Day: February 4, 2017

Sam Bray (and Donald Trump) Make the Case For “Percolation” and Against Nationwide Injunctions

Of late, I have been writing a lot about constitutional consistency. By and large, many scholars who scoffed at Judge Hanen’s nationwide injunction against President Obama’s immigration policy have found a way to support Judge Robart’s nationwide injunction against President Trump’s immigration policy. One person who is rock-solid on this topic is Sam Bray (UCLA). Long before Donald Trump was elected, Sam and I went back and forth about nationwide injunctions. I’ve learned much from him about equity, a topic that far too people actually study before opining on injunctions. His article on multiple Chancellors is a must-read.

Today at Lawfare, Sam reiterated his argument that nationwide injunctions were not proper in Texas, and are not proper in Washington. One argument in particular always struck me as quite persuasive (though not ultimately dispositive): the need for the lower courts to “percolate.” Sam wrote:

A second problem is that national injunctions interfere with good decision-making by the federal courts. The practice of the federal courts is premised on the idea of “percolation”—letting a question be considered by lots of different judges, over time, before it is considered by the Supreme Court. Indeed, when the Supreme Court is deciding whether to hear a case, the criteria include the existence of disagreement among the lower courts.

When a single lower court issues an order controlling policy throughout the nation, it can prevent the resolution of cases in other parts of the country. Thus, a nationwide injunction can prevent the disagreement among courts that is so important to Supreme Court consideration. Worse still, when the court gives a national injunction before trial, the appellate courts might have to decide an important legal question quickly and without the facts that might come from the ordinary legal process. In short, in a world with national injunctions, the Supreme Court will have to decide major questions more quickly, with fewer facts, and without the benefit of contrary opinions by lower courts. That is not a recipe for better decision-making.

In his own insane way, Donald Trump stumbled onto the issue of “percolation” on Twitter:

With respect to the immigration order, some judges issued narrow injunctions, other judges issued medium-sized injunctions, and other judges issued broad-injunctions. Some of the judges are right, and some are wrong. Who knows which are which. Maybe the Boston judge is right, and the Seattle judge is wrong. Maybe narrow relief is appropriate, but not broad relief. But by granting a single nationwide injunction, there can be no percolation, at all.

Indeed, that seems to be the exact litigation strategy at hand: “Let a thousand flowers bloom.” If enough law suits are filed in enough districts, eventually one judge will issue the ruling that challengers wanted: Judge Robart’s nationwide injunction. (In contrast, twenty-five states joined  a single lawsuit in Brownsville challenge DAPA). Thus, there can be no further percolation, as this ruling preempts any other litigation. What else could a Judge in Hawaii, for example, possibly add?

So here we have Trump, in his own way, stumbling on a valid jurisprudential point.

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Judge Gorsuch’s Confirmation Timeline, and SCOTUS Arguments in March and April

According to Senator Grassley, Judge Gorsuch’s confirmation hearing will be held in six weeks. That means the hearing will be held during the week of March 13–barring any procedural delays from members of the Judiciary Committee. After the Committee votes, the full Senate would vote. When will this happen? Precisely when is unclear. Justice Kagan’s hearing wrapped up on June 30, and the Judiciary Committee voted on July 20. The full voted on her confirmation on August 5. The Sotomayor hearing followed a similar timeline. But those are poor examples, because they could leisurely take their time during the summer recess, before the first Monday in October.

Justice Alito’s confirmation–which occurred during a (less, but still) tumultuous time–is more instructive. Alito’s confirmation hearing began on January 9, 2006, and stretched 5 days. The committee vote was held on January 24–ten days after the hearing concluded. Despite a threatened filibuster by Barrack Obama, John Kerry, Joe Biden, Hillary Clinton, Harry Reid and others, Alito came for a full Senate vote one week later on January 31. So from the opening statement of the hearing, until the full confirmation vote, 22 days elapsed.

Assuming a similar timeline applies to Gorsuch’s hearing, his Senate vote would be held on April 4 (give or take). But that date only holds if everything moves smoothly. If the Democrats use various parliamentary delays, like they did with Sessions, a few more days could be added. And, if a filibuster is mounted, that will burn more time until the nuclear option is triggered. Thus, more more likely than not, Justice Gorsuch will not be able to assume office until the second week in April. (I have no doubt he, and his incoming clerks, will hit the ground running).

