The Supreme Court’s final oral argument of the term, on Wednesday, will be in the “Travel Ban III” case, No. 17-965, Trump v. Hawaii. I’ll have a post shortly about the merits of the case. For now, I thought it was worth posting a few thoughts about the almost forgotten, but potentially significant, third Question Presented in the case: “Whether the [district court’s] global injunction is impermissibly overbroad.”
“Global” is something of a misnomer—as is the more commonly used adjective “nationwide injunction.” The issue is not, in fact, one of the geographic scope of an injunction. No one disputes that a district court’s prohibitory injunction against a defendant (including a governmental defendant) ordinarily applies “globally”—that is to say, it prohibits the defendant from acting upon the plaintiffs in the specified way wherever they may be found. “[T]he District Court in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction.” Steele v. Bulova Watch Co., Inc., 344 U.S. 280, 289 (1952).
Moreover, it is undisputed that third parties—parties not before the court—can be incidental beneficiaries of an injunction that’s designed to remedy the plaintiffs’ injuries. Think, for example, of a prohibition against assigning plaintiffs to a separate-but-equal school, or a prohibition on emission of pollutants that harms a neighbor’s property, compliance with which will benefit all the nonplaintiffs nearby, too. Beyond that, it’s also undisputed that an injunction can specifically, and permissibly, prohibit the defendant from acting upon such third parties (i.e., nonplainitffs) where that’s necessary in order to provide complete relief to the plaintiffs themselves (once again, think of the desegregation order, or a redistricting order against a state that’s necessary in order to remedy an equal protection or First Amendment violation suffered by the plaintiffs).
The issue du jour, however, is whether a district court has the power to “strike down” a government program across-the-board—to prohibit a government defendant (here, the federal government) from applying the challenged policy to anyone and everyone, including nonparties—even where such categorical or “programmatic” relief is not necessary to afford complete relief to the actual plaintiffs before the court. This question is increasingly arising in challenges to controversial federal executive actions, such as the Deferred Action for Parents of Americans (DAPA) in the Obama Administration; an Obama-era Department of Labor regulation that would have made millions of workers eligible for overtime pay; and the Trump Administration’s efforts to condition eligibility for certain law enforcement grants on compliance by a so-called “sanctuary city” with requests to assist federal immigration officers in removing immigrants from the United States.
In the Hawaii travel ban case, the plaintiffs are the State of Hawaii and three U.S. persons who have relatives from Syria, Yemen, and Iran seeking immigrant or nonimmigrant visas. The trial court’s injunction, as modified by the court of appeals, prohibits government officials from implementing Proclamation 9645’s bans on permitting the nationals of seven countries (Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen) to enter the United States against all covered aliens except those who lack “a credible bona fide relationship” with any person or entity in the United States. That is to say, the injunction protects potentially millions of persons who are not plaintiffs in the case and who (arguably) lack any relationship at all with the plaintiffs. The third Question Presented is whether the district court had the power to issue an injunction of that breadth.
The government says no. It invokes the common doctrinal adage that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs” (Califano v. Yamasaki (1979)), and argues that the plaintiffs’ purported injuries would be fully redressed by an injunction limited to the identified, excluded relatives of the individual plaintiffs and to the prospective students, employees and guests of Hawaii’s colleges and universities. The injunction, on this view, is invalid as to “numerous other aliens abroad to whom respondents have no connection whatsoever.”
I am not going to go into much detail here about the merits of the “global injunction” question, which have been extensively debated in a series of recent articles by scholars such as Sam Bray, Amanda Frost, Zayn Siddique, and Howard Wasserman. It suffices here simply to identify the principal arguments against such injunctions, of which three are most prominent (and all of which are described in greater detail in Bray’s article):
The first argument is that because there is no “case or controversy” between the federal defendant and the nonplaintiffs who benefit from an injunction that is unnecessary to confer full relief on the plaintiffs—no case or controversy because those nonplaintiffs are not parties to the suit—a district court lacks any Article III authority to issue such relief. Sometimes, this Article III argument is put in terms of the actual plaintiffs only having “standing” to seek a remedy for their own injuries (and, in a class action, for injuries to other parties nominally before the court whom they represent).
