(Reuters) - The debate over nationwide injunctions as a tool for opponents of presidential policies will no longer have a decisive moment at the 7th U.S. Circuit Court of Appeals on September 6 – but that doesn’t mean the Justice Department is slacking off as it presses appellate courts to stop allowing a single trial judge to block nationwide implementation of executive actions.
Nationwide injunctions (which sometimes go by slightly different names, such as national injunctions) have become one of the most potent weapons for state officials who want to resist presidential policies. The strategy took off in the Obama administration, when Republican AGs persuaded trial courts to grant sweeping injunctions to block health care, immigration and employee overtime policies. After President Trump was elected, Democratic AGs adopted and expanded the tactic. It’s now almost routine for suits challenging presidential policies to ask the trial judge to shut down the policy across the country. Attorney General Jeff Sessions has said the injunctions paralyze government and “gravely threaten” the constitution’s separation-of-powers doctrine.
The U.S. Supreme Court, as you may recall, had a chance to opine on the scope of such injunctions when it reviewed appellate decisions enjoining President Trump’s modified ban on travel from several Muslim-majority countries. The court didn’t reach the issue because it deemed the travel ban to be a justifiable use of presidential power (138 S.Ct. 2392). In a concurrence, Justice Clarence Thomas nevertheless hinted quite strongly, as I’ve reported, that if trial judges continue to grant sweeping injunctions to block presidential policies, the court will have to step in to stop lower-court judges from abusing their power to remake national policy.
That was the backdrop for a scheduled September 6 oral argument before the en banc 7th Circuit in a suit in which Chicago sued the Justice Department over DOJ’s plan to deny certain federal funding to so-called sanctuary jurisdictions. Last April, A three-judge 7th Circuit panel affirmed a nationwide preliminary injunction (888 F.3d 272) in the case, even though Chicago was the only plaintiff. In June, the 7th Circuit granted the Justice Department’s petition for an en banc rehearing on the scope of the preliminary injunction. The appeals court subsequently ordered a temporary stay of the preliminary injunction for jurisdictions other than Chicago.
But now the oral argument is off, at least for now. On August 10, the 7th Circuit vacated its decision to rehear the nationwide preliminary injunction because of procedural issues. The trial judge in Chicago’s case, U.S. Harry Lienenweber, granted Chicago’s motion for summary judgment last month, announcing his intention to issue a permanent – rather than temporary – injunction that would preclude the DOJ from implementing its plan to withhold funding to sanctuary jurisdictions across the nation. (The judge stayed the injunction pending appeal.)
The Justice Department launched a new appeal of the summary judgment ruling and the proposed permanent nationwide injunction. It asked the 7th Circuit to consolidate its appeal of the temporary and permanent injunctions and hear the consolidated proceeding en banc. Chicago opposed the consolidation.
The 7th Circuit said on August 10 that it didn’t make sense to hold an en banc rehearing to decide the scope of a preliminary injunction that “has all but evaporated.” It instructed Judge Lienenweber formally to issue the permanent injunction so the Justice Department can appeal both the merits of the summary judgment decision and the scope of the permanent injunction. The 7th Circuit promised that it would expedite its consideration of the new appeal.
Last week, the Justice Department asked the appeals court to vacate the three-judge panel decision upholding the now-evaporated preliminary injunction as the new appeal goes forward.
The postponement of the 7th Circuit’s reconsideration of nationwide injunctions means the DOJ’s next opportunity to argue against them will be at the 9th Circuit in a case in which California and four other states sued over the Trump policy of allowing certain employers to opt out of paying for employees’ contraception. The trial judge in that case, U.S. District Judge Haywood Gilliam of Oakland, issued a preliminary injunction enjoining the policy in all jurisdictions. The 9th Circuit will hear arguments on the merits of the case and the injunction on Oct. 19.
The 9th Circuit, as you know, has upheld nationwide injunctions against presidential actions, including the injunction against President Trump’s travel ban in the Hawaii case that went to the U.S. Supreme Court. As recently as August 1, a three-judge 9th Circuit panel rebuffed DOJ’s request to issue a blanket prohibition on nationwide injunctions, in a ruling in San Francisco v. Trump (2018 WL 3637911), another sanctuary cities case.
But the panel in the San Francisco sanctuary cities case also vacated the nationwide injunction, holding that the record in the sanctuary cities case was not sufficiently developed to justify an order blocking DOJ’s funding policy for jurisdictions beyond California. The appeals court remanded the case to the trial court to flesh out the record, though it took pains to say it was “unpersuaded by the administration’s arguments in favor of a blanket restriction on all nationwide injunctions.”
The Justice Department is trying to leverage the 9th Circuit’s August 1 decision in the sanctuary cities case as it gears up for oral arguments in the contraception coverage case before the same appeals court. In a letter apprising the judges in the contraception case of the sanctuary cities decision, DOJ said the ruling underlines its arguments that injunctions should be tailored to address only the injuries of the specific plaintiffs who have sued, not broad prohibitions that apply across the land.
The AGs in the contraception case fired back last week, in a letter reminding the 9th Circuit that the panel in the San Francisco sanctuary case did not bite at DOJ’s exhortation to bar nationwide injunctions. The panel’s call for an injunction tailored to the case record, according to the AGs’ letter, casts no doubt on the propriety of the injunction in the contraception case because the trial court found a likely violation of the Administrative Procedure Act, and “the nationwide breadth is necessary to give the States a full expression of their rights under” the APA.
Obviously, the after-briefing letters can only hint at the deeper arguments the Justice Department and the AGs will make in October. But now that the 7th Circuit en banc hearing is off, a lot is riding on those arguments.
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