This confirmation date will still have allowed enough time for Gorsuch to join the Court and hear some remaining cases. Last year, U.S. v. Texas was argued on April 18. McDonnell v. US was argued on April 27.

Yet, on Friday, the Court took a confounding action. At Justice Scalia’s very last conference, on January 15, 2016, the Court granted certiorari in three cases: Murr v. Wisconsin, Microsoft v. Baker, and Trinity Lutheran Church v. Pauley. The briefing in all three cases wrapped up by August, yet as of two days ago, they still lingered in docket purgatory. They were never scheduled for oral argument, and by all accounts, they were waiting for a ninth Justice to resolve what could have otherwise been 5-4 splits. However, the Court scheduled Murr and Baker for March 20, and 21, respectively. (Trinity Lutheran remains unscheduled). Additionally, Gloucester County School Board v. GG was scheduled for March 28. I would expect the vote in this case to be tight, in light of Justice Breyer’s “courtesy” stay. Why not wait a week or two until Justice Gorsuch is in office for each of these cases?

As Tony Mauro noted in a recent piece, the tradition is that a Justice does not consider cases that were argued before he joined the Court. Rather, if the vote ties, the case is re-argued. Again, why not wait a week to avoid the prospect of 4-4 tie, followed by a re-argument the following term? This move does not make sense. Any ideas?


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When Presidents Criticize the Courts, Before and After November 8

In recent weeks, I’ve adopted a new wake-up habit. As I open my eyes, and turn off my alarm, I see that President Trump has tweeted in the early hours of the morning. Today, his tweet hit close to something I’ve writtene a bit about: Presidents criticizing courts.

Trump’s rant about the decision being “ridiculous” is par for his usual bluster. Indeed, the White House’s initial statement called the decision “outrageous,” but that was immediately pared back. The bit about it being overturned is not dissimilar to the Justice Department’s decision to appeal the case, and seek an emergency stay.

What really caused the outrage was Trump’s charge that Judge Robart was a “so-called judge.” As a constitutional matter, the Bush 43 appointee was unanimously confirmed. He is, without question, and Article III judge. But the import of Trump’s comment was that because of his “ridiculous” ruling, the judge was somehow not legitimate. This a common tact from Trump. He lost certain primaries because they were rigged. He lost the popular vote because of illegal votes. Etc. Everything that goes against him must be because of some factors exogenous to the rules.

Here, his comments are once again directed at a judge. Over the summer, he ignorantly charged that Judge Curiel ruled against him because he was Mexican. These shameful and dangerous comments struck at the heart of our independent judiciary, and I roundly criticized them on my blog and in the Associated Press.

Trump, however, is not alone in calling into question the legitimacy of judicial decisions. I dedicate an entire chapter in Unraveled to incidents where Presidents have opined about Supreme Court cases while they are pending. The leading offender in modern history was, unsurprisingly, President Obama. I summarized my findings in a post at the National Constitution Center blog. Here is the (extended) discussion from Unraveled.

NFIB v. Sebelius was argued on March 26, 27, and 28, 2012, stretching Monday through Wednesday. The justices held their conference on Friday, March 30, to vote on the outcome. The following Monday, April 2, during a press conference, President Obama explained the high stakes of the case. He began by assuring us that he is “confident that the Supreme Court will uphold the law” because “in accordance with precedent out there, it’s constitutional.” His initial sentiment is consistent with how the forty-first and forty-second presidents addressed questions about submitted cases.

But he went further: “I think it’s important – because I watched some of the commentary last week – to remind people that this is not an abstract argument.” Putting a face on the case, so it is not viewed as theoretical, the president added, “People’s lives are affected by the lack of availability of health care … The law that’s already in place has already given 2.5 million young people health care that wouldn’t otherwise have it.” He stressed that the “Justices should understand that in the absence of  an individual mandate, you cannot have a mechanism to ensure that people with pre-existing conditions can actually get health care.” This could be seen as keeping with the forty-third president’s remarks, stressing that, “[ w] e’re at war with an enemy, and we’ve got to protect ourselves” while the detainee cases were pending.

But then he went even further than his predecessors when he said it would be “unprecedented” for the Court to invalidate the law: “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” Obama charged with hypocrisy “conservative commentators that for years” argued that the “biggest problem on the bench was judicial activism or a lack of judicial restraint.” The president hoped that “this Court will recognize that and not take that step.”

