Instant Analysis Nationwide Injunction in Washington v. Trump

February 4th, 2017

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.