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Ninth Circuit scale back of nationwide injunction against asylum rule a blow to anti-Trump lawfare

Ninth Circuit scale back of nationwide injunction against asylum rule a blow to anti-Trump lawfare

If this signals a restriction on nationwide injunctions by District Court judges, it’s a big blow to the anti-Trump Resistance.

Nationwide injunctions issued by a single federal district judge have thwarted dozens of the Trump administration’s priorities. It’s a rigged game, since the plaintiffs get to choose a favorable venue and can sue repeatedly.

There are 94 judicial districts in the United States; the government could prevail in 93 of them but still lose if that last judge grants a nationwide injunction. The point here isn’t whether the Trump administration is legally wrong sometimes. It obviously is. The point is the administration starts out with a near automatic loss at the  beginning regardless of whether or not it is right.

So it was with the travel order. No one remembers that the Trump administration won in Massachusetts because it made no difference: the plaintiffs won elsewhere and so it was blocked nationwide until the Supreme Court intervened.

Not surprisingly, the government has been trying for two years to get the circuits to limit nationwide injunctions—without much success. But salvation can sometimes come from the bleakest of places: on August 16, a divided panel of the Ninth Circuit narrowed a nationwide injunction against a new Trump asylum rule.

The rule, which was issued last month by the Justice Department and Homeland Security, denies U.S. asylum to most migrants who fail to apply for asylum in a third country they transited through on their way to the United States. For example, the rule denies U.S. asylum to someone from Guatemala who crossed the U.S.-Mexico border without having applied for asylum in Mexico.

The panel decided that the rule should be blocked only within the Ninth Circuit, finding that the district court had “clearly erred by failing to consider whether nationwide relief is necessary to remedy Plaintiffs’ alleged harms.” Judges Milan Smith (Bush II) and Richard Bennett (Trump) voted in favor of this compromise, while Judge A. Wallace Tashima (Clinton) voted against and said he would have affirmed the nationwide injunction in its entirety.

This decision should, least in theory, make it much harder for future plaintiffs to obtain a nationwide injunction within the Ninth Circuit. Yet it is a very limited win for the Trump administration on the immediate policy.

First, Judges Smith and Bennett both suggested that the government had violated procedural requirements and would likely lose the appeal.

The district court found that the Rule likely did not comply with the Administrative Procedure Act’s (APA) notice-and-comment and 30-day grace period requirements because Appellants did not adequately support invocation of the “good cause” and “foreign affairs” exemptions under the APA…We conclude that [the government] [has] not made the required “strong showing” that they are likely to succeed on the merits on this issue. (citations removed)

In waiving notice-and-comment and the grace period, the rule stated that “immediate implementation…is essential to avoid a surge of aliens who would have strong incentives to seek to cross the border during pre-promulgation notice and comment or during the 30-day delay in the effective date.” Whether or not this argument is correct doesn’t really matter, because it keeps losing in court. In a Ninth Circuit asylum case last year Judge Jay Bybee – yes, that Jay Bybeerejected a waiver argument similar to the one government advanced here. Notably, Judges Smith and Bennett did not, like the district court, suggest that the new rule was substantively invalid or inconsistent with existing law – they only mentioned procedural defects.

Second, while the new policy is now going into effect in Texas and New Mexico, it remains blocked in California and Arizona because both are in the Ninth Circuit. And third, the nationwide injunction isn’t even definitively gone: the panel said that the district court could reinstate it if a fuller record shows it is necessary. The plaintiffs have already indicated they will pursue this option.

The litigation followed the familiar pattern. After A.G. Barr published the asylum rule on July 16, an immigration advocacy group in Berkeley immediately filed suit in the Northern District of California (N.D.C.A.), where 13-of-14 judges were appointed by Presidents Clinton and Obama. When in court here, the Trump administration plays the role of the Washington Generals. The Justice Department shows up, goes through the motions, and always loses. The ACLU brings most jurisdiction-flexible lawsuits against the Trump administration in N.D.C.A. because they know they are the Globetrotters there.

A few hours after holding a hearing, U.S. District Judge Jon Tigar issued a 45-page nationwide injunction against the asylum rule. Incredibly, the following three sentences are all that was offered in support of exercising a national veto:

The government’s arguments against a nationwide injunction likewise travel well trod ground. But the Ninth Circuit has “consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis.” While the government disagrees with that ruling, it provides no contrary authority from the immigration context and “no grounds on which to distinguish this case from [the Ninth Circuit’s] uncontroverted line of precedent.” (citations removed)
In short: because I can. But the Ninth Circuit panel disagreed and held that nationwide injunctions should not be granted, even in the immigration context, unless the plaintiffs’ particular interests require such broad relief. This holding is pretty novel. Federal district judges typically cite the need for uniformity in immigration law as justifying a nationwide injunction. At least in theory, this abstract justification is now insufficient on its own.
The panel noted that Judge Tigar’s nationwide injunction was all the more indefensible because a judge in Washington D.C. denied identical relief to a different set of plaintiffs the very same day.

Given how sensible all this is, Judge Tashima’s dissent was truly startling: he suggested that anytime any court finds that a national policy is likely unlawful, a nationwide injunction should remain in place until the case is finally decided on the merits. Only at that point, Judge Tashima argued, can the court decide whether the injunction is overbroad.

