Patterico's Pontifications

1/27/2020

Supreme Court Lifts Lower Court’s Injunction Against Restricting Indigent Immigrants

Filed under: General — JVW @ 1:45 pm



[guest post by JVW]

From Fox News:

The Supreme Court will allow the Trump administration to enforce, for now, its “public charge” immigration restriction, lifting a pair of preliminary injunctions issued by federal judges.

The Monday order followed a 5-4 split vote that divided the court’s conservatives and liberals.

At issue is the administration’s rule issued in August that would restrict immigrants entering the United States if the government believes they will rely on public assistance, such as housing or health care benefits. Lower federal courts had blocked the policy from being implemented while the issue is being litigated.

What is interesting there is that along with a brief order written on behalf of the majority came a concurrence written by Justice Neil Gorsuch which expressed frustration with district and circuit courts attempting to issue nationwide injunctions on behalf of aggrieved parties. Apologies for the long quote, but it’s worth reading in its entirety to understand the barely-concealed contempt Justice Gorsuch has for this sort of advocacy lawfare:

On October 10, 2018, the Department of Homeland Security began a rulemaking process to define the term “public charge,” as it is used in the Nation’s immigration laws. Approximately 10 months and 266,000 comments later, the agency issued a final rule. Litigation swiftly followed, with a number of States, organizations, and individual plaintiffs variously alleging that the new definition violates the Constitution, the Administrative Procedure Act, and the immigration laws themselves. These plaintiffs have urged courts to enjoin the rule’s enforcement not only as it applies to them, or even to some definable group having something to do with their claimed injury, but as it applies to anyone.

These efforts have met with mixed results. The Northern District of California ordered the government not to enforce the new rule within a hodge-podge of jurisdictions—California, Oregon, Maine, Pennsylvania, and the District of Columbia. The Eastern District of Washington entered a similar order, but went much farther geographically, enjoining the government from enforcing its rule globally. But both of those orders were soon stayed by the Ninth Circuit which, in a 59-page opinion, determined the government was likely to succeed on the merits. Meanwhile, across the country, the District of Maryland entered its own universal injunction, only to have that one stayed by the Fourth Circuit. And while all these developments were unfolding on the coasts, the Northern District of Illinois was busy fashioning its own injunction, this one limited to enforcement within the State of Illinois.

If all of this is confusing, don’t worry, because none of it matters much at this point. Despite the fluid state of things—some interim wins for the government over here, some preliminary relief for plaintiffs over there—we now have an injunction to rule them all: the one before us, in which a single judge in New York enjoined the government from applying the new definition to anyone, without regard to geography or participation in this or any other lawsuit. The Second Circuit declined to stay this particular universal injunction, and so now, after so many trips up and down and around the judicial map, the government brings its well-rehearsed arguments here.

Today the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois. But, in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem. The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of “nationwide,” “universal,” or “cosmic” scope, these orders share the same basic flaw — they direct how the defendant must act toward persons who are not parties to the case.

If you can bear with me for a little while longer, Justice Gorsuch continues with an excellent separation-of-powers lecture to his colleagues in the judicial branch [I have removed the citations from the text to make it read a little bit more easily]:

Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit. When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place. But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III.

It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice. As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions. Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.

This is not normal. Universal injunctions have little basis in traditional equitable practice. Their use has proliferated only in very recent years. And they hardly seem an innovation we should rush to embrace. By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions. The traditional system of lower courts issuing interlocutory relief limited to the parties at hand may require litigants and courts to tolerate interim uncertainty about a rule’s final fate and proceed more slowly until this Court speaks in a case of its own. But that system encourages multiple judges and multiple circuits to weigh in only after careful deliberation, a process that permits the airing of competing views that aids this Court’s own decision making process. The rise of nationwide injunctions may just be a sign of our impatient times. But good judicial decisions are usually tempered by older virtues.

Nor do the costs of nationwide injunctions end there. There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal. Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide. The risk of winning conflicting nationwide injunctions is real too. And the stakes are asymmetric. If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal. A single loss and the policy goes on ice — possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay. And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari. What in this gamesmanship and chaos can we be proud of?

I concur in the Court’s decision to issue a stay. But I hope, too, that we might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.

This is the Neil Gorsuch we were promised when his nomination was first sent to the Senate: the judge who had little tolerance for the games-playing of the administrative state and its various advocacy allies. We’ll never know what Merrick Garland might have done in a similar situation, but I am grateful that the GOP Senate held out for this nomination.

