Remarks as Prepared for Delivery

Thank you, Dean Cass. Thank you also to the Administrative Conference of the United States (ACUS), George Washington Law, and the ABA Section of Administrative Law for inviting me to speak today. I also want to thank ACUS Vice Chair and Executive Director, Matt Wiener, who also recently spoke at the Department of Justice’s Summit on Modernizing the Administrative Procedure Act.

Today’s topic of nationwide injunctions is both important and timely. Many observers have commented on this issue with a focus on legal and policy concerns, and you will hear from a number of them later this morning, including my DOJ colleague, Beth Williams. What I want to focus on are the practical consequences of these injunctions’ inconsistencies and overreaches – both for the government and for the courts – that occur when a court goes beyond what is necessary for complete relief to the actual parties before it. It seems to me that the Supreme Court is going to have to address the problem.

Let me start by explaining what gives this problem its urgency: the exponential increase in the issuance of nationwide injunctions. Though they are coming from a relatively small number of district judges, the volume and frequency of nationwide injunctions is stunning. It is no longer a once-a-decade, thorn-in-the-side of the Executive Branch. While the Attorney General has taken a principled stand against all such nationwide injunctions, there is a practical difference between a trickle and a tsunami. Our country has crossed a new threshold, where nationwide injunctions have become almost a routine step in a regulation or policy’s lifecycle. In the most recent example just last week, a single district judge in the Middle District of North Carolina enjoined nationwide the U.S. Citizenship and Immigration Services’ “unlawful presence” policy for visa overstays.

But nationwide injunctions are a relatively recent phenomenon. The first in-depth academic analysis, in the Harvard Law Review, concluded that, prior to 1963, there are no examples of nationwide injunctions. Even those who dispute this conclusion have pointed to only about a dozen potential examples from the first half of the 20th century — in stark contrast to the countless party-specific injunctions issued against the federal government during the New Deal era.

In any event, whether nationwide injunctions date to 1963 or 1939, their frequency today is unprecedented. According to the department’s best estimates, 12 nationwide injunctions were issued against the George W. Bush administration in eight years, and 19 nationwide injunctions were issued against the Obama administration, also in eight years. So that is a 58 percent increase in the Obama years, as the trend gained steam.

During the current administration, federal courts have issued at least 55 nationwide injunctions in just three years. That is a rate of nearly 18 nationwide injunctions per year. To put it another way, nationwide injunctions are being issued at over 12 times the rate as in the George W. Bush administration.

And any assertion that there have been more unlawful policies to challenge is belied by the Justice Department’s considerable success in having so many of these nationwide injunctions stayed or reversed on appeal, including in the litigation over the so-called “travel ban,” where the Supreme Court ruled in the government’s favor and vacated the nationwide injunctions. As Justice Thomas wrote in his concurrence in that Trump v. Hawaii decision, nationwide injunctions “are beginning to take a toll on the federal court system.”

So what is that toll? I will address four real examples that will illustrate some of the practical problems nationwide injunctions present.

The first example comes from CAIR v. Trump and Barr v. East Bay Sanctuary Covenant. The Department of Homeland Security (DHS) issued an interim final rule denying asylum to aliens who did not first seek protection in a third country through which they traveled and where protection was available. One case was filed in D.C. and another in the Northern District of California. The four organizations who sued in California were not even subject to the rule.

On July 24, 2019, the district court in D.C. denied the plaintiffs’ motion for a temporary injunction.

Later that same day, the district judge in San Francisco issued a nationwide injunction blocking enforcement of this same DHS rule as to anyone anywhere in the United States.

At that point, DHS was bound in D.C. by a ruling in California, even though the D.C. district court sided with the government the very same day. Put another way, litigants who had lost in DC were awarded relief anyway by a judge in a different court 3,000 miles away.

The government moved for a stay pending appeal in the Ninth Circuit, and the appellate panel stayed the injunction outside of the Ninth Circuit.

