District courts in San Francisco and Brooklyn have issued nationwide injunctions barring the Trump administration from rescinding the Deferred Action for Childhood Arrivals program , President Obama’s 2012 deferred-action policy to protect certain young immigrants from deportation. Earlier this month, Texas and six other states challenged the legality of DACA in the U.S. District Court for the Southern District of Texas in Brownsville. In light of the 2015 precedent from the Fifth Circuit, which invalidated the closely related Deferred Action for Parents of Americans program (DAPA), I suspect that Texas’s challenge will succeed.
If the district court issues an injunction that is not stayed by a higher court, the Trump administration will face an immediate conflict between dueling nationwide injunctions. What would the government do? When asked, during a recent oral argument before the Ninth Circuit, a Justice Department lawyer candidly replied, “What we would do in that circumstance is something we are still figuring out.” He argued that the fact that this scenario is even possible “is one of the many reasons why nationwide injunctions are not appropriate things for courts to issue.” He added such rulings can put “the government in this conflicting position where we can be faced with injunctions going both ways.” But the federal courts have routinely upheld the use of nationwide injunctions, making such a conflict possible—and perhaps even probable.
In all likelihood, this DACA conflict would be short-lived. A higher court—whether the Fifth Circuit or the Supreme Court itself—will likely put any such injunction from Brownsville on hold, temporarily at least. Therefore, it is extremely improbable that the federal government would be put in a position of having to disregard one court order or the other. Yet if a court does rule that DACA itself is unlawful, and that is a ruling that comports with the attorney general’s independent judgment, he should issue a revised memorandum justifying the rescission of DACA—even if that judgment conflicts with other district court judgment. This critical step, which I urged last month, will increase the likelihood that the rescission of DACA is upheld in the long run.
Dueling Cosmic Injunctions
Over the past five years, the most powerful litigation tactic to challenge executive actions has been the so-called nationwide injunction. Litigants need only shop for a favorable forum, persuade a single district-court judge that they are likely to succeed on the merits, and hope that a higher court does not stay the order. Once the injunction is issued, the executive branch ensures that all of its officers around the globe cease enforcing the challenged policy against everyone—not just those plaintiffs who brought the suit. There has been a robust debate about whether district courts have the power to issue national, universal, or, as Justice Neil Gorsuch euphemistically labelled them, “cosmic injunctions.”
Though attorneys general past and present have protested such orders, they have nevertheless complied. To date, such acquiescence has been fairly straightforward: because of forum shopping, injunctions have generally cut in the same direction. For example, district courts in San Francisco and Brooklyn have ruled that the DACA rescission was unlawful. It was legally irrelevant that a different district court in Maryland upheld the DACA rescission, because the government was already cosmically enjoined from halting DACA. But what happens if a different district court frames its judgment differently: Is the executive branch cosmically enjoined to haltDACA itself?
In such a situation—which Texas’s suit may generate—the executive branch would be faced with dueling injunctions and an intractable dilemma. Court #1 finds that it is unlawful to rescind DACA; as a result, the executive branch is required to continue processing DACA renewals. Court #2 finds that it is unlawful to implement DACA in the first place; as a result, the executive branch is required to stop processing DACA renewals. Confronted with such a judicial Catch-22, the Justice Department would no doubt seek an emergency appeal from the Supreme Court, and, the justices would likely oblige.
But there would still be an interregnum between the issuance of the dueling injunctions and any resolution by the Supreme Court. The problem of dueling national injunctions reveals three fissures in our separation of powers concerning judicial supremacy, executive-branch departmentalism, and the duty to take care that the laws are faithfully executed. The resolution of these fissures may chart the rocky road ahead for the future of DACA.
