May a federal district court issue a nationwide injunction against enforcement of the government’s immigration policies? In February 2016, a district judge in Texas purported to do just that. It entered a preliminary injunction against the expansion of the Deferred Action for Childhood Arrivals (DACA) and the related Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. The programs would have deferred action from immigration enforcement for up to 4.4 million children and parents in the United States, thus effectively allowing them to remain in the U.S. for the time being. Texas, joined by 24 other states, argued that that these executive actions violated the “Take Care” clause of the Constitution. The district court ruled in favor of Texas, and the Fifth Circuit affirmed.
In spring 2016, the case was a casualty of the current Supreme Court vacancy. The Supreme Court split 4–4 over the appeal of the preliminary injunction, thus affirming the judgment by an equally divided court. United States v. Texas, 136 S. Ct. 2271 (2016).
The Obama administration has filed a petition for rehearing, asking that the Court rehear the case when a ninth justice is confirmed. The government argues that, based on the district court’s earlier ruling, that court will almost certainly enter a permanent injunction of similar nationwide scope. As a result, the petition argues, this “‘unprecedented and momentous’ injunction barring implementation of the Guidance will have been effectively resolved for the country as a whole by a court of appeals that has divided twice, with two judges voting for petitioners and two for respondent States.”
Most observers expect the rehearing petition to be denied—after all, the Court could have carried the case over until the next term but chose not to do so. If the petition is denied and if the district court indeed issues the permanent injunction, then the scope of that injunction will be ripe for challenge.
The United States argued in the Fifth Circuit that the preliminary injunction was overly broad and unduly burdensome, writing in the Fifth Circuit brief:
The district court’s injunction is drastically overbroad and thus is invalid even if some injunction were warranted. Twenty-four States, the District of Columbia, and the U.S. territories are not parties to this action, and a dozen States participated as amici below to oppose plaintiffs’ challenge and demonstrate the adverse effects of the district court’s injunction. Yet the district court enjoined the Guidance on a nationwide basis, barring implementation in States that do not oppose the policies set forth in the Guidance and even in States that actively support them.
Injunctions are governed by Federal Rule of Civil Procedure 65. The federal rules, however, do not specify the appropriate geographical scope of injunction. Although the issue has been raised in litigation—and frequently in civil rights litigation—the Supreme Court has not yet explicitly ruled on the propriety of nationwide injunctions. One district court, in upholding a challenge to the “Don’t Ask, Don’t Tell” policy in 2010, held that a nationwide injunction was appropriate in that case—but in that case, the policy of interstate comity was outweighed by the importance of the constitutional rights at issue.
Comity may weigh more strongly in the current case. States who supported the deferred action programs and thus were not part of the suit asked for the injunction to be stayed outside of Texas: “[A]mici States ask that the Court stay the injunction outside of Texas, or at least outside of the Plaintiff States. As detailed above, in light of the complete absence of even a claim of harm in the non-Plaintiff States, there is no basis for forcing the injunction on us.”
As a result, things could get messy: Even if the government is prevented from collaterally attacking the ruling in a different district, immigrants hoping to benefit from the program or governors and attorneys general in states not participating in the current litigation, for example, could seek a ruling outside the Fifth Circuit. One observer has pointed out that“[t]he Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.”
Keywords: litigation, civil rights, appellate litigation, immigration
Cassandra Robertson is a professor of law at Case Western Reserve University.