The very next day, on Tuesday, April 3, the president offered extensive comments in response to a question about whether it “would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress.” He began with what is the normal trope concerning judicial review: “The Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it.” Then came the but: “[ B] ut it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.” To drive the point home, President Obama invoked the jurisprudential bogeyman of Lochner v. New York, a case that has come to epitomize an era when a conservative Supreme Court invalidated progressive laws: “We have not seen a Court overturn a law that was passed by Congress on a[ n] economic issue … at least since Lochner. Right? So we’re going back to the thirties, pre– New Deal.” 5

Next, the president issued a series of admonitions to the Court. He “expect[ s] the Supreme Court actually to recognize that and to abide by well-established precedents out there.” Further, he has “enormous confidence” that “the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.” He added, “So I don’t anticipate the Court striking this down. I think they take their responsibilities very seriously.” Toward the end – in a preview of his remarks in 2015 – President Obama explained that “as a consequence” of his prediction of the outcome of the case, “we’re not spending a whole bunch of time planning for contingencies.” In another foresight of his 2015 comments, the president said that “there is a human element to this that everybody has to remember. This is not an abstract exercise.” These are the most pointed and provocative comments identified in Professors Eshbaugh-Soha and Collins’s 2014 study.

While President Obama would not offer similar comments during the run-up to Hobby Lobby, he shattered his own record in the months and weeks before King v. Burwell was decided. On March 2, 2014 – two days before oral arguments – President Obama gave an interview with Reuters where he said, “In our view, [there was] not a plausible legal basis for striking [the IRS rule] down.” 6 He added, “Look, this should be a pretty straightforward case of statutory interpretation. If you look at the law, if you look at the testimony of those who are involved in the law, including some of the opponents of the law, the understanding was that people who joined a federal exchange were going to be able to access tax credits just like if they went through a state exchange.” Reuters asked if the president had a “Plan B” if the Court ruled against him. Obama concluded with a preemptive strike against an unfavorable decision: “If they rule against us, we’ll have to take a look at what our options are. But I’m not going to anticipate that. I’m not going to anticipate bad law.” The president made similar remarks during an April 8 interview on CNN with Dr. Sanjay Gupta. 7 “If you read the statute, it’s pretty straightforward and it’s pretty clear. So I’m not anticipating the Supreme Court would make such a bad decision.” Again, a decision against him was pre-emptively labelled bad. He added in another interview, “I’m confident in the Supreme Court applying its own rules of interpreting laws [and] will uphold the law. It’s pretty clear cut.” 8

The president also targeted the lawyers who brought this case, saying, “I think this is sort of the last gasp of folks who’ve been fighting against this for ideological reasons.” 9 Obama continued, “If the Supreme Court made a ruling that said the folks who have federal exchanges don’t get the tax credits, what you would end up seeing is millions of people losing their health insurance.” Further, he said, “I don’t think the Supreme Court is going to adopt the arguments of those who are arguing” that subsidies are unavailable on the federal exchange. 10 He noted that he receives “letters every day from people who say … the Affordable Care Act saved my life, or saved my kid’s life because I got insurance. We hear stories about that all the time and I think that will be factored in when the Supreme Court takes a look at this case.”

The president made clear that the Supreme Court would be responsible for people losing their insurance, rather than even entertaining the possibility that the IRS Rule was not authorized by the statute. This philosophy pervaded the Obama administration. A DOJ official familiar with the solicitor general’s strategy explained that another purpose of Verrilli’s “this Congress” remark was “to convey that the Court was on the hook for this. It would be the Court’s decision that extinguished the subsidies. The ‘quip’ was a way of conveying the point that the Court has to take responsibility as an institution for the consequence of that reading.”

On June 8 – 96 days after oral arguments in King v. Burwell, and roughly three weeks before the case would be decided – the president offered more than 600 words about the pending case from the podium of the G7 Summit in Krün, Germany. These remarks are longer and more detailed than any statements identified by Professors Eshbaugh-Soha and Collins’s. Mirroring his comments three years earlier, the president said “that under well-established precedent, there is no reason why the existing exchanges should be overturned through a court case.” Once again, then came the but. “Frankly, [the case] probably shouldn’t even have been taken up.” In other words, the president’s faulted the Court – or at least four justices – for voting to grant certiorari. I could not find any other statement where a president criticized the justices for voting to review a case.

