(Reuters) - President Trump’s Justice Department is going to have an opportunity to convince an en banc appellate court to take away one of the most powerful tools available to Democratic state attorneys general and civil rights groups attempting to block presidential policies. On Monday, the 7th U.S. Circuit Court of Appeals granted DOJ’s petition for en banc review of an April 19 decision (888 F.3d 272) upholding a nationwide injunction against the Justice Department policy of withholding grant money to so-called sanctuary jurisdictions.
DOJ didn’t even ask the en banc 7th Circuit to review the merits of the panel’s ruling that it likely violated constitutional separation of powers doctrine when it denied grant money to Chicago. Justice just wants the full court to hold that federal trial judges can’t issue sweeping injunctions that essentially shut down presidential policymaking. Attorney General Jeff Sessions has railed against these nationwide injunctions, which he considers “a threat to the proper functioning of the federal government.”
I expect the 7th Circuit en banc case to prompt heavy amicus action. There’s a chance the U.S. Supreme Court will address the appropriate scope of injunctions against federal policy when it issues a ruling later this month in Hawaii’s challenge to the Trump travel ban, but the issue got scant attention at oral argument.
Assuming the justices don’t rule definitively in the Hawaii case, the 7th Circuit en banc appeal will be the lead case on a critical question about the balance of power between the president and the courts.
But that’s not the only power struggle that plays out in nationwide injunction litigation – and that’s why it’s going to be fascinating to keep track of how amici line up in the Chicago sanctuary city appeal. Nationwide injunctions also recalibrate the balance of power between federal and state governments. Remember, it was Republican state AGs who first “weaponized” nationwide injunctions, to borrow a word from UCLA law professor Samuel Bray, who published an influential study, “Multiple Chancellors: Reforming the National Injunction,” last December in the Harvard Law Review. (Bray prefers to call these injunctions national, rather than nationwide.)
Before the Obama administration, national injunctions were nearly as rare as Mets’ World Series championships. When Bray first posted a draft of his paper, days before the 2016 presidential election, these sweeping judicial orders were under scrutiny as a tool Republican AGs had used to stymie Obama health, immigration and employee overtime programs. By the time the paper came out, Democratic AGs had shown they’d learned the same tricks. Both parties, he said, now know how to wield national injunctions to shift power from the federal government to state officials who don’t like their policies.
Bray, who opposes national injunctions against federal defendants and believes judges should be restricted to enjoining conduct directed at the plaintiffs in their courtroom, said the bilateral presidential pain inflicted by opposing party AGs purifies the debate over sweeping prohibitions. “It’s nice that both sides have been hurt,” he said. “They can consider it as a legal question independent of political facts.” Republican state AGs, he suggested, would be acting against their own interests if they were to support the Trump administration’s opposition to national injunctions, sheathing a sword they’ve used to cut down federal programs.
Texas and six other Republican state AGs, in fact, just brought a suit in Texas federal court that seeks a nationwide injunction against the Obama-era Deferred Action for Child Arrivals program. The Trump administration, as you probably recall, rescinded the DACA program, which grants work papers to qualified young adults brought to this country as children. Three federal judges have subsequently issued nationwide injunctions blocking the rescission. Texas and its allies want a contrary nationwide injunction to countervail those rulings.
Given their own history, Republican AGs may well sit out the en banc appeal in the Chicago case, said law professor Josh Blackman of the South Texas College of Law. When Texas has defended Trump policies in litigation by Democratic AGs and civil rights groups seeking sweeping injunctions, he said, “Texas hasn’t said a peep about nationwide injunctions. And why would they?” (The only reason conservative AGs might want to weigh in, he said, is if they regard the Chicago sanctuary injunction as a particularly unwarranted overreach since Chicago was the lone plaintiff in its suit against the Justice Department, and its claim involved only the grant money DOJ denied the city.)
I tried to find out what approach state AGs and advocacy groups plan to take in the Chicago case but didn’t get very far. The Republican Attorneys General Association did not have immediate comment. Its Democratic counterpart, the DAGA, said my inquiry about amicus filings was outside of its purview. The Justice Department declined to comment. Wilmer Cutler Pickering Hale & Dorr, outside counsel for Chicago in the sanctuary case, did not reply to an email request for comment.