The government then sought a Supreme Court stay of the injunction while the case worked its way through the lower courts. But after briefing was complete before the Supreme Court, the California district court doubled down — entering an order restoring the nationwide scope of its injunction. So a single California district judge — at odds with a prior D.C. district court ruling, and going beyond what the Ninth Circuit had previously done — set a nationwide rule contrary to the one the Executive Branch had set. That is peculiar, to say the least.

Fortunately, at that point, the Supreme Court intervened to stay the nationwide injunction altogether pending eventual resolution of the case. After two months of interference with the asylum policy, the preliminary injunction was removed.

Let me turn to another example: litigation over policies concerning military service by transgender persons and individuals with a history or diagnosis of gender dysphoria. In 2017, nine individuals (and three organizations) challenged a Presidential Memorandum on the subject in the Western District of Washington. Similar challenges were also brought in the Central District of California, Maryland, and D.C. I will leave it to you to assess why the plaintiffs filed in those particular courts. Before long, all four district courts issued nationwide injunctions.

In February 2018, Secretary Mattis announced a new Department of Defense policy, but the district courts in Washington, California, and the District of Columbia refused to dissolve their nationwide injunctions. So the government pursued expedited appeals in the Ninth and D.C. Circuits, and sought Supreme Court relief as well. The D.C. Circuit reversed the district court’s denial of the motion to dissolve, and then the Supreme Court granted a full stay of the nationwide injunctions from California and Washington that had been entered within the Ninth Circuit. That ended three of the four nationwide injunctions.

For nearly a year, however, the Maryland district court declined to even rule on the government’s motion to dissolve its nationwide injunction. Even after the government had obtained relief from three nationwide injunctions, the one from the Maryland court remained in place. Again, a district judge had in effect set a national policy, even after the Supreme Court had lifted a similar injunction elsewhere. More than a month after the Supreme Court granted its stay, and only after the government sought mandamus relief from the Fourth Circuit, the Maryland district court finally stayed its nationwide injunction. Only then — more than a year after Secretary Mattis announced the new policy — was the Department of Defense finally able to put its policy into place.

If these two examples were not problematic enough, the most recent example of inconsistencies between courts in different jurisdictions involves the “public charge” rule at issue in DHS v. New York. Federal law and long-standing federal policies provide that an alien who is likely to become a “public charge” is not admissible. In August of last year, DHS finalized a rule clarifying the definition of “public charge.”

Soon thereafter, district courts in California and Washington State issued injunctions against the DHS public charge rule, with one of them being nationwide. The Ninth Circuit stayed both those injunctions. But the Ninth Circuit’s reversal of the injunctions did not allow the rule to take effect, because two other nationwide injunctions had been issued by district judges in Maryland and New York.

Then the Fourth Circuit stayed the Maryland district court’s injunction. So two courts of appeal had lifted lower court injunctions. But again, DHS could do nothing, because the outstanding nationwide injunction previously entered by the district judge in New York effectively overrode the contrary orders of not one, but two circuit courts of appeal — the Ninth and the Fourth.

And yet the Second Circuit refused to intercede, denying the government’s motion to stay the last nationwide injunctions. So even though the Ninth and Fourth Circuits had said that injunctions were not warranted, a court in New York directed that injunctive relief nonetheless would be applied in the Ninth and Fourth Circuits, and everywhere else.

This situation necessitated that DOJ seek emergency relief in the Supreme Court. Just two weeks ago – on Jan. 27 – the Supreme Court granted a stay of the New York nationwide injunction. Justice Gorsuch, in his concurring opinion, aptly described this strange state of affairs: “a single judge in New York enjoined the government from applying the new definition to anyone, without regard to geography or participation in this or any other lawsuit.” Letting one lower court direct relief in other jurisdictions that had rejected the very same relief would have been a strange way to run a legal system, had the Supreme Court not stepped in to fix it.

So as a fourth and final example, I wanted to turn to the ultimate risk of competing injunctions that direct opposite outcomes, which cannot both be met. The well-known Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) cases highlight this issue. DACA was an Obama administration policy to allow certain illegal aliens who had come to the United States as children to apply for prosecutorial discretion from deportation and for other collateral benefits. When the Obama administration sought to expand the DACA policy to provide DAPA, Texas and 25 other states brought suit in the Southern District of Texas to block implementation of DAPA. The Texas district court issued a nationwide preliminary injunction that was upheld by the Fifth Circuit and affirmed by an equally divided Supreme Court.