– JVW

63 Responses to “Supreme Court Lifts Lower Court’s Injunction Against Restricting Indigent Immigrants”

  1. I should have mentioned too that the indomitable Justice Clarence Thomas joined Justice Gorsuch in this concurrence. He too has been a gift to the restoration of Constitutional principles in this country.

    JVW (54fd0b)

  2. Does Gorsuch brief have any “force” on district/circuit judges?

    whembly (51f28e)

  3. but I am grateful that the GOP Senate held out for this nomination.

    There was another person who should be credited for getting Gorsuch on the SCOTUS bench. A certain person whose name rhymes with rump.

    Bored Lawyer (998177)

  4. There was another person who should be credited for getting Gorsuch on the SCOTUS bench.

    Which is why it makes it really hard to not root against Schiff and hope with all hope that Schiff really does have nothing.

    T[he ]rump is a flawed vehicle for sure, and I don’t like it operates, but dang if I don’t like the direction it is driving.

    WaBlogLog (c0df72)

  5. Finally, some sanity. I hope SCOTUS gets the opportunity soon. Or maybe they’ll wait for RBG’s replacement.

    felipe (023cc9)

  6. Gor-Such Hypocrisy: “Orange Man Bad– until he’s good.”

    Hilarious.

    DCSCA (797bc0)

  7. Gorsuch is becoming my favorite justice. I saw a television feature about him (it could have been 60 Minutes) which showed the staggering amount of his reading material.

    norcal (42c8d0)

  8. “ This is not normal.”

    The more I hear from Gorsuch the more I like him.

    This is what collusion, Kavanaugh, impeachment etc. are all really about, making the normal of Gorsuch abnormal as soon as possible.

    The recent infusion of good judges is just another reason the Left is going out of its mind.

    The 2016 election gave us a reprieve but these attacks of insanity are not going to stop.

    harkin (d6cfee)

  9. Ahem … whom did Gorsuch replace again? And, ahem, ahem … after holding up Merrick Garland’s appointment for a year, do you doubt that the GOP-controlled House and Senate would have impeached the orange, I repeat Republicans would have impeached the orange, if he had appointed anyone less conservative than Gorsuch to replace Scalia?

    nk (1d9030)

  10. Yes, yes, but what is the opinion of Maggie’s twice removed anonymous source have to say? Such a fourth branch of government should matter.

    All4One (46cb3f)

  11. And, furthermore, harumph, harumph, harumph … when the sissy-boy poofter perv Trumpablicans had the House, the Senate, and the Presidency, why didn’t they fix what Gorsuch is complaining about through legislation? The jurisdiction of the federal courts is what Congress says it is.

    nk (1d9030)

  12. #9:

    Such wish casting is a good basis unto which to reach conclusions on matters of the law. Of course. Then again, perhaps not. I’d be willing to explore such notions in the forum of the free marketplace of ideas and let history be the ultimate judge.

    All4One (46cb3f)

  13. Do you even know anything about the Justice Gorsuch replaced All4Meatloaf?

    nk (1d9030)

  14. And, furthermore, harumph, harumph, harumph … when the sissy-boy poofter perv Trumpablicans had the House, the Senate, and the Presidency, why didn’t they fix what Gorsuch is complaining about through legislation?

    The Dear Leader had bigger fish to fry, like playing golf and tweeting about Mika Brzezinsky’s work.

    Dave (1bb933)

  15. And jerking off. Playing golf, tweeting about Mika, and jerking off.

    nk (1d9030)

  16. ”The Dear Leader had bigger fish to fry, like playing golf and tweeting about Mika Brzezinsky’s work.”
    Dave (1bb933) — 1/27/2020 @ 6:15 pm

    Says someone whose vote would’ve given us Garland.

    Munroe (dd4ac5)

  17. The legal issues are probably too complicated for my simple mind to understand, but if the feds are enjoined from enforcing a rule in, say, Rhode Island, how does it make sense to allow them to continue to enforce the same rule in, say, Connecticut?

    The rules, whatever they are, should be uniform for everyone across the United States, no?

    Dave (1bb933)

  18. Says someone whose vote would’ve given us Garland.

    Quit lying, McMullin wouldn’t have nominated Garland.

    Dave (1bb933)

  19. There was another person who should be credited for getting Gorsuch on the SCOTUS bench. A certain person whose name rhymes with rump.

    Fair enough and kudos to President Trump for nominating him.

    But can we agree that it was Mitch McConnell, Chuck Grassley, and the rest of the Senate GOP who did the really heavy lifting here?

