On Friday, the Department of Justice heads to the 27th Floor of the Dirksen Federal Building in downtown Chicago to defend its August 2017 decision to withhold federal funding from “sanctuary” cities. There, the DOJ will argue to a three-judge panel of the Seventh Circuit Court of Appeals that a lower court erred in ruling that the U.S. attorney general lacks the authority to condition grants on Chicago agreeing to provide federal agents access to jails to question criminal aliens and to notify the Department of Homeland Security before releasing aliens from custody.
On the merits, the DOJ should lose. As I explained earlier this week, Congress did not provide the attorney general this authority. Nonetheless, City of Chicago v. Sessions offers the DOJ an important opportunity to challenge a dangerous practice of relatively recent advent: granting a nationwide injunction in a local dispute. In the case, the nationwide injunction issued by semi-retired district court judge Harry Leinenweber enjoined the federal government from withholding grant funds, not just from the Windy City, but from all sanctuary cities throughout the United States.
This Is a Bad and Increasingly Frequent Practice
Leinenweber’s decision is not a one-off. Last week, in its comprehensive exposé, “DACA Question: Should Judges Use Local Cases to Halt National Orders?,” The New York Times noted that judge “William Alsup of the Northern District of California in San Francisco, used a local case to impose a nationwide stop on Mr. Trump’s order to end a program that protects young undocumented immigrants in the United States.”
The DOJ announced on Tuesday that it will seek immediate review of that decision before the U.S. Supreme Court, bypassing the intermediate Ninth Circuit Court of Appeals. The Supreme Court has already reversed a nationwide injunction from a federal district court judge in Hawaii that barred enforcement of Trump’s travel ban, so the DOJ appears hopeful that the justices will do so again.
However, these cases are but the most recent examples of the now-increasing practice of granting nationwide injunctive relief. Using nationwide injunctions began with the Obama administration’s governance by pen and phone, and continued with the ensuing erasure by the ideological opposites guiding the Trump administration. Judges on both sides of the political spectrum have been issuing nationwide injunctions “as a tool to combat perceived executive overreach.”
But conservatives dedicated to the rule of law reject this approach, seeing nationwide injunctive relief a tool of judicial activism. When the government’s lawyer takes to the podium on Friday morning, the DOJ will push the appellate court to, at a minimum, limit the lower-court’s injunctive relief to the party before it—Chicago.
Here, expect the DOJ attorney to parrot some of the remarks Attorney General Jeff Sessions made during a speech to the Heritage Foundation last year:
Judges have the solemn responsibility to examine the law impartially. The Judiciary is not a superior or policy-setting branch. It is co-equal. Those who ignore this duty and follow their own policy views erode the rule of law and create bad precedents and, importantly, undermine the public respect necessary for the courts to function properly. This is especially problematic when district courts take the dramatic step of issuing activist nationwide injunctions—orders that block the entire United States government from enforcing a statute or a presidential policy nationwide. Scholars have not found a single example of any judge issuing this type of extreme remedy before the 1960s. But today, more and more judges are issuing these lawless nationwide injunctions and in effect single judges are making themselves super-legislators for the entire United States. We have nearly 600 federal district judges in the United States—each with the ability to issue one of these overreaching nationwide orders.
That makes the need for judges to stick to the law even more important. A single judge’s decision to enjoin the entire federal government from acting is an extreme step, and too often, district courts are doing it without following the law. Exercising this awesome power because of a political disagreement is all the more unacceptable. The Constitution gives judges no right to veto a President’s actions because they disagree with him on policy grounds.
Sessions is correct, but understated. Nationwide injunctive relief exacerbates the already prominent practice of forum shopping—filing a lawsuit in a friendly venue—and places too much authority in a single judge. Further, the immediate effects of a nationwide injunction force the Supreme Court to enter the fray sooner, and without the benefit of a methodical development of legal thought, to the detriment of the high court’s decision-making.
Courts Should Adopt the Bray Principle
But platitudes and prudential principles will only go so far. The question remains: Is nationwide injunctive relief available? That is the issue the Seventh Circuit will face on Friday, and eventually one the Supreme Court must resolve.
In resolving this issue, the courts would be well-served to adopt the view of University of California at Los Angeles School of Law Professor Samuel L. Bray, as laid out in his December 2017 Harvard Law Review article. Bray concludes:
A federal court should give a plaintiff-protective injunction, enjoining the defendant’s conduct only with respect to the plaintiff. No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction. This rule, if adopted by the courts or by Congress, would alleviate the forum-shopping problem. It would restore the percolation of legal questions through different courts of appeals, allowing each circuit to reach its own conclusion pending resolution by the Supreme Court. And it would nearly eliminate the risk of directly conflicting injunctions.
In an email interview, Bray shared the constitutional basis for his view: “Article III gives the federal courts the ‘judicial Power,’ which is a power to decide cases for the parties, and give remedies for the parties. Once a curt has resolved the case between the parties, and remedied the harms to the plaintiff, there is nothing left to do. There is no Article III power to give remedies protecting non-parties; they are not before the court.”
Under the Bray Rule, then, if Chicago prevails on the merits it would be entitled to an injunction preventing the federal government from pulling grants from Chicago, but other sanctuary cities would still risk losing their funding. Those cities would need to file a separate suit or join to file a class-action suit.
A class action differs, though, because the outcome binds all members of the class. As Bray explained, “With a national injunction, if one plaintiff wins there is a remedy for everyone, but if the same plaintiff loses there is no effect. It’s like the case never happened. By contrast, the class action has the right symmetry: win or lose, the result binds the entire class.”
Bray’s analysis is sound. The Constitution’s Article III establishes the constitutional limits of the federal judiciary and, as a matter of constitutional jurisprudence, nationwide injunctive relief cannot withstand scrutiny. While a legal system based on “Heads, I win; tails, it’s a Mulligan” might provide good odds when your political opponent resides in the Oval Office, the better bet is on the rule of law.