District Court Judicial Non-Supremacy
Assuming one district court has the power to issue a cosmic injunction, do two district courts have the power to issue conflicting cosmic injunctions? This question can be framed in one of two ways. Broadly, should the fact that Court #1 found that it would be unconstitutional to halt DACA, prevent Court #2 from finding that DACA itself is unconstitutional? Most observers would answer of course not: A district court does not bind another district court, even one in the same circuit. The narrower question is much tougher: Should the fact that Court #1 ordered the government to continue processing DACA renewals prevent Court #2 from ordering the government to halt DACA renewals. If the answer to the first hypothetical is of course not, what principle of federal jurisprudence would compel a different answer to the second hypothetical? The answer lies in the distinction between a precedent and a judgment. The declarations in the first hypothetical do not give rise to the conflict; rather, only the ensuing injunctions trigger the conflict. Perhaps Court #2 seeks to avoid a conflict. As a result, it decides not to issue the dueling injunction. Instead, it could issue a mere declaration, or it could issue a declaration with a stayed injunction. Alternatively, if Court #2 decides to issue a dueling injunction, then Court #1 could subsequently modify its initial injunction. It is even conceivable that Court #2 could ask the plaintiffs to intervene in Court #1, and challenge the scope of that injunction.
What, then, should be the rule to decide which injunction controls, in the hypothetical situation where a higher court does not intervene? Perhaps the first-in-time injunction ought to prevail. But that regime would perversely reward whichever litigant wins the race to the courthouse, and privilege the judge who rules in the quickest—and most cursory—fashion. Why should one judgment estop all other courts from ruling? Perhaps a different rule should be that injunction that favors the status quo should be preferred over injunctions that disturb the status quo. Yet, the familiar four-factor test for preliminary relief asks courts to consider not only whether the status quo should be maintained, but whether the issuance would likely yield “irreparable harm” or harm the “public interest.” A status-quo based rule would not provide much guidance. Ultimately, the conflict boils down into a game of jurisprudential chicken: which judge decides to back away from issuing a dueling cosmic injunction. Prudential concerns may prevent one judge from stepping on the toes of another judge, but these are not constitutional considerations. Given the insulation and autonomy afforded by life tenure, it is entirely possible that neither side would blink.
There’s not necessarily anything wrong with that independence. One district court judge is not supreme over another. It is true that in Cooper v. Aaron, the Supreme Court arrogated for itself the power of judicial supremacy, such that it can determine, with finality, the meaning of the “supreme Law of the land.” But the district courts lack any pretense to this purported supremacy. Call it instead judicial inferiority: The mere fact that dueling cosmic injunctions can even exist highlights the fact that this sort of stalemate is constitutionally proper. (Conversely, under the Justice Department’s position advanced to the Ninth Circuit, that such a stalemate can exist proves that cosmic injunctions cannot be proper.) Each judge takes the same oath to the Constitution, and has equal authority to rule on the constitutionality of an executive action—regardless of whether he or she is the first or last to do so, and regardless of whether his or her order disrupts or maintains the status quo. Court #1 should not control the declarations of Court #2. Likewise, Court #1 should not control the injunctions of Court #2.
Dueling cosmic injunctions revealed an initial fissure with respect to judicial non-supremacy in the inferior courts. These injunctions also reveal a second fissure with respect to the authority of the executive branch. Two centuries ago, Chief Justice John Marshall recognized in Marbury v. Madison that all “departments” of the government are bound by the Constitution, and each officer takes an oath “to support this Constitution.” Contrary to what far too many law students are taught, the federal courts do not have a monopoly on interpreting the Constitution. Rather all officers take an oath to “support this Constitution,” and have the authority to determine its meaning within their own spheres of autonomy. This understanding of shared supremacy is commonly referred to as “departmentalism.”
It is generally accepted, without controversy, that one district court judge is not bound by the judgments or declarations of another district court judge. If a federal court in Texas disregards the ruling of a federal court in California, the latter cannot hold the former in contempt. Indeed, there is no form of discipline that one court can inflict on another. Yet, applying the same principle to the executive branch would generate far more controversy: That is, can the attorney general choose to follow one injunction over another? If the executive branch complies with Court #1’s order—continuing DACA—and disregards Court #2’s order, the latter judge could hold the government in contempt. Or, if the executive branch complies with Court #2’s order—halting DACA—and disregards Court #1’s order, the latter judge could hold the government in contempt of court. Critically, only one court can be correct. The ultimate outcome of the case does not resemble Schrödinger’s cat: An interpretation of the Constitution cannot simultaneously be right and wrong.