If, as the majority and I agree, the government’s failure to meet the first Hilton v. Braunskill  factor —likelihood of success on the merits, because of its failure to comply with the APA—means that its stay motion with respect to the preliminary injunction’s application within the Ninth Circuit fails, it is perplexing to me why that failure does not infect the balance of its stay motion and require that a stay of the nationwide aspect of the injunction also be denied. (citations removed)

Judges Bennett and Smith replied:

Were we to adopt the dissent’s view, a nationwide injunction would result anytime an enjoined action has potential nationwide effects. Such an approach would turn broad injunctions into the rule rather than the exception. Under our case law, however, all injunctions—even ones involving national policies—must be “narrowly tailored to remedy the specific harm shown.”

So at long last, there is binding case law disfavoring nationwide injunctions. And federal judges throughout the West Coast will be obligated to abide by—oh who am I kidding?


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An injunction from a district court should only apply to that district, and not to the other districts, whose judges may not agree with the injunction. Only the Supreme Court should be able to issue nationwide injunctions.

Nationwide injunctions should be where Trump draws that line in the sand and dares anyone to do anything about it.

Trump should refuse any nationwide injunction BUT he should enforce the injunction in the area it was decided. So if a judge in the 9th Circuit issues an injunction than the states covered by the 9th will be covered under the injunction but the executive branch will ignore the injunctions in any other district.

Trump should explain that to the country. That the judicial branch has gone far beyond it’s role in the checks and balances of the Constitution and is actively trying to prevent the executive branch from operating. In effect the judicial branch judges are trying to be President from afar. That he as head of the executive branch is asserting the right of the executive branch to be able to execute the laws of the United States and to run the government.

That he will respect a judicial ruling in the district that it is made but will not enforce any nationwide injunction that a court issues.

Of course I fully expect the left to go bonkers and try to impeach him on this issue but I think it is important to fight over this. Courts should not have the authority to upend the executive branch at will without any check on them. This applies not just to the Trump administration but any President’s administration of any party.

    Milhouse in reply to TheOldZombie. | August 19, 2019 at 1:34 am

    Just curious: did you take the same attitude when a single judge enjoined implementation of DAPA?

      artichoke in reply to Milhouse. | August 19, 2019 at 3:33 pm

      I have to admit this is right, and that was an important event with favorable effects that continue today.

      But the joke that was the 9th Circuit, controlled by one or two districts, well I guess they felt embarrassed. Once is one thing, over and over is another. Either that or we got extremely lucky in the random draw for the members of the 3 judge panel.

To vest the power to grant nationwide injunctive relief against the United States in a single District Court judge is the height of corruption and foolhardiness.

In any case there is only one United States of America. However there can be many potential “Plaintiffs”. To give each Plaintiff a separate shot at a separate judge a chance for a national injuction invites as happened in this case — Judge shopping. One group of Plaintiff’s failed in the District. Enter a second Group in another jurisdicition.

These actions must be treated by the Supreme Court as class actions and subjected to the same judicial scruitiny.

    Ulysses in reply to dystopia. | August 18, 2019 at 5:46 pm

    We must vigilant lest Courts of Law turn into Courts of Kings with District Court Judges ruling be decree. Courts are for resolving a well defined controversy, not legislating.

When I was in law school, a district court’s jurisdiction had a well defined border. So defined, it was drawn on maps. Suddenly in the last few years, lunatic Judges in Hawaii and California have assumed authority over the entire country, in fact they assume authority over the high seas, Mexico, Canada, Libya, the Vatican, Iran and presumably will over Mars. A single district court Judge in Guam presumably could have ordered all armed guards and marshals in the SCOTUS to lay down their weapons immediately.
justice Thomas has spoken of this lunacy often. Clearly the 9th senses something bad coming down the road.

    txvet2 in reply to puhiawa. | August 18, 2019 at 7:14 pm

    “”lunatic Judges in Hawaii and California have assumed authority over the entire country,””

    They can only do so if Congress and the President allow them to. I see that the courts are having fits because Congress has seen fit to endow the executive with so much legislative power, but it never seems to bother them that they have usurped so much of that power unto themselves.

    artichoke in reply to puhiawa. | August 19, 2019 at 3:38 pm

    I think injunctions are the exception, otherwise a judge’s jurisdiction is limited to their district. But that exception isn’t new is it?

    As for your hypothetical of even greater overreach: An injunction stops something. The guards every day have been taking their weapons to do their jobs, for a long time. Can this be affected by such an injunction? Can I be enjoined from eating an ice cream bar or from going to sleep at 10pm? I think there are some limits to the judge’s jurisdiction, that includes new EO’s by the President, and excludes my choice of beer to drink, a matter that is not before a court. They can’t just reach out and grab such a matter.

A significant setback for the fortunes of anti-nativist elements. A baby step to secure civil rights, and, perhaps, mitigate the progress of immigration reform and collateral damage in lieu of emigration reform and equal development.

I’m more cynical. I view this as some judges on the 9th circuit realizing that they advanced a bit too far in their quest for judicial supremacy, and thus making a slight, temporary strategic retreat to consolidate their positions and assess how fast and when future advances in judicial supremacy and policy making can be made.

The simple fact remains, the “least dangerous” branch is usurping the power of the other two branches and showing no indication of know its place in the Constitutional system.

Rare footage of the 9th circuit displaying a modicum of sensible jurisprudence.