The second argument is that even if such an injunction of that scope would be constitutional, a district judge lacks affirmative authority to issue it because Congress, in the Judiciary Act of 1789, conferred on the federal courts jurisdiction over “all suits ... in equity” and, according to the Supreme Court, such equitable jurisdiction extends only to application of “the principles of the system of judicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries.” Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318 (1999) (internal citation omitted). Accordingly, the relevant question (at least according to the Grupo Mexicano majority) is whether the relief in question “was traditionally accorded by courts of equity.” The Court concedes “that equity is flexible; but in the federal system, at least, that flexibility is confined within the broad boundaries of traditional equitable relief,” and therefore precludes “a type of relief that has never been available before.” (The four dissenting Justices in Grupo Mexicano, by contrast, accused the majority of relying upon “an unjustifiably static conception of equity jurisdiction,” noting that because the Court has long “defined the scope of federal equity in relation to the principles of equity existing at the separation of this country from England,” it had “never limited federal equity jurisdiction to the specific practices and remedies of the pre-Revolutionary Chancellor.”)
According to Bray and other critics of “global” or “programmatic” injunctions, the pre-1789 Chancellor never exercised such broad remedial authority, nor anything analogous to it—and therefore Congress did not confer such authority upon federal district courts when it gave them the power over suits “in equity.” Those on the other side of the question, by contrast, insist that such relief is sufficiently analogous to pre-1789 practices or, at the very least, is a reasonable extrapolation of the principles of pre-1789 equity. In particular, defenders of the practice might point to dicta from the Supreme Court that courts of equity “may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.” Virginian Railway v. System Federation, 300 U.S. 515, 552 (1937); see also Trump v. IRAP, 137 S. Ct. 2080, 2087 (2017) (the purpose of interim equitable relief “is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward,” and in awarding a preliminary injunction “a court must also “conside[r] ... the overall public interest”).
Third, opponents argue that even if courts have jurisdiction to award such relief, they should be deeply reluctant to do so for various equitable reasons, including, most prominently, to deter forum-shopping, to encourage “percolation” of the legal question among various courts, and to prevent the federal government from being bound across-the-board by one, aberrant trial court decision even where the government prevails before the majority of courts (akin to some of the reasons why the Court held, in United States v. Mendoza (1984), that offensive, nonmutual collateral estoppel does not apply against the federal government). Thus, for example, even the court of appeals that most recently affirmed a “nationwide” injunction in a "sanctuary city" case acknowledged that “[i]n light of [the] concerns with limiting the input of other courts and with forum shopping, nationwide injunctions should be utilized only in rare circumstances.”
With that background in place, I wanted to focus here upon four interesting aspects of the “global injunction” question as it arises in the Trump v. Hawaii case to be argued on Wednesday.
1. First, in its decision last June in the “Travel Ban II” case the Supreme Court itself acted in a way that’s inconsistent with the view that such non-plaintiff-focused injunctions are beyond the constitutional and/or statutory powers of federal courts (Bray’s principal arguments). The government there made exactly the same arguments it makes here about the limits on the courts’ equitable remedial powers, and the three dissenting Justices agreed that the injunctive relief cannot be “more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” The six-Justice per curiam opinion of the Court, however, declined to stay—and thus left in place—the preliminary injunction there with respect to (in Justice Thomas’s description) “an unidentified, unnamed group of foreign nationals abroad” who had no (established) relationship with any of the plaintiffs in the cases before the court, even though “[n]o class has been certified.”
Of course, that holding, in an interlocutory proceeding without the benefit of oral argument or full merits briefing, probably will not stop the Court from holding otherwise in the new case (or in some other case, such as a sanctuary cities case) if it is determined to do so. Even so, it does mean that if the Court were inclined to hold that courts lack Article III and/or statutory jurisdiction to enter such injunctions, it would have to acknowledge that it permitted the district courts to act without such jurisdiction in the Travel Ban II case—which was not a “drive-by” jurisdictional ruling, seeing as how both the SG and the dissenting Justices specifically addressed it. Accordingly, the Court might be more inclined to hold that whereas courts do have the constitutional and statutory jurisdiction to issue such injunctions, they should exercise their equitable authority to do so only in narrowly defined circumstances.