He then turned to the real-world consequences of the Court basing its decision on “a contorted reading of the statute … It means that millions of people who are obtaining insurance currently with subsidies suddenly aren’t getting those subsidies; many of them can’t afford it; they pull out.” Making the point clearly, he said invalidating the IRS rule is “a bad idea. It’s not something that should be done based on a twisted interpretation of four words” in a 3,000-page statute. Driving the point home after a question of what his “Plan B” is if he loses, the president said, “If somebody does something that doesn’t make any sense, then it’s hard to fix.” At this point, the “somebody” referred to the justices voting to invalidate the rule. He concluded that he was “optimistic that the Supreme Court will play it straight when it comes to the interpretation.”

The very next day the president spoke at length about the affordable care Act (ACA) in a prepared a speech before the Catholic Health Association Conference. Although he did not mention King v. Burwell directly, he alluded to the pending decision: “It seems so cynical to want to take coverage away from millions of people; to take care away from people who need it the most; to punish millions with higher costs of care and unravel what’s now been woven into the fabric of America. And that kind of cynicism flies in the face of our history.” 11 Russell Berman wrote in the Atlantic that the unraveled comment “seemed most directed at lawmakers in the Capitol and the justices on the Supreme Court.” 12 If the message was directed at Congress, however, “Obama could easily have waited a few weeks to deliver the speech, if he needed to give it at all. But Obama apparently wanted to begin mounting his case now – and, perhaps, sway any justice who might be having last-minute doubts.”

“Five years in, what we are talking about it is no longer just a law,” the president continued. “It’s no longer just a theory. This isn’t even just about the Affordable Care Act or Obamacare … This is now part of the fabric of how we care for one another.” His comments suggest that not even the Supreme Court should mess with the ACA, as it is “no longer just a law” but something greater. Finally, on June 11, the president added one more message to the justices: “One of the things I try to remind people of – what we do here, what the Supreme Court does, what Congress does – these aren’t just abstractions. These are things that really matter in people’s lives.” 13

Here is the analysis:

Very few presidents have spoken about pending Supreme Court cases after arguments were submitted. Even fewer discussed the merits of the cases. Only a handful could be seen as pre-emptively faulting the justices for ruling against the government. President Obama, however, stands alone in his pointed and directed arguments to the Supreme Court. The forty-fourth president, himself a former constitutional law lecturer, has set a new precedent for ex parte arguments to the Supreme Court.

Court watchers questioned the propriety of these statements. Robert Barnes, who serves as the Washington Post’s SCOTUS reporter, admitted, “I was a little surprised President Obama weighed in again this week, saying the Court probably should not have taken the case.” 14 Tom Goldstein, appellate attorney and publisher of SCOTUSBlog, said the speech “has the real chance to backfire. The justices really don’t like being pressured into something. You start jumping up and down at them and the justices get their backs up.” 15

Supporters of the plaintiffs charged the president was trying to intimidate the justices. “Instead of bullying the Supreme Court,” noted Senator John Barrasso, “the president should spend his time preparing for the reality that the court may soon rule against his decision to illegally issue tax penalties and subsidies on Americans in two-thirds of the country.” Michael Cannon wrote, “Today the president delivered a speech designed to cow the Supreme Court Justices into turning a blind eye to the law.” Jonathan Adler added, “Presidential reticence about discussing pending cases during judicial deliberations is a sensible convention, and I see no good reason to violate it.” 16 The Wall Street Journal editorial board exclaimed, “Mr. Obama must know that it does him no good to lacerate the Justices in public if he’s trying to influence them to come his way.” They closed with idle speculation: “Could it be that legal sources are telling Mr. Obama that he’s about to lose, so he is now beginning to prepare the public for an all-out assault on the Court and Republicans?” 17

Others defended the president’s statements. Walter Dellinger, who served as the acting solicitor general under President Clinton, dismissed the relevance of the comments: “The Justices’ life tenure secures their independence. There is no reason that issues before the court should be fenced off from public debate.” 18 U.C. Irvine law professor Rick Hasen made the point more explicitly – the president should opine on these issue: “By speaking about the issues, the President who has the bully pulpit educates the public on the importance of the Supreme Court, the power that they hold and, in appropriate cases, disagreement with what the Court has done or is likely to do.” 19 Dana Milbank praised the president’s signal to the Court, which he summed up as “You wouldn’t dare.” Milbank explained that Obama’s threat was directed to “five men not in the room: the conservative justices of the Supreme Court, who in the next 21 days will declare whether they are invalidating the most far-reaching legislation in at least a generation because of one vague clause tucked in its 2,000 pages.” 20