When faced with dueling cosmic injunctions, the executive branch has the internalduty to decide which of two judgments is consistent with the Constitution. This principle is not nearly as radical as it may sound at first blush. Consider a simple hypothetical. For example, if the government appeals the dueling cosmic injunctions concerning DACA to the Supreme Court, the Justice Department’s pleadings will invariably favor the lower-court decision from Brownsville. Unsurprisingly, the executive department will favor that decision because it comports with its own interpretation of the Constitution. Departmentalism, however, need not be limited to mundane tasks like briefing. It can also extend to the far more consequential decision of how to resolve dueling cosmic injunctions.
Faithfully Executing The Laws
In the event that the Texas district court issues a nationwide injunction ordering the government to halt DACA, there are several possible paths forward. First, the Justice Department can ask the District Court for a stay. If a stay is granted, then the ostensible conflict is alleviated. If a stay is denied, the Justice Department can ask the Fifth Circuit for a stay. Yet, that process can take days, if not weeks. During that time, the government would still be subject to competing injunctions, and—in theory at least—the district court could hold the executive branch in contempt. If the Fifth Circuit grants a stay, then the conflict would be obviated. If the Fifth Circuit denies a stay, then the government would have to petition the Supreme Court for an emergency stay. A third option is far more likely: If the district court denies the stay, the Justice Department would simultaneously file applications for stays with the Fifth Circuit and the Supreme Court, along with a petition for certiorari before judgment. This route creates the most possible options for a remedy to resolve the conflict. Thus, in all likelihood, the concern of dueling cosmic injunctions would only last long enough for a higher court to intervene.
Purely as a thought experiment, consider a fourth option. The attorney general has already explained, if inartfully, that enforcing DACA is unconstitutional. This decision—an illustration of departmentalism—was made in part based on judicial precedent, and in part based on the attorney general’s own independent analysis based on the oath of office, and the duty to take care that the laws are faithfully executed. We already know that Attorney General Jeff Sessions vehemently disagrees with the cosmic injunctions from Brooklyn and San Francisco, which concluded that DACA must be maintained. From an amicus brief Sessions signed in 2016, it appears that he likely agrees with the Fifth Circuit’s decision invalidating DAPA. It stands to reason that he likely would agree with an injunction from the Brownsville court that DACA is unlawful. Faced with these facts, the attorney general could decide to simply follow the decision from Brownsville.
If he did so, the judges from Brooklyn and San Francisco could hold the executive branch in contempt. Ultimately, if the Supreme Court agrees with the attorney general that DACA is unlawful, it would be difficult to allow those contempt orders to remain in effect. (The so-called collateral bar rule may prevent the government from challenging the contempt order, itself, outside the scope of the usual appeals process.) Such a resolution would, in hindsight at least, support the willingness to disregard the then-repudiated judgments. It is not a complete response to say that the government is ignoring one decision because that presumes that the ignored decision is correct. Adhering to a correct decision in the face of dueling cosmic injunctions is not only preferable, but compelled by the principles of departmentalism. Conversely, choosing not to adhere with an incorrect decision in the face of dueling cosmic injunctions is not only preferable, but compelled by the principles of departmentalism. This premise does not apply to disregarding a single cosmic injunction; it only applies when two injunctions are in conflict.
Again, I pose this fourth scenario purely as a thought experiment, because I see it as extremely unlikely. Indeed, because DACA recipients have moved to intervene, the government’s independent choice to appeal or not appeal will likely be irrelevant. However, as a matter of first principles, this approach is an entirely defensible way to reconcile the competing pressures of judicial non-supremacy in the district courts and executive-branch departmentalism.
But there is also a fifth scenario that I see as far more likely—and, indeed, optimal.
