discussion, see this article.
It is possible that, on an issue it deems sufficiently important, the Trump administration may revive the debate that led to the famous Cooper v. Aaron decision—that is, whether the government may refuse to apply to similarly situated non-parties a legal principle announced by the Supreme Court. Reports in recent days about officials violating court orders restraining the Trump refugee and immigration executive order also tee up issues about the power and desirability of federal courts holding executive officials or agencies in contempt. (Professor Nick Parrillo has an excellent recent paper on this issue.) We may see this question arise sooner rather than later, depending on how the U.S. District Court for the Eastern District of Virginia addresses the State of Virginia’s motion to hold the federal government in contempt over its purported refusal to abide by the court’s temporary restraining order forbidding deportation and requiring access to counsel for legal permanent residents detained at Dulles Airport.