It is impossible to know whether Obama’s remarks had any impact on the justices. Supreme Court reporter Lyle Denniston observed three years earlier, “Only [the Justices] will know, though, whether they thought it was appropriate for the President to give them a piece of legal and constitutional advice even as they were studying the issues” 21

President Obama’s comments, though far more artfully phrased that Trump’s, conveyed a similar message: if the Court ruled against the government in NFIB v. Sebelius or King v. Burwell, it would not be because of the law, but some sort of illegitimacy. I offer this analysis in the Epilogue:

President Obama, through his statements made while the ACA cases were pending, injected a new degree of politics into already highly charged cases. (See our discussion in Chapter 27.) On April 2, 2012, days after NFIB v. Sebelius was argued, Obama said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” The next day, Obama repeated that it “would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress.” The president added that he had “enormous confidence” that “that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.”

While many critics accused the president of intimidating the Court, and the chief justice in particular, 14 I think his remarks had a very different effect. He prejudged any decision against ACA as being motivated only by nonlegal considerations: invalidating the mandate would be reckless, rather than careful jurisprudence. That is, there can be no sound, neutral principle on which the individual mandate was unconstitutional. Reasonable minds can and do differ on difficult constitutional questions, but the president’s remarks discredit that debate.

Fast-forward to 2015 and King v. Burwell. The president said there was “not a plausible legal basis for striking [the IRS rule] down,” and he was “not going to anticipate bad law.” He continued, “If the Supreme Court made a ruling that said the folks who [use] federal exchanges don’t get the tax credits, what you would end up seeing is millions of people losing their health insurance.” If the justices determined that the plain text of the statute did not permit subsidies on the federal exchange, according to the president, they would now bear the blame of people losing their health insurance. In later remarks, after the case was argued, Obama said he was “optimistic that the Supreme Court will play it straight when it comes to the interpretation.” The implication is that a ruling against the government would not be straight – that is, crooked, or to borrow a favorite catchphrase from the vernacular of Donald J. Trump, rigged. 15 The president’s decision to target the court, personalize it against the justices, and preemptively polarize their decision delegitimizes this independent branch of government.

Let me repeat the last two sentences again. I wrote them months ago, but they seem especially prescient now.

The implication is that a ruling against the government would not be straight – that is, crooked, or to borrow a favorite catchphrase from the vernacular of Donald J. Trump, rigged. 15 The president’s decision to target the court, personalize it against the justices, and preemptively polarize their decision delegitimizes this independent branch of government.

It is wrong when Trump does it. It was wrong when Obama did it.

In closing, President Trump has glorified Andrew Jackson, often comparing his populist presidency to that of Old Hickory. Trump has even placed a portrait of Jackson in the Oval Office. Perhaps this should bring to mind Chief Justice Marshall’s decision in Worcester v. Georgia, of which Jackson purportedly said “John Marshall made his decision; now let him enforce it.” This statement is almost certainly apocryphal–as the case did not directly involve the U.S. government–but the sentiment persists.

Update: Also my discussion of the same incident from my first book, Unprecedented is on point:

On Monday, April 2, 2012, five days after the arguments— and three days after the Court’s all-important conference on March 30, 2012, when the votes were cast— President Obama made some off-the-cuff comments to the press about the case. Obama said that it would be “unprecedented” for unelected judges to overturn an act of Congress enacted with popular support. Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint— that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step. This statement can be read as calling into question the power of judicial review— that is, the authority of courts to find laws unconstitutional. Professor Andrew Koppelman labeled these “uncharacteristically inarticulate” remarks as “impl[ ying] that judicial review itself was unprecedented.” Obama, a former constitutional law professor, should have been able to do better than this.” However, this was not the import of Obama’s words. Instead, the president was making it clear that he did not see the Supreme Court as a body that should be in the business of striking down popularly enacted laws, especially when no clear precedent compelled such a decision. Of course, Obama’s view was tempered by the vigorous defense his administration provided for the ACA at every level. The former constitutional law lecturer knew quite well that the Court could strike down the ACA within the bounds of the Constitution without reversing any of its precedents, yet he hoped it wouldn’t.

Republicans were outraged by the president’s remarks and accused him of trying to intimidate the justices. Senate Minority Leader Mitch McConnell shot back at Obama: “Only someone who would browbeat the Court during the State of the Union”— referring to the president’s comments about Citizens United—“ and whose administration stifled speech during the health care debate would try to intimidate the Court while it’s deliberating one of the most consequential cases of our time.” McConnell said that “this president’s attempt to intimidate the Supreme Court falls well beyond distasteful politics; it demonstrates a fundamental lack of respect for our system of checks and balances.”