2. If the Court does reach the question, and if it does not hold that district courts lack jurisdiction to issue such injunctions, it is by no means clear that the balance of equitable considerations counsels against such injunctions, at least in a fairly narrowly defined category of cases such as those we have seen in recent years—namely, cases involving challenges to federal policies that the Supreme Court itself is very likely to resolve in short order.
I think a large measure of what's going on in these cases is something such as this:
The federal government announces a very controversial policy. It’s immediately challenged—often by several or numerous plaintiffs in different courts. Everyone involved knows, or reasonably predicts, that the Supreme Court will resolve the merits of the question soon—i.e., not in several years or a decade, but within a Term or two (although of course this prediction might turn out to be wrong). And everyone, including the Justices, also knows that once the Court rules, its decision will as a practical matter have the same effect as a “programmatic” injunction (something I discuss further in Point 3, below): either the Court will declare that the policy is lawful, or everyone (not only the plaintiffs themselves) will benefit from a ruling against the USG. The decision for the trial court in crafting an injunction, then, is simply to determine what the status quo should be for the few months during which the question is resolved in multiple courts, leading up to the Supreme Court decision: Should the plaintiffs in the case before the court enjoy protection from the practice that thousands or millions of others—most of whom do not have the knowledge, wherewithal or resources to sue—do not have (with all of the administrative confusion and complication that might attend such a dual-track regime)? Or is it more equitable—in “the overall public interest” (Trump v. IRAP)—to have a singular national practice in place during the few months in question? Professor Bray reports that between 1935 and 1937, for instance—a period in which the court had not yet begun the practice of “global” injunctions—there were approximately 1600 injunctions issued against implementation of the processing tax in the Agricultural Adjustment Act, presumably in addition to other court decisions in favor of the government. If, as Bray argues, there is no other choice than this because of an absence of non-plaintiff-based remedial jurisdiction, so be it. But if courts of equity do have the power to impose more systemic, "global" injunctions—with the prospect of Supreme Court affirmance or reversal within sight—why would anyone think that thousands of lawsuits, and countless different resolutions, is an optimal state of affairs in the meantime?
Of course, there is significant value in having several courts (especially courts of appeals) opine on the question, especially if it arises in different factual contexts in the various cases. As the multiple iterations of the travel ban litigation have shown, however, “global” injunctions do not prevent such “percolation” in these cases: courts will continue to issue decisions, even after one or more district courts have entered “global” or programmatic injunctions.* And to the extent the government believes that a district court’s decision is an outlier, or is otherwise unlikely to survive eventual Supreme Court review, and that there would be real harm caused by a cessation of the practice during the few months until the Court reaches a decision on the merits, it can always do what it did in these and other recent cases—namely, ask the Supreme Court itself to stay the injunction during the interim. Whether or not the Court grants such a motion, there will be national uniformity during that short period, one way or the other.
3. This is, perhaps, the most important—or at least one of the most interesting—aspects of the scope-of-injunction question in the Trump v. Hawaii case: If the Court chooses to say anything about it, it will almost certainly be in dicta—or, at most, it will opine on the question in a way that will have no practical impact in the Travel Ban litigation itself.
There are basically two possible resolutions of the merits of the case. On the one hand, the Court might rule that the Proclamation is lawful, in which case any and all injunctions against its operation will be vacated, and there will be no need to determine the proper scope of those injunctions.
Or, the Court might rule that the Proclamation is unlawful, either because there is no statutory or other authorization for it, under 8 U.S.C. 1182(f) or otherwise (i.e., it’s ultra vires), or because it is prohibited (at least in part) by the ban on national-origin discrimination in 8 U.S.C. 1152(a)(1)(A), and/or because it violates one or both of the Religion Clauses of the First Amendment. And if that is how the Court resolves the merits, Executive branch officials presumably would cease enforcing the Proclamation across the board, even as to non-plaintiffs, regardless of the scope of any or all particular district court injunctions.