    JVW (54fd0b)

  20. Gorsuch appears to be a fine jurist (and kudos to Dubya for making him a federal judge in 2006), but in putting him on the Supreme Court, Trump broke his campaign promise to appoint pro-life judges who would overturn Roe vs. Wade.

    Dave (1bb933)

  21. The rules, whatever they are, should be uniform for everyone across the United States, no?

    Even Santa Claus delivers presents one child at a time. The Courts are supposed to do justice to the litigants who come before them. Not legislate for the whole country. That’s what makes them courts and not legislatures.

    Gorsuch took the trouble to explain it, and JVW went to the trouble of posting it. Read it a couple or three more times, and I’m sure you’ll understand what he’s saying.

    nk (1d9030)

  22. “Quit lying, McMullin wouldn’t have nominated Garland.”
    Dave (1bb933) — 1/27/2020 @ 6:36 pm

    McMullin wouldn’t have been in a position to nominate under any scenario. And, people weren’t voting for McMullin as an alternative to HRC.

    More votes for McMullin in states like PA MI and OH would’ve thrown the electoral map to Hillary.

    The lie is yours.

    Munroe (dd6b64)

  23. It’s a question of jurisdiction and judicial discretion.

    They have an Article III that says they can interpret the US Constitution and federal statutes. They have the authority to rule on as-applied vs facial Constitutional challenges.

    Frankly, in the age of an activist Executive and a passive koala-esque cud-chewing Legislature, an activist Judiciary is a Constitutionally necessary check/balance.

    Leviticus (7fcc89)

  24. Even Santa Claus delivers presents one child at a time. The Courts are supposed to do justice to the litigants who come before them. Not legislate for the whole country. That’s what makes them courts and not legislatures.

    Fair enough. And yet…

    “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule.”
    – Marshall, CJ, Marbury vs. Madison

    I don’t think you’d argue that “justice to the litigants who come before them” allows complete indifference to everyone else in the country.

    And any justice dispensed must accord with the supreme law of the land, which mandates equal protection of the laws for all.

    Dave (1bb933)

  25. Yes, Trump appointed him, but it was off of Ted Cruz’ list. People complain that Cruz has sold his soul, but at least he got a pretty good price. If Trump approached judges the way he approached, say, North Korea, this could have gone badly.

    Kevin M (19357e)

  26. You can look up the difference between stare decisis and injunctive relief for yourself if there isn’t any paint around that you would rather watch dry, but what it comes down to is that a District Court’s word should be law only to the litigants before it, and no more than advice everywhere else including other courtrooms in that District; a Circuit Court’s word law only in its own Circuit; and the Supreme Court’s word law nationwide.

    nk (1d9030)

  27. Gorsuch has thrown down against the notion that a plaintiff can lose any number of cases and still get some judge to issue a global injunction . And of course the government has to play whack-a-mole to avoid losing once.

    This is important. The Rule of Law is at stake when highly partisan rulings can have nationwide effect.

    The sad thing is that 4 justices think it’s just fine. I wonder if they’d rule the same way if it was the NRA getting the injunctions.

    Kevin M (19357e)

  28. …a District Court’s word should be law only to the litigants before it, and no more than advice everywhere else including other courtrooms in that District; a Circuit Court’s word law only in its own Circuit; and the Supreme Court’s word law nationwide.

    Yes, exactly. It would be interesting to know if one judge’s cosmic ruling could be stayed in another judge’s district. If so, why not universally too?

    Rock-paper-scissors for the reducio ad absurdum.

    Kevin M (19357e)

  29. The lie is yours.

    Munroe (angry guy who lies literally all day long) — 1/27/2020 @ 7:07 pm

    Dustin (b8d6d1)

  30. Let’s look at it another way. Do you want every District Judge needing to go through the Kavanaugh process because now one District Judge has as much power (for as long as it takes for him to be overruled, anyway) as five Supreme Court Justices?

    nk (1d9030)

  31. Do you *we* want every

    nk (1d9030)

  32. Sigh. Do you *we* want every

    nk (1d9030)

  33. but if the feds are enjoined from enforcing a rule in, say, Rhode Island, how does it make sense to allow them to continue to enforce the same rule in, say, Connecticut?

    Because one court can be wrong. All we know is that a district court in (you example) Rhode Island heard some facts testimony stuff and, in that judge’s opinion the plaintiff had the basis of a case.