Representative Lamar Smith of Texas was “disappointed” with the president’s comments and noted, “Nothing could be more appropriate for the Supreme Court to decide than whether a bill is constitutional or not. What is unprecedented is . . . the president of the United States trying to intimidate the Supreme Court.” Senator Chuck Grassley added, “President Obama wrongly argued [that] it would be unprecedented for the Supreme Court to strike down a law that a large congressional majority passed. . . . The president of the United States knows better because he is a former constitutional law lecturer.” Senator Orrin Hatch said that it was a “fantasy” to think that “every law you like is constitutional and every Supreme Court decision you don’t is ‘activist.’ . . . Judicial activism or restraint is not measured by which side wins but by whether the Court correctly applied the law.” Mitt Romney chimed in, insisting that striking down the ACA would not be an act of “an activist court— that will be a court following the Constitution.”

McConnell would later tell the Rotary Club of Lexington, Kentucky, that the president “looked at the line that wisely separates the three branches of government and stepped right over it. But what the president did this week went even farther. With his words, he was no longer trying to embarrass the Court after a decision; rather, he tried to intimidate it before a decision has been made. And that should be intolerable to all of us.” While all of the drama was unfolding within the beltway, this presidential versus congressional squabble soon bled over into the third branch of government— the courts. The next morning, on April 3, 2012, Judge Jerry Smith, who sat on the Fifth Circuit Court of Appeals in Houston, Texas, was hearing arguments in a case that involved a provision of the ACA unrelated to the individual mandate.

During oral argument, in an apparent response to the president’s questioning of the power of judicial review, Judge Smith asked a DOJ lawyer if the government agreed that courts could strike down an unconstitutional law. “Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?” Stunned, the lawyer recited that ever since Chief Justice John Marshall’s 1803 opinion in Marbury v. Madison, the courts had this power. Smith was not satisfied with the lawyer’s answer. According to reporter Jan Crawford, Smith was “very stern.”

In a bold move that Professor Andrew Koppelman labeled a “crude political stunt,” Judge Smith ordered Attorney General Eric Holder to personally certify in a three-page, single-spaced letter to the court that he supported the power of judicial review. The judge told the DOJ lawyer, “I would like to have from you by noon on Thursday— that’s about forty-eight hours from now— a letter stating what is the position of the attorney general and the Department of Justice in regard to the recent statements by the president. What is the authority of the federal courts in this regard in terms of judicial review?” Crawford reported that “the other two judges on the panel . . . both Republican appointees— remained silent.”

Mere hours after Smith’s order, the president escalated the tensions by doubling down on a point he had made the previous day. “I have enormous confidence that in looking at this law, not only is it constitutional, but that the court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.” Now Obama was not merely commenting on the scope of constitutional power but also addressing the Court’s “jurisprudence”— that is, the institutional role of the courts in our tripartite system of government. This is the branch that Alexander Hamilton called in Federalist No. 78, the “least dangerous branch.” Obama was subtly telling the Court to respect its place in our democracy and not to subvert the judgments of the elected branches.

Two days later, Attorney General Holder submitted a letter to Judge Smith, certifying that the “president’s remarks were fully consistent with the principles” of judicial review. In a not-too-subtle jab at Smith, Holder cited the opinions of Judge Sutton from the Sixth Circuit Court of Appeals and Judge Silberman from the D.C. Circuit, both of whom had voted to uphold the ACA. White House spokesman Jay Carney later added, “The president believes that the Supreme Court has the final word on matters of judicial review on the constitutionality of legislation. He would, having been a professor of law.”


As well, here is a thread I developed on the topic.

Update 3: President Obama criticized the Court before NFIB v. Sebelius was decided. President Trump criticized the decision after it was made.

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Instant Analysis Nationwide Injunction in Washington v. Trump

On January 30, the State of Washington sought a nationwide injunction to put on hold the President’s January 27 executive order. (I wrote about the irony of Washington’s standing argument here). On February 2, DOJ filed a 34-page brief arguing that there was no standing, the state cannot bring a parens patriae action, the state was unlikely to prevail on the merits, it has shown no irreparable harm, and that any relief must be limited to plaintiff states.

On February 3, after a hearing, the district court issued a nationwide injunction, barring the implementation of the Executive Order.