To be sure, a Supreme Court opinion does not itself protect parties not before the Court as a matter of law: If the defendant harms such other, similarly situated persons, by refusing to apply the Court’s holding to them, it would not thereby be in contempt of the Court’s (or any court's) order. (In Cooper v. Aaron, for example, the Little Rock School District was not held in contempt, or otherwise sanctioned, because it disregarded Brown. The Court gave the Board a stern lecture about obligations to comply with the results of Court decisions—but that was it.) Even so, once the Supreme Court acts to enjoin the government in Case A, its decision serves the same practical function as a “universal” injunction in real and potential cases B through ZZZ (apart from the entirely hypothetical question of contempt sanctions), because it will have stare decisis effect in all future cases involving other similarly situated plaintiffs. Accordingly, 9999 times out of 10,000 (at least!), the governmental defendant who loses before the Supreme Court applies the Court’s holding to other parties, as well, despite the absence of a judgment requiring it to do so.
Accordingly, even if a particular district-court injunction ought to be (or must be) limited to what is necessary to fully remedy the plaintiffs in a given case, a Supreme Court decision that executive conduct is unauthorized or violates the Constitution ought to have the practical effect of bringing that conduct to a halt, full-stop (assuming, of course, that we have an Executive committed to abiding by the Court’s legal conclusions, and not merely the Court’s judgments).
In light of this, I think the Supreme Court will likely only reach the third Question Presented in Trump v. Hawaii, regarding the proper scope of the trial court injunction, if it decides to do so notwithstanding the absence of any practical impact in the case itself, in a passage of its opinion in which it would reproach district courts for abusing (or going beyond) their equitable jurisdiction. If so, the Court’s expectation would be that such a reprimand would have an in terrorem, or admonishing, effect on trial court practice. (It wouldn’t be the first time the Court did such a thing. In Rodriguez de Quijas v. Shearson/ American Express, Inc. (1989), for example, the Court wrote that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions”—in hopes that such a pronouncement would bring a halt to the phenomenon of lower courts “anticipatorily overruling” Supreme Court precedents that were widely perceived to be no longer supported by five or more Justices (the most famous and celebrated of which was Judge John Parker’s decision in West Virginia v. Barnette to disregard the Court’s then-recent ruling in Gobitis, in (correct) anticipation of the Court’s own overruling of Gobitis). As far as I know, the admonition in Rodriguez de Quijas servd its intended function: lower courts have generally abandoned "anticipatory overrulings.")
4. Finally, even if the Court were to address the scope of the injunction in Trump v. Hawaii, it would not necessarily have to reach the question that’s been of such controversy lately—namely, whether a court can prohibit a government from acting against nonparties where such relief is not necessary to confer full relief on the plaintiffs—because one of the Respondents-plaintiffs’ arguments is that such “global” relief in this case is necessary to fully remedy the plaintiffs themselves. They invoke at least two variations of such an argument.
First, the State of Hawaii claims that it “cannot identify in advance precisely whichforeign nationals may wish to join or visit [its] institutions,” such as its colleges. Accordingly, it is necessary to prohibit application of the Proclamation against all aliens covered by the Proclamation in order to ensure that Hawaii is not denied the benefit of visits from any of those who would otherwise come to those institutions.
Second, if the Court were to hold that the Proclamation violates the First Amendment because it would never have been promulgated but for President Trump’s campaign promise to keep all Muslims out of the United States (more on that in my next post), an injunction limited to the aliens with relationships to the plaintiffs themselves would, according to the plaintiffs, fail to “remove the stigmatic harm that respondents suffer based on ‘the simple enactment’ of the Government’s policy.” I assume the theory here is that even if such stigmatic harm, standing alone, might be insufficient to establish the individual plaintiffs’ Article III standing (because it would not distinguish them from all other Americans—or at least all other Muslim-American U.S. persons), it nevertheless remains a real injury that would not be remedied by a cabined, plaintiff-specific injunction.
The government denies that the first of these alleged injuries would be sufficient to support the broader injunction, and offers a couple of other reasons for the Court to condemn the breadth of the injunction (see p.30). I’m not going to assess the merits of the arguments in this post. My point here is simply to note that if the Court were to hold for the plaintiffs on this ground, there’d be no need for the Court to opine on the “injunction that’s unnecessary to remedy the plaintiffs” question.
* To be sure, in the absence of programmatic injunctions, there might be incentive for some affected parties to bring additional actions within the jurisdiction of courts of appeals that would be more likely to approve the government’s policy—and if conflicting appellate decisions (as opposed to, say, dissenting opinions) are thought to be of great assistance to the Court, that would be a factor counseling against such broad injunctions, albeit not (in my view) a very compelling consideration.