    Now, let’s put the other case in Iowa instead. ANYONE in Iowa who likes the ruling can file a case along the same lines and THEY CAN’T LOSE. At best they don’t get a second injunction. If they do ge3t one, then now there are two injunctions and even if the first one is appealed sucessfully, there is still the second one. Or the 3rd or 4th or 5th. It’s all free to the plaintiffs as losing doesn’t matter.

    The object of the exercise is legal bullying, where the government’s book bag is tossed back and forth between courts to prevent the government from, well, governing.

    And the Rule of Law is treated as a sick joke.

    Kevin M (19357e)

  34. Maybe – just maaaaaaaaaaaaaaaybe – just this one time! – this is actually a complex question of federal jurisdiction and Constitutional law, rather than a basic partisan litmus test or an outcome that can be explained by unmoored partisanship alone.

    Leviticus (7fcc89)

  35. Shorter:

    Currently the plaintiffs get as many bites at as many apples as they can hire lawyers for, and the government can’t win until it gets rid of ALL the apples.

    Kevin M (19357e)

  36. Uh, no. The block quote from Gorsuch lays out the various scopes of the various injunctions. Some of them are extremely broad, but not all of them.

    Leviticus (7fcc89)

  37. Leviticus,

    I agree with that. Can you come up with a principled reason why Gorsuch is wrong? Note that we are not talking about individuals trying to get justice for themselves from an actual harm, but about political actors attempting to prospectively stop government from providing what it believes is justice — for anyone.

    Flipping the ideology: Suppose 6 spread-out courts ruled that the federal prohibition on machine guns was unconstitutional and each issued global injunctions. Would you be OK with these same keep-away tactics?

    Kevin M (19357e)

  38. Some of them are extremely broad, but not all of them.

    And the Court allowed the narrow one in Illinois to stand.

    Kevin M (19357e)

  39. #36 referred to #34

    Kevin M (19357e)

  40. Actually, I re-read you comment and realized I misread it the first time. I thought you were saying the plaintiffs are guaranteed victory by successfully biting the apple once. I think your comment is actually pretty accurate as stated, and I apologize for misreading it.

    Leviticus (7fcc89)

  41. OK, 37

    Kevin M (19357e)

  42. My #40 referred to Kevin’s #35 (which I misread at #36)

    Leviticus (7fcc89)

  43. My wife explained the whole injunction game to me:

    “It’s lawyers. If they get away with something once, they will do it again and again until someone stops them.”

    Kevin M (19357e)

  44. My #40 referred to Kevin’s #35 (which I misread at #36)

    I think we’re both on the same page there.

    Kevin M (19357e)

  45. Maybe – just maaaaaaaaaaaaaaaybe – just this one time! – this is actually a complex question of federal jurisdiction and Constitutional law, rather than a basic partisan litmus test or an outcome that can be explained by unmoored partisanship alone.

    Yep, and notice that all Gorsuch is asking is that the Court, i.e. his colleagues, sit down together at some point and think through this matter. Of course as nk rightly pointed out, Congress could get off its rear end and do its job in regulating the federal courts.

    JVW (54fd0b)

  46. To answer Kevin’s question at #37, and one of the broader questions posed by the post, I would err on the side of caution when and where constitutional rights are concerned –
    even if that means delaying implementation of particular laws unless and until the matter can be examined by the appellate courts.

    That delay seems to me to be the only consequence of the “problem” the Gorsuch has identified, and it seems to me to be a straightforward example of the system or checks and balances working the way it is supposed to work.

    Leviticus (7fcc89)

  47. Constitutional questions, that is.

    Leviticus (7fcc89)

  48. That delay seems to me to be the only consequence of the “problem” the Gorsuch has identified, and it seems to me to be a straightforward example of the system or checks and balances working the way it is supposed to work.

    Leviticus (7fcc89) — 1/27/2020 @ 8:09 pm

    It exceeds their jurisdiction.

    NJRob (4d595c)

  49. It might, arguably, now – given that Gorsuch has provided this concurrence in a 5-4 decision. But it didn’t before and arguably still doesn’t.

    Leviticus (7fcc89)

  50. That delay seems to me to be the only consequence of the “problem” the Gorsuch has identified, and it seems to me to be a straightforward example of the system or checks and balances working the way it is supposed to work.

    OK, but let’s go back to the question at hand. The Trump Administration issued a directive that immigrants who appeared to be likely to avail themselves of public assistance should not be admitted into this country. It is very difficult to believe that this is outside of the President’s proper authority, yet somehow a couple of circuit courts and a four of nine Supreme Court justices have articulated (“concocted” if I am being uncharitable) a reason why this is not part of the President’s proper authority.