The PDF, seven pages in length, has only the most threadbare analysis. There is one paragraph describing the procedural background, and another two paragraphs which recite the standards for granting a temporary restraining order. (As a former district court, I recognize copy-and-pasted boilerplate when I see it).

The actual legal analysis stretches across two paragraphs (though the former is conclusory).

There is no real analysis here. The order merely repeats the headers of Washington’s brief. Why are they likely to succeed on the merits? Who knows. Why is parens patriae a valid basis for standing here, even though courts have rejected this principle since Massachusetts v. Mellon (see Virginia v. Sebelius)? No answer. What is the limiting principle if a stated is injured when a federal action is “inflicted upon the operations and missions of [a state’s] public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds”? No clue.

Even in times of conflict, courts have a duty to explain their reasoning through written opinions. This falls far, far short of that standard. Further, unlike the Airport Cases, which were decided in wee hours after the executive order was issued, the court here had several days to think about these issues. Such a momentous decision warrants some analysis.

I’ll close on a delicious note of irony (this section copies from a post I wrote a few days ago).

Two years ago, in Texas v. United States, Washington Solicitor General Noah Purcell urged the 5th Circuit to reverse Judge Hanen’s nationwide injunction, stating that it was overboard. Specifically, the injunction should not extend to states that welcomed DAPA.

The district court ignored these principles. It entered a broad, nationwide injunction, even though the only evidence of harm it cited related to driver’s license costs in Texas. Meanwhile, thirteen Amici States were before the court arguing that we would benefit from the directives, many other States never joined Plaintiffs’ lawsuit and have never alleged that the directives will harm them, and even the vast majority of Plaintiff States offered no evidence that the directives would harm them. By entering a nationwide injunction based entirely on evidence of purported harm to a single state, the district court abused its discretion. See, e.g., Roho, 902 F.2d at 361; Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (“‘[a]n overbroad injunction is an abuse of discretion’”) (alteration in original) (quoting Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991)).

In short, even if the district court’s flawed findings of harm to the Plaintiff States were accurate, those findings could not possibly justify injunctive relief in other States, especially where the amici States stand before this Court asserting that we welcome the immigration directives and expect to benefit from them.

In other words, even if DAPA is unlawful, the injunction should not be extended nationwide. In particular, it should not bind states that “expect to benefit” from the program.

The Fifth Circuit rejected this argument, citing Article I’s and Congress’s demand for a “uniform” system of immigration laws, an injunction must be nationwide.

The government maintains that the nationwide scope of the injunction is an abuse of discretion, so it asks that the injunction be confined to Texas or the plaintiff states. But partial implementation of DAPA would undermine the constitutional imperative of “a uniform Rule of Naturalization” and Congress’s instruction that “the immigration laws of the United States should be enforced vigorously and uniformly.” A patchwork system would “detract[] from the ‘integrated scheme of regulation’ created by Congress.” Further, there is a substantial likelihood that a partial injunction would be ineffective because DAPA beneficiaries would be free to move between states.

So long as an alien could receive DAPA in Washington, nothing would stop him from crossing the (state) border and move to Texas, at which point he would have been entitled to apply to a driver’s license, and thus inflict costs. This analysis is exactly right.

Now, with Trump in office, everything is reversed. Washington seeks a nationwide injunction to halt Trump’s executive order in all states–even those states that want it to be enforced.Texas, I’m sure, “expect[s] to benefit” from the Executive Order. Too bad says Washington–immigration policy must be uniform. Fittingly, Washington cites Texas as the leading precedent.

While the State seeks a nationwide injunction, that relief is appropriate for two reasons: (1) Congress and the courts have emphasized the importance of uniformity in applying immigration policies nationwide; and (2) nationwide relief is necessary to ensure that State residents and those traveling to meet them are not stopped at other ports of entry around the country or interfered with by officials in Washington, DC, on their way to Washington State. See, e.g., Texas v. United States, 787 F.3d 733, 768-69 (5th Cir. 2015) (affirming nationwide injunction to ensure uniformity and provide full relief).

Immigration policy must be uniform, so if the executive order is unlawful, a nationwide injunction is entirely appropriate.

