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 Bybee – rejected 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)
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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