    You saw what Justice Gorsuch said about this, right? President X issues an executive order. Party A immediately goes to court to seek an injunction. President X’s team then has to fight that injunction. Perhaps they win. But in that case Party B then goes to a different court seeking another injunction, so President X’s team has to fight all over again. In the meantime, Parties C, D, and E are shopping around in other courts trying to find the magic one that will rule the executive order invalid for all jurisdictions. It’s akin to saying that in order to win the Olympic gold medal 400 meter hurdles, athlete J has to beat each and every other competitor in a one-on-one race, but any competitor who beats athlete J automatically wins the gold medal himself. And athlete J can’t be given the medal until every single possible challenger has been given his shot. The legal system shouldn’t work this way, especially given the snail’s pace at which our modern justice system seems to move.

    JVW (54fd0b)

  51. But it didn’t before and arguably still doesn’t.

    And again, this is why Justice Gorsuch is calling for some regulation along these lines.

    JVW (54fd0b)

  52. “ It is very difficult to believe that this is outside of the President’s proper authority, yet somehow a couple of circuit courts and a four of nine Supreme Court justices have articulated (“concocted” if I am being uncharitable) a reason why this is not part of the President’s proper authority.”

    – JVW

    Is it very difficult to believe that? A couple of circuit courts and four of nine Supreme Court justices believe that, as you say. Maybe the question is being begged.

    Leviticus (7fcc89)

  53. Trump is enforcing a law, the that Congress passed and Bill Clinton signed in 1996, both Clinton and Bush 43 enforced, and apparently Obama used his pen and phone on. Obama-appointed black-robed fascists don’t like it. Is that a fair summary?

    nk (1d9030)

  54. the *Illegal Immigration Reform and Immigrant Responsibility Act of 1996*

    nk (1d9030)

  55. And unless you know different for sure, don’t tell me it’s not just because “Trump!!!1!”, because I remember signing affidavits of support for immigrants and non-immigrants, and needing to provide proof of ability to support, including health insurance and life insurance (I guess for burial costs), during both the Clinton and Bush presidencies.

    nk (1d9030)

  56. It might, arguably, now – given that Gorsuch has provided this concurrence in a 5-4 decision. But it didn’t before and arguably still doesn’t.

    Gorsuch’s concurrence is not part of the opinion of the court, and thus carries no legal weight.

    Obiter dictum is the fancy-pants legal term for it, I think.

    Dave (1bb933)

  57. We know leftist judges have abandoned the law, in favor of disrupting President Trump specifically. And conservative principles generally.
    How do we know? Judges have stated so clearly from the bench. Saying, that if the same order was written by any other person, they would have ruled differently.

    iowan2 (1c4a14)

  58. The big problem here is that Trump changed the law, as it has been understood, without going to Congress, and even if you say the law should be read the way he, or his appointees, read it, they made political exceptions.

    Even of the court case is not based on that argument, perhaps because it has no merit, it is the motivation for the lawsuits.

    Sammy Finkelman (083d4c)

  59. “Gorsuch’s concurrence is not part of the opinion of the court, and thus carries no legal weight.”

    – Dave

    It’s not explicitly “part of the opinion,” but it will frequently be utilized as such because it was a 5-4 split.

    Leviticus (7fcc89)

  60. It’s not explicitly “part of the opinion,” but it will frequently be utilized as such because it was a 5-4 split.

    I can’t see how this is right.

    Gorsuch is free to write whatever he wants in a concurring opinion. He could write that the moon is made out of green cheese, and the fact that he also joined in the opinion of the court would not make his additional comments in the concurrence carry any legal weight.

    At most, it is “food for thought” for other judges to consider the merit of.

    Dave (1bb933)

  61. Indeed it is just food for thought. All that Gorsuch said was that the Supreme Court should find another way to handle such issues.

    It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice… What in this gamesmanship and chaos can we be proud of?

    I concur in the Court’s decision to issue a stay. But I hope, too, that we might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.

    Sammy Finkelman (083d4c)

  62. JVW (54fd0b) — 1/27/2020 @ 8:39 pm

    Perhaps they win. But in that case Party B then goes to a different court seeking another injunction,

    With a different litigant (which in situations like this may be a technicality) And there are probably several different teams of lawyers, not all using the same arguments.

    Sammy Finkelman (083d4c)

  63. This last SC term – I agreed with virtually every opinion, dissent and vote of Gorsuch – including the ones where voted with the liberal side.

    Especialy Gamble regarding 5A double jeapordy

    Joe - the non legal expert (debac0)

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