Grapples with nationwide injunctions

Ninth Circuit grapples with nationwide injunctions in 2 cases

Both involve Trump administration immigration policies.

By JOSH GERSTEIN

A federal appeals court panel wrestled Monday with how to handle two different immigration-related legal disputes that triggered howls of protest from the Trump administration after district court judges issued nationwide injunctions to enforce their rulings.

The suits — argued back-to-back in San Francisco before three judges of the Ninth Circuit Court of Appeals — highlight the intense legal controversy that has erupted over the authority of individual judges to block U.S. government policies across the country.

One of the disputes involves legal challenges to a Trump administration directive issued in July that denies asylum to applicants who traveled to the U.S. through a third country and did not seek asylum there.

The other appeal stems from suits the City of San Francisco and State of California filed against a Trump administration policy seeking to put new limits on certain law-enforcement grants. The Justice Department insisted that applicants pledge full compliance with a federal law that purports to force cities and states to issue policies that allow their employees to cooperate with federal immigration enforcement efforts.

The challengers won both sets of cases at the district court level, at least initially, obtaining injunctions that barred enforcement of the new Trump administration policies anywhere in the U.S.

With nearly all of Trump’s policy initiatives under sustained legal attack, the president and his top advisers have railed against nationwide injunctions as a miscarriage of justice.

“Nationwide injunctions … radically inflate the role of district judges, allowing any one of more than 600 individuals to single-handedly freeze a policy nationwide, a power that no single appellate judge or Justice can accomplish; they foreclose percolation and reasoned debate among lower courts, often requiring the Supreme Court to decide complex legal issues in an emergency posture with limited briefing [and] they enable transparent forum shopping, which saps public confidence in the integrity of the judiciary,” Attorney General William Barr declared in a speech last month.

Many of those same arguments were aired in the Ninth Circuit arguments Friday, with all three judges expressing skepticism about the justification for the breadth of the injunctions in the cases.

Some of the judges also approached the issue with humor, alluding to the Ninth Circuit’s reputation for being frequently overturned by the Supreme Court.

Critics say the nationwide injunctions tend to shut down or short-circuit the process of having different appeals courts in different parts of the country weigh in on difficult issues.

“There’s the argument that, you know, sometimes courts make mistakes — even the Ninth Circuit,” Judge Willie Fletcher said during arguments on the police grants case, prompting laughter from the courtroom and his colleagues on the bench.

“I’m shocked, shocked,” Judge Richard Clifton chimed in.

“Me, too,” replied Fletcher, a Clinton appointee, before turning more serious. “On the hypothetical that we might make a mistake, on the nationwide injunction, isn’t the government right? That forecloses other circuits from going forward, forecloses circuit splits, forecloses all the other mechanisms, we might have for airing other judges’ views on something that might be controverted …”

Justice Department attorney Mark Stern argued that nationwide injunctions indeed lead to a short-circuiting of the process.

“It means that the first district court or any district court to issue a nationwide injunction effectively precludes all the others courts from considering the question,” Stern said. “The federal government has to win each and every lawsuit in all the circuits whereas a plaintiff only has to win once. It makes no sense.”

An attorney for San Francisco, Aileen McGrath, called the desire to let litigation play out around the country — sometimes called percolation — an “important interest.” However, she said that in the grant-funding arena, several suits were filed, leading to rulings from four appeals courts.

“Here, percolation has happened,” McGrath said.

Lawyers for San Francisco and California seemed not to be pressing the panel hard to preserve the nationwide injunction, but did plead with the judges not to set a hard-and-fast rule that such injunctions were never appropriate.

California Deputy Solicitor General Joshua Klein said he thought the nationwide aspect of the order was within the district judge’s discretion. “We understand that’s an extremely close question,” Klein said.

The showdown over Trump’s asylum policy generated an even more intense battle on the nationwide injunction front, but all three judges seemed highly skeptical.

An attorney for the American Civil Liberties Union, Lee Gelernt, said the immigrant-rights groups who are pressing the lawsuit deserve a nationwide injunction because they have clients, offices and training events across the country that would not be protected by an injunction confined to the Ninth Circuit.

“Out plaintiffs would be harmed without a nationwide injunction,” Gelernt said.

Judge Eric Miller, a Trump appointee, dismissed the idea that a legal services group should be able to get a nationwide injunction just because they operate in various states.

“That’s a ticket to a nationwide injunction in every case,” the judge said. “You don’t need to certify a class. You just need an organization that says we want to tell people what the law is.”

Justice Department attorney Scott Stewart argued that any injunction in the asylum case should be limited to actual clients of the legal groups who brought the suit. “Any injunction at all should go to bona fide clients of these organizations,” he said.

Last August, a different three-judge Ninth Circuit panel voted, 2-1, to narrow the injunction against the Trump asylum policy to the geographic bounds of the circuit: effectively meaning the border areas of California and Arizona.

However, less than a month later, the Supreme Court effectively green-lighted the Trump policy across the board by lifting the injunction altogether while the litigation continues. Two of the court’s most liberal justices, Sonia Sotomayor and Ruth Bader Ginsburg, publicly dissented.

Clifton, an appointee of President George W. Bush, alluded to those developments Monday as he warned that some nationwide injunctions may make the Supreme Court more likely to leap into a case, rather than letting it and others like it percolate.

“My fear is you’ll get exactly what we got here, which is the Supreme Court saying we’re not going to let one district court judge some place make a rule, so we wind up with a stay that doesn’t even let that court speak to its own territory,” said Clifton. “The nationwide injunction is a two-edged sword, not just chronologically. Everything we’re hearing today, we heard eight years ago from the other side. It’s a serious problem.”

Clifton also joked that he and his colleagues would be content to lay down the law for the whole country, while some have different views.

“We should rule everything, but the Supreme Court hasn’t recognized that yet,” he quipped.