In a series of posts, I will discuss several of the arguments raised by the DOJ in its first appellant brief before the DOJ. I note that I filed a brief in the District Court on behalf of Cato, and (in all likelihood) I will also file one in the 5th Circuit.
In this initial post, I will discuss a topic I’ve addressed several times before–whether the district court was correct to issue the nationwide injunction (see here, here, here, here, here, here, and here).
First, the government asserts that Judge Hanen’s nationwide injunction was a “manifest abuse of discretion” because it needs to be narrowly tailored to provide relief to the plaintiffs.
In these circumstances, a nationwide injunction is a manifest abuse of discretion. An injunction “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979); Lion Health Servs., Inc. v. Sebelius, 635 F3d 693, 703 (5th Cir. 2011); see also 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).
It’s of course true that an injunction should be no more burdensome than necessary, but the precedents cited do not support the government’s claim of a “manifest abuse of discretion.” Califano involved a nationwide class, so that case is not very helpful.
The most direct case would be Meinhold, but that citation is not persuasive. In this case, Meinhold was discharged from the Navy for being gay. (This was before “Don’t Ask Don’t Tell”). In 1992, Judge Hatter for the Central District of California first found that the discharge violated Meinhold’s procedural rights, and ordered that he be reinstated. So far so good. In a subsequent case, decided *only three months later* while the first case was on appeal, Judge Hatter found that the policy banning the exclusion of gays and lesbians from the military violated the Equal Protection “component” of the 5th Amendment. (The opinion was only 5 pages!). At the end of the court’s opinion, Judge Hatter issued a nationwide injunction:
The Department of Defense is permanently enjoined from discharging or denying enlistment to any person based on sexual orientation in the absence of sexual conduct which interferes with the military mission of the armed forces of the United States.Meinhold’s discharge from the United States Navy is rescinded.
On September 30, 1993, the court issued this order:
It is further Ordered, Adjudged and Decreed, that the Department of Defense and its agents, servants, employees and those persons in active participation and concert with it, be, and hereby are, Permanently Enjoined from discharging, changing enlistment status or denying enlistment to any person based on sexual orientation in the absence of proven sexual conduct—if such conduct is proven to interfere with the military mission of the armed forces of the United States.
I suspect the government sought a stay from the 9th Circuit (which I could not find a copy of) and it was denied, so the Solicitor General sought a stay from Circuit Judge O’Connor. On October 29, 1993 (roughly a month later), the Supreme Court without recorded dissent entered this stay:
The application of the Solicitor General for a stay, presented to Justice O’CONNOR and by her referred to the Court, is granted in part. It is ordered that so much of the order of the United States District Court for the Central District of California, No. CV 92-6044 TJH (JRx), filed September 30, 1993, as grants relief to persons other than Volker Keith Meinhold is stayed pending disposition of the appeal by the United States Court of Appeals for the Ninth Circuit. See Heckler v. Lopez, 463 U.S. 1328, 104 S.Ct. 10, 77 L.Ed.2d 1431 (Rehnquist, J., in chambers), motion to vacate stay denied, 464 U.S. 879, 104 S.Ct. 221, 78 L.Ed.2d 217 (1983); id., at 881, 104 S.Ct., at 222, (Stevens, J., dissenting in part). The request for a stay of the portion of the injunction prohibiting the Government from maintaining records pertaining to Meinhold is denied. It is further ordered that the Government can file, under seal, any such documents pending the final outcome of this litigation.
The facts of the Meinhold case do not help the government. This case was brought by one servicemember, challenging his dismissal, and seeking his reinstatement. The court went way overboard, and enjoined the DoD from enforcing the policy against anyone. In order to effectuate the relief Meinhold sought, the scope of the relief would be to reinstate Meinhold. That’s it. No one else was implicated by his dismissal. His relief is in no way necessitated a nationwide injunction.
In sharp, sharp contrast, the relief in Texas v. United States can only be accomplished by a nationwide injunction. The effects of DAPA cannot be limited to one state, or the party states. Immigration policy has a uniformly nationwide effect–by design. If DAPA goes into effect in other states, and a person from one of the other states moves to Texas, and requests a driver’s license, Texas would suffer the injury that cannot be undone. The government dismisses this “hypothetical”:
Likewise, the hypothetical and even more attenuated possibility that an alien accorded deferred action in another State might move to Texas and apply for a driver’s license does not justify barring implementation in all fifty States to accommodate one.
This isn’t a hypothetical. In our country, people can freely move from state to state (remember the Privileges and Immunities Clause of Article IV, although textually that is limited to “citizens.”) In recent years, the influx of residents from (failing) states like California to (thriving) states like Texas have been well-documented. You can’t put this toothpaste back in the tube. A nationwide injunction is the only mechanism to avoid the irreparable injury. (I will discuss the nature of the injury in a future post).
Further, we are not talking about a suit from a single servicemember who sought his reinstatemnt, but a suit from 26 states, which have a “special solicitude” in the federal courts. If this is the best case the government can dig up, they are on weak ground.
The government also criticized the nationwide injunction on the grounds that the injunction harms “the larger interests of society.”
It must also take account of “the larger interests of society that might be adversely affected by an overly broad injunction.” Envtl. Def. Fund v. Marsh, 651 F.2d 983, 1006 (5th Cir. 1981). The APA’s provisions regarding preliminary injunctions incorporate these principles. See 5 U.S.C. 705 (“to the extent necessary to prevent irreparable injury,” reviewing court “may issue” orders to “preserve status or rights pending conclusion of the review proceedings”) (emphasis added).
Specifically, the government urges the court to consider how the injunction “harms non-parties.”
These principles apply with greater force where, as here, the scope of the relief harms non-parties.
No citation follows that sentence because no such citation exists. Here, the government is hinting (but not expressly adopting) that because immigrants benefit the non-party states, the injunction should be stayed. This argument was made by the Solicitor General of Washington to argue that any costs of immigration for purposes of standing are offset by the benefits of immigration in terms of economic productivity. This is a non-sequitur in the standing context–a $1 injury is not offset by a $1 benefit.
This argument is even less availing in the context of the stay. The question of harm does not concern the non-party states, but the federal government itself. The United States must show that it–not the other states–will suffer an injury if DAPA cannot go into effect immediately. The government explains that it has already invested a lot of time and money into planning DAPA. Big deal. They hinted in their previous papers that enjoining DAPA will harm national security, but they dialed back on that argument, which I didn’t think was very effective (this is the first brief authored by DOJ Civil Appellate, and it is much stronger than the district court briefs).
In any event, while nationwide injunctions are really broad, and should be judiciously implemented, I think it was appropriate here to safeguard the relief of the states.
Update: This is the government’s merits brief, not the say brief. The post has been updated.