Warping Through The Cosmic Injunctions
On April 27, the U.S. District Court for the District of Columbia found that the Trump administration had failed to adequately justify the rescission of DACA. The court gave the government an ultimatum: Issue a new memorandum explaining the rescission within 90 days, or it will require the government to accept new DACA applications. I explained that this ruling was actually a blessing in disguise:
[The Court’s ruling] should be sufficient to dislodge whatever institutional inertia exists within the Justice Department. The attorney general should withdraw the 2014 Office of Legal Counsel (OLC) opinion contending that DACA is lawful and explain why the policy runs afoul of the “take care” clause as well as the nondelegation doctrine. These steps will ensure that the government’s policy will be upheld on appeal, and they go a long way toward restoring the separation of powers in this administration, and beyond.
To comply with the D.C. Court’s order, the government would have to issue a new justification by July 23. It is possible that the Brownsville court will issue a declaration before that date, and find that DACA is illegal and/or unconstitutional. Then Sessions could (1) withdraw the DACA Rescission Memo 1.0, (2) issue DACA Rescission Memo 2.0, and (3) the Secretary of Homeland Security could act on that new guidance. The new memo would have to acknowledge that several courts have ruled that DACA was lawful, but that the attorney general found the Brownsville court’s opinion to be the most correct. (Again, this framing is no different from what the Justice Department would state in a brief to the Fifth Circuit defending the judgment below.) In light of the tenets of departmentalism, his oath to the Constitution, and the president’s duty to take care that the laws are faithfully executed, the attorney general could conclude that he can no longer implement DACA. Taking this action, as I noted in my prior post, could “moot other pending challenges to the DACA rescission,” which were premised on a now-withdrawn guidance document. (I table the question whether a new memo would vitiate the courts’ finding that the rescission of DACA was motivated by anti-Hispanic animus.)
Assuming those cases are mooted, the same litigants would likely bring identical challenges to DACA Rescission Memo 2.0. Additionally, the intervenors would probably appeal the Brownsville court’s judgment to the Fifth Circuit. But at that point, this appeal would have different dynamics. Instead of relying on the Fifth Circuit’s 2015 decision concerning the closely-related DAPA policy, now the executive branch would be relying on a decision concerning DACA itself. The decision to suspend DACA—thereby avoiding a contempt citation from the Brownsville court—would represent a non-arbitrary and capricious reason to suspend the program. Even though other courts upheld DACA’s validity, the risk of contempt would now be real, not conjectural. This course would invariably put the government at risk of sanctions from district courts in Brooklyn and San Francisco. But those contempt orders could be appealed and vacated. Ultimately, an appeal to the Supreme Court would resolve once and for all whether Schrodinger’s cat is dead or alive or, whether DACA is lawful or not. In the final analysis, the distance between the fourth and fifth scenarios is slim. The distinction only exists by the virtue of the D.C. Court’s blessing in disguise.
The critical juncture, however, is a decision in Brownsville prior to July 23. Can this be done? We do have points of comparison based on Texas’s 2014 challenge to the legality of DAPA. On Dec. 4, 2014, Texas filed its motion for a preliminary injunction. The Obama administration filed its response three weeks later on Dec. 24, 2014. Texas’s reply brief was filed on Jan. 7, 2015. A hearing was held on Jan. 15, 2015. The court’s opinion, granting the preliminary injunction, was issued on Feb. 16, 2015. From start to finish, the process took about ten weeks.
In the instant litigation, Texas filed its motion for a preliminary injunction on May 2. Assuming the same briefing schedule holds from 2015, ten weeks from that date would bring us to the third week in July. And, because most of the issues—standing, justiciability, and the analysis concerning DACA—have already been resolved, this go-round should take even less time.
Going forward, if the Brownsville court rules for Texas, and does so prior to July 23, when faced with dueling cosmic injunctions, the Justice Department should choose door number five and provide a new, more authoritative, and defensible justification to rescind DACA.
Cross-Posted at Lawfare