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:
Why aren’t the lawyers looking at and using the Federal Court decision in Boston, which is at conflict with ridiculous lift ban decision?
— Donald J. Trump (@realDonaldTrump) February 4, 2017
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.