Justice Gorsuch wants to eliminate nationwide injunctions

It's too early in the year for the big Supreme Court rulings to come down, but the Justices often write up a concurrence or dissent on motions that come before the Court. These sometimes take the form of essays in which the Justices ruminate on a legal issue and give insight on where they want the law to go. Making news this week was an application to stay lower federal court rulings that enjoined a Trump administration rule that allows immigration authorities to deny green cards to immigrants who might go on certain forms of public assistance. In support of that application, Justice Gorsuch suggests the Court should take a look at nationwide injunctions. This is a sleeper issue for the Court.

The case is Department of Homeland Security v. New York, issued on January 27. Cases around the country are challenging the new regulations. The Ninth Circuit last year allowed the rules to take effect. That case was City and County of San Francisco v. United States Citizenship and Immigration Services, 944 F.3d 773 (9th Cir. 2019). But other cases have gone the other way. What happens in these cases is that the judge may enjoin enforcement of the regulation nationwide, not just locally. And that's where Justice Gorsuch comes in.

The Court this week stayed any injunctions arising from the new "public charge" issue. Justice Gorsuch takes up the issue of national injunctions, making it clear he wants to do away with them. After noting that some courts around the country have enjoined the new rule nationwide but some courts have not, he writes,

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.

Justice Gorsuch goes on to say that nationwide injunctions "raise serious questions about the scope of courts' equitable powers under Article III," the constitutional provision that authorizes the federal courts. "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." In addition, "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."

Justice Thomas joins in this discussion, which is filled with casual writing of the kind we have come to expect from Justice Gorsuch. The writing style is interesting, but the larger issue, of course, is whether the Court will prohibit local federal courts from issuing nationwide injunctions when it determines that a law or regulation is unconstitutional or illegal.  

istance

City & Cty. of San Francisco v. United States Citizenship & Immigration Servs., 944 F.3d 773, 780 (9th Cir. 2019)