Block on Trump's Asylum Ban Upheld by Supreme Court
The use of nationwide preliminary injunctions has been on the rise in recent decades. A preliminary injunction is a court order that prohibits one party in a lawsuit from taking a certain action or the government from enforcing a particular rule or law.
Unlike, say, a temporary restraining order, a preliminary injunction can last for the entirety of the litigation. In the case of lawsuits against the federal government, a nationwide injunction applies to all states, regardless of whether a state is party to the lawsuit. This makes it an incredibly powerful tool. The most recent prominent example occurred when a federal district court in Florida ended the public transportation mask mandate.
Now, a judge at the U.S. Court of Appeals for the Sixth Circuit joined a growing number of government officials and appellate judges in telling district court judges to cool it with the nationwide injunctions.
On September 30, 2021, Secretary of Homeland Security Alejandro Mayorkas issued "Guidelines for the Enforcement of Civil Immigration Law." The guidance prioritized the apprehension and removal of noncitizens who are a threat to:
The rationale behind the memo is that the Department of Homeland Security does not have the resources to go after all of the estimated 11 million noncitizens living in the U.S. without legal permission. Instead, Mayorkas prioritized focusing on immigrants who pose a security risk.
The guidance is non-binding and is not law. Nothing in the guidance gives any rights to any immigrant. The guidance also does not preempt state or local laws or tell states how to sentence criminal defendants who are noncitizens. All it does is tell federal agents how to enforce federal law — and even in that, the guidance is non-binding, so individual agents still have discretion in pursuing removals.
Three states still took issue with the guidance. The attorneys general for Arizona, Montana, and Ohio sued in federal court in Ohio, seeking to prevent the guidance from going into effect. The states argued that the guidance would hurt them economically by reducing the number of noncitizen removals in their states. The district court judge agreed and issued a nationwide injunction, requiring DHS agents in every state to ignore the memo. The federal government appealed to the Sixth Circuit.
In order to justify a preliminary injunction, a court must find the following:
A unanimous three-member panel of the Sixth Circuit lifted the injunction, holding that the states failed to meet any of the above requirements. While the Sixth Circuit opinion goes in-depth about these issues, the bottom line is that since the guidance was non-binding, it wasn't clear the states would be harmed, the court doubted the states' legal arguments on the merits, and the public interest favored the federal government.
Judge Jeffrey Sutton, appointed in 2003 by George W. Bush, wrote the opinion for the court. He added a concurrence to note that "[c]all them what you will — nationwide injunctions or universal remedies — they seem to take the judicial power beyond its traditionally understood uses."
According to a Department of Justice estimate, it's a tool district court judges are wielding far more often in recent years. The DOJ estimates nationwide injunctions increased by 58% in the Obama administration vs. the Bush administration. During the Trump administration, these injunctions rose to 12 times that of those issued during the Bush administration.
Sutton's main issue was that based on the district court's nationwide injunction, 47 states who did not participate in the lawsuit — and thus presumably do not have a strong issue with it — did not want or need the injunction. Sutton went on to list the well-documented problems that preliminary injunctions pose. These include:
Sutton noted that the district court, which of course had every right to issue its decision, could have simply imposed the injunction for the three states that filed the lawsuit. There were few, if any, foreseeable problems that would have arisen from issuing a narrower ruling.
Will opinions such as Sutton's help stem the tide of nationwide injunctions? Time will tell, but for now, it seems as though district courts are still often considering this once-extreme remedy as an appropriate use of judicial power.
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