Washington Seeks Nationwide Injunction of Immigration Order, Relying on Argument It Opposed U.S. v. Texas

February 1st, 2017

On Monday, the Washington Attorney General challenged the constitutionality of President Trump’s executive order, seeking a temporary restraining order. Barely three weeks after the inauguration, and now progressive states are filing suit to seek nationwide injunctions against executive actions on immigration. This wasn’t always their position. The times, they are a- ‘.

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.

I don’t pretend litigators have any duty for consistency. In fact, I’m glad the Washington SG (who has taken me out of context before) saw the light–sooner rather than later.

Update: On 2/3, the District Court issued a nationwide injunction, specifically citing the need for uniformity in the immigration laws.