(Reuters) - Attorney General Jeff Sessions has said the Obama-era Deferred Action for Childhood Arrivals program, which allows young people brought to this country illegally as children to apply for work permits and Social Security numbers, is an unconstitutional exercise of executive branch power. The U.S. government nevertheless continues to process renewal applications by DACA recipients in order to comply with sweeping injunctions issued by federal district judges in Brooklyn (279 F.Supp.3d 401) and San Francisco (279 F.Supp.3d 1011).
Seven Republican state attorneys general want that to end. Led by Texas AG Ken Paxton, they’ve asked a federal judge in Brownsville, Texas, for a nationwide injunction directing the U.S. government to shut down the DACA program.
The AGs’ case has created quite a pickle for the Justice Department, judging by a brief DOJ filed Friday. We already know the judge presiding over the Texas DACA challenge, U.S. District Judge Andrew Hanen, is perfectly happy to flex his injunctive power. Judge Hanen, in case you’ve forgotten, set off the recent surge in nationwide injunctions to block presidential policies in 2015, when he enjoined the Obama administration (86 F.Supp.3d 591) from implementing a program to grant legal status to some undocumented parents of American citizens. The Republican AGs’ theory of unconstitutionality in the new DACA case is identical to the theory that persuaded Judge Hanen the last time around. So there’s good reason to believe the judge will once again issue a universal injunction barring the government from operating a program he considers to be unconstitutional.
Such an order would mean the government could not avoid violating one injunction or another. If it complied with the New York and California injunctions and continued to operate DACA, it would run afoul of the Texas injunction. If it complied with Texas and shut down the program, it would be flouting the New York and California orders.
The Justice Department is trying to ward off this constitutional conundrum. On Friday, it told Judge Hanen it agrees DACA is unconstitutional - but asked the judge not to issue a sweeping injunction barring it. “Although the United States agrees that DACA is unlawful, here, the erroneous nationwide injunctions issued by district courts in the Eastern District of New York and Northern District of California would conflict with a preliminary injunction — and especially a nationwide one — in this case, subjecting the United States to inconsistent obligations,” the brief said. “It would be impossible for the United States to comply with conflicting injunctions.”
The DOJ brief is full of digs about the recent judicial vogue for nationwide injunctions – the extremely controversial tactic that state AGs and advocacy groups have deployed to great effect to shut down presidential policies they don’t like. (Scotusblog published a very helpful guide in February to academic debate over these injunctions, beginning with heated discussion over whether they should be described as nationwide, national, universal or something else.) Attorney General Sessions has been fuming publicly about these sweeping order for months, describing nationwide injunctions as “a threat to our constitutional order.”
His Justice Department has done more than fulminate. Last week, you may recall, the en banc 7th U.S. Circuit Court of Appeals granted DOJ’s petition for review of the scope of a nationwide injunction barring the department from denying grant money to so-called sanctuary jurisdictions. DOJ didn’t even ask the full appeals court to hear the merits of the ruling that its sanctuary cities policy is unconstitutional. It’s just asking the 7th Circuit to hold a single trial court cannot bind the entire country simply by issuing a nationwide injunction. In the new DACA brief, DOJ reiterated that it considers nationwide injunctions that presume to bind people and entities who aren’t before the court as “inappropriate” and “improper” – even when DOJ agrees on the merits of the underlying decision.
The DACA case could end up being a perfect example of the pitfalls of sweeping injunctions to block federal policy, said law professor Howard Wasserman of Florida International University, who argues in a forthcoming paper for the Lewis & Clark Law Review that nationwide injunctions (or, to use his preferred term, universal injunctions) are never appropriate. “This has been exactly the fear that commentators like myself and the federal government have had since lower courts started issuing these,” Wasserman said. He told me he’s expecting Judge Hanen to issue a sweeping injunction against DACA, based on the judge’s history. The government will not be able to comply with diametrically opposing injunctions – “exactly why this whole practice is a problem.”
Law professor Amanda Frost of American University, whose paper on nationwide injunctions will soon be published in the New York University Law Review, told me she’s not convinced. Even if the U.S. government winds up facing contradictory injunctions in the DACA case, she said, “it’s not like this is extraordinarily awful or unprecedented.” State and federal courts often divide, she said, citing gay marriage as a recent example. So do federal circuits. Contradictory injunctions are messy, to be sure, but Frost said judges ought to craft or enforce their orders in a way that doesn’t put the government in jeopardy of contempt. “Courts have to be more thoughtful,” she said. “I’m happy about that.”
DOJ offered some suggestions along those lines to Judge Hanen in its DACA brief. If he insists on enjoining the program, Justice said he should only block DACA renewals for recipients from the seven states that brought the case in his courtroom. The judge should also stay any injunction for 14 days, DOJ said, so the Justice Department can ask other courts to stay contradictory DACA injunctions. At the moment, the San Francisco and Brooklyn injunctions are before the 9th and 2nd Circuits, respectively. The 9th Circuit has heard oral arguments. The 2nd Circuit case has been fully briefed but not yet argued. A third nationwide injunction, from a federal judge in Washington, D.C., orders the government (2018 WL 1920079) to maintain DACA and even process new recipients but that order is stayed in advance of a status report due next month.
I should also mention that there’s a chance the U.S. Supreme Court will address the scope of nationwide injunctions when it rules on the Trump administration’s travel ban. But there was scant discussion at oral argument on whether trial judges can bar federal policy across the nation, and law profs have told me it’s unlikely the justices will use this case to opine on the propriety of nationwide injunctions.
Judge Hanen, as I mentioned, lit a fuse when he issued that sweeping injunction against the Obama immigration policy in 2015. It’s going to be very interesting to watch him try to prevent an explosion in the DACA case.