Consistent with that ruling, in September 2017, the Trump administration announced that it would end the original DACA policy. But then more than ten lawsuits challenged this termination and sought to block the repeal. District courts in New York and California granted nationwide preliminary injunctions against the administration’s rescission of DACA, and a D.C. district court vacated the rescission nationwide as well. So we have the peculiar scenario of both the Obama and Trump administration each having been blocked — one from implementing and one from repealing fundamentally similar programs.

In the DACA case, after the Ninth Circuit affirmed the California injunction, the Supreme Court then granted review. Oral argument was heard this past November, and we are waiting to hear from the Supreme Court. But the upshot of all of this to date is that a few lower courts have forced the Trump administration to spend more than two years implementing, nationwide, a discretionary enforcement policy that it had repealed, after different lower courts and the Supreme Court had barred the Obama administration from implementing a materially indistinguishable discretionary enforcement policy it had wanted. Whatever you think about the particular policies at issue, is that how our system is supposed to work?

As these examples illustrate, not only do nationwide injunctions allow a single district judge to wield a nationwide veto against federal policies, they also — and just as worrisome — create discord among courts. Nearly one-third of the nationwide injunctions issued in the last three years came from courts in California. Conversely, in two-thirds of the states, no nationwide injunctions have been issued at all.

What these examples that I discussed tell us, especially with the increased frequency of district judges issuing nationwide injunctions, is that ensuring consistency and coordination in the federal court system is becoming a bigger challenge. Why is that? Perhaps a standard concern might be that of litigants forum-shopping, at least in part, because federal courts are divided into 94 judicial districts, and responsibility for individual cases falls on approximately 600 active district judges and perhaps another 450 senior district judges nationwide. Or perhaps this phenomenon is connected with newer or less experienced judges, as more than two-thirds of the nationwide injunctions issued during the current administration came from district judges appointed after January 2009.

At least one Supreme Court justice has focused on the forum-shopping concern. Justice Gorsuch wrote in his recent concurrence in the DHS v. New York case, that “[b]ecause plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide.” If one plaintiff loses, another can try his luck. Yet, if the government loses once, the enforcement of a law is brought to a screeching halt nationwide. Plaintiffs therefore have virtually unlimited bites at the apple, but the government must run the table to prevail, at least unless – and until – the Supreme Court addresses the case.

In wrapping up, I want to suggest that this practice of district judges conferring legal benefits on non-parties to whom other judges had denied relief, and enabling transparent forum-shopping for nationwide rulings by litigants, breeds cynicism and disrespect for our vital institutions of the law. Of course, this is not to say that district courts must agree with one another all the time. But they should not in effect nullify one another’s decisions in an asymmetric way, as the nationwide injunctions I have discussed are very different from most legal rulings that address only the parties actually before the court.

Which takes me back to where I started: “It has become increasingly apparent,” in the words of Justice Gorsuch, that the Supreme Court “must, at some point, confront these important objections to this increasingly widespread practice.”

Perhaps that will happen soon. In January, the Supreme Court granted certiorari in another closely-watched case in which a nationwide injunction was issued, Trump v. Pennsylvania, out of the Third Circuit. The Court will review the Third Circuit’s affirmance of a nationwide preliminary injunction that blocks exemptions for religious and moral objectors to the contraceptive-coverage mandate promulgated under the Affordable Care Act. In addition to the underlying merits issues, that case will provide the Supreme Court with a chance to confront the mushrooming phenomenon of district judges issuing nationwide injunctions with regard to parties who are not before them.

So today’s conference is indeed timely, and I hope our next speakers — and all of you here today — will advance constructive solutions to the problems presented by inconsistent and overreaching nationwide injunctions, which will enable our government and the judiciary to function better. Thank you.

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