In contrast, the DOJ urged the injunction to be limited to plaintiff state:

Even if the Court were to conclude that the State has satisfied the requirements for a temporary restraining order with respect to some or all of its claims, the Court should not enter the “nationwide injunction” the State seeks. TRO Mot. at 23; see Pl.’s Proposed TRO, ECF No. 3-1, at 3. “[A]n injunction must be narrowly tailored ‘to affect only those persons over which it has power, and to remedy only the specific harms shown by the plaintiffs, rather than’ to enjoin all possible breaches of the law.” Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004). Thus, courts routinely deny requests for nationwide injunctive relief. See Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993) (staying nationwide injunction insofar as it “grants relief to persons other than” named plaintiff); Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105 (9th Cir. 2012) (affirming district court’s refusal to grant nationwide relief).

No go. In its order, the district court expressly relied on U.S. v. Texas, and the need for a uniform naturalization policy, to justify the nationwide injunction.


Not too long ago, professors warned that Texas should not be able to bring its suit in court. Marty Lederman, for example, worried what would happen if states could bring such suits:

For example, Texas argues because the DAPA program allegedly will result in an increase in the number of persons living in Texas, Texas should be able to sue in federal court to challenge the policy because of the money the State will have to spend on law enforcement, education, and medical care associated with the new residents. Even if Texas’s assumptions about population changes were not too speculative to support standing, the basic form of this argument must prove far too much: The federal government does countless things every day that will foreseeably result in changes to various state populations. Can it really be the case that the states therefore have standing to sue to challenge each and every one of those federal actions? As the Solicitor General writes, such a holding “would utterly transform the judicial power. Federal courts would displace the political process as the preferred forum for policy disputes between individual States and the federal government because a potentially limitless class of federal actions could be said to have incidental effects on a State’s fisc.”

I don’t pretend litigators have any duty for consistency. Scholars, on the other hand, who assailed standing in Texas–where there were also certain procedural rights under the APA–but support standing here, should answer to a higher standard.

Update: I discuss the matter further in this thread.

Update: My tweet from November 23 is look pretty solid.

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Writing Opinions in Times of Conflict

In times of conflict, judges at all levels often have to write very quickly to address fast-moving constitutional crises. For example, President Truman promulgated Executive Order No. 10340 on April 8, 1952. Shortly thereafter, the steel mill owners filed suit in the District of the District of Columbia, seeking a temporary restraining order to halt the seizures of their property. U.S. District Judge David A. Pine, promptly held oral arguments, and on April 29, 1952, issued a well-reasoned 14-page decision, finding that the Executive Order violated the separation of powers, which–in effect–issued a nationwide injunction, barring the Secretary from seizing any mill in the United States. That same day, the D.C. Circuit, sitting en banc, stayed the district court’s decision so long as a petition for certiorari was filed with the Supreme Court by May 3. Papers were filed by May 3, and the Supreme Court granted review on May 3. Oral arguments were held on May 12 and May 13, followed by the landmark decision on June 2, 1952.

Even as the Korean War unfolded, and the executive implored the Court that every day went by without steel manufacture would impede the war effort, the Court still took the steps necessary to publish a formalized, written opinion. If the issue was so urgent, why did the Justices bother to publish written opinions, rather than simply state “Affirmed” or “Reversed.” Certainly Judge Pine could have simply issued a paragraph-long temporary restraining order, finding that the challengers were likely to prevail on the merits. Same for the Youngstown majority.

The answer, I think, can be found in Federalist No. 78. According to Hamilton, courts, which are the “least dangerous branch,” have “neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” The thought-through written opinion–which represents not merely the individual judges’ proclivity–is the “judgment.” This reasoning, which can always be subject to criticism, is what provides the decision with legitimacy. There is a reason that even totalitarian regimes hold “show” trials–tinhorn dictators want to convey some legitimacy that the proceeding is in fact more than a political fait accompli.

But sometimes, judges don’t always have time to write an opinion when it actually matters. For example, in Ex Parte Quirin, the Nazi saboteurs perfected an appeal on July 29, 1942. The Court granted certiorari before judgment two days later, with the Court treating the cert-stage filings as if they were merit-stage filings. In a one paragraph opinion–without any reasoning–the Court found that the military commissions were lawful, that petitioner could be tried before that commission, and that the petitioner was not entitled to be discharged by writ of habeas corpus. Three months later, on October 29, 1942, Chief Justice Stone filed a lengthy opinion explaining why the government prevailed (apparently, Justice Jackson’s concurring opinion took some time to develop, thus stretching out the process). But by that point, it was largely a moot issue. The saboteurs had already been executed on August 8.

(The timing of this post will become clear in a subsequent).


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