Those pesky judges

[BradStevens]

The 9th Circuit has held that a broad injunction may be necessary to fully vindicate the rights of the parties themselves, and in certain circumstances such as immigration (through the Naturalization Clause) and the APA require nationwide injunctions--where appropriate. The Fifth circuit held that nationwide injunctions are appropriate because district courts exercise the judicial power of the entire US, not just a smaller territory, and in certain situations (like immigration), uniformity is necessary. The first Supreme Court to touch it, albeit in dicta, was Flast v. Cohen, 392 U.S. 83 (1968), and the court noted that the "injunctive relief sought by appellants... extends to any program that would have the unconstitutional features alleged in the complaint", rather than merely those programs injuring the plaintiff.

There are other reasons for it and against it. They have existed, in some level since the early 1900s. There are good reasons for it, especially in the case where there could be imminent harm. It is only a TRO they are granting--it is temporary until the court holds an evidentiary hearing (or in some cases a trial) as to whether a permanent one will issue.

The constitution does not expressly preclude or permit nationwide injunctive relief being sought. Every time a democrat took office, the republicans cheered on nation wide injunctions--Obama had 20 of them. Biden had 14 and every time Kazmarek down in Texas issued one, the Republicans danced a jig applauded the "rule of law". Tom Cotton wanted a ban to nationwide injunctions in 2019, then oddly shut up and cheered in 2021 when they were issued.

They could and should end the forum shopping nature of them, though. Send them all to the DC circuit.

 

[Mark Milton]

They could and should end the forum shopping nature of them, though. Send them all to the DC circuit.

100%

 

[Spartans9312]

The 9th Circuit has held that a broad injunction may be necessary to fully vindicate the rights of the parties themselves, and in certain circumstances such as immigration (through the Naturalization Clause) and the APA require nationwide injunctions--where appropriate. The Fifth circuit held that nationwide injunctions are appropriate because district courts exercise the judicial power of the entire US, not just a smaller territory, and in certain situations (like immigration), uniformity is necessary. The first Supreme Court to touch it, albeit in dicta, was Flast v. Cohen, 392 U.S. 83 (1968), and the court noted that the "injunctive relief sought by appellants... extends to any program that would have the unconstitutional features alleged in the complaint", rather than merely those programs injuring the plaintiff.

There are other reasons for it and against it. They have existed, in some level since the early 1900s. There are good reasons for it, especially in the case where there could be imminent harm. It is only a TRO they are granting--it is temporary until the court holds an evidentiary hearing (or in some cases a trial) as to whether a permanent one will issue.

The constitution does not expressly preclude or permit nationwide injunctive relief being sought. Every time a democrat took office, the republicans cheered on nation wide injunctions--Obama had 20 of them. Biden had 14 and every time Kazmarek down in Texas issued one, the Republicans danced a jig applauded the "rule of law". Tom Cotton wanted a ban to nationwide injunctions in 2019, then oddly shut up and cheered in 2021 when they were issued.

Thank you for the very informative post.

So the Constitution doesn’t grant such authority?

I see you listed an example of the SCOTUS…does that decision give the district judges “authority” or do we need the SCOTUS to decide?

 

[CO. Hoosier]

The 9th Circuit has held that a broad injunction may be necessary to fully vindicate the rights of the parties themselves, and in certain circumstances such as immigration (through the Naturalization Clause) and the APA require nationwide injunctions--where appropriate. The Fifth circuit held that nationwide injunctions are appropriate because district courts exercise the judicial power of the entire US, not just a smaller territory, and in certain situations (like immigration), uniformity is necessary. The first Supreme Court to touch it, albeit in dicta, was Flast v. Cohen, 392 U.S. 83 (1968), and the court noted that the "injunctive relief sought by appellants... extends to any program that would have the unconstitutional features alleged in the complaint", rather than merely those programs injuring the plaintiff.

There are other reasons for it and against it. They have existed, in some level since the early 1900s. There are good reasons for it, especially in the case where there could be imminent harm. It is only a TRO they are granting--it is temporary until the court holds an evidentiary hearing (or in some cases a trial) as to whether a permanent one will issue.

The constitution does not expressly preclude or permit nationwide injunctive relief being sought. Every time a democrat took office, the republicans cheered on nation wide injunctions--Obama had 20 of them. Biden had 14 and every time Kazmarek down in Texas issued one, the Republicans danced a jig applauded the "rule of law". Tom Cotton wanted a ban to nationwide injunctions in 2019, then oddly shut up and cheered in 2021 when they were issued.

What’s the extent of a trial court’s authority?

Could a district court judge have enjoined Roosevelts Japanese internment order?

Truman’s steel industry take over order?

Trumps order to the coast guard and border patrol to increase interdiction?

If I’m an anti-Trump judge I could cobble together all kinds of reasons for a nationwide injunction on many actions.

 

[Mark Milton]

Thank you for the very informative post.

So the Constitution doesn’t grant such authority?

I see you listed an example of the SCOTUS…does that decision give the district judges “authority” or do we need the SCOTUS to decide?

The constitution doesn't say much about a court's power except the following:

Article 3, section 1 provides: "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

Article 3, section 2 provides:

"[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

Article 3 relates to treason that isn't overly relevant to the issue at hand.

Article 3, Section 2 is the jurisdictional and empowerment section. You will note, that there is no real limit or description of what the courts are permitted to do (subject to the jurisdictional threshold questions, etc. There's no grant by the constitution that actually says judges have lifetime tenure either. There is no authorization in the constitution for creating a federal common law; rules of evidence, etc. These things exist today for good reason.

Nationwide injunctions are not explicitly authorized or prohibited. Much like rules of evidence, etc. Congress can change that.

 

[Mark Milton]

What’s the extent of a trial court’s authority?

Could a district court judge have enjoined Roosevelts Japanese internment order?

Truman’s steel industry take over order?

Trumps order to the coast guard and border patrol to increase interdiction?

If I’m an anti-Trump judge I could cobble together all kinds of reasons for a nationwide injunction on many actions.

You were dancing around the message board like Mikhail Baryshnikov when Kazmarkyk in Texas granted two nation wide injunctions during the Biden years. I wonder what changed this time around.

The district court in Younstown Steel & Tube v Sawyer did issue a nationwide injunction. The supremes granted certiorari and ruled in favor of the Steel company.

Dance the dance with everyone, not just the broad with the biggest rack and a loud mouth

 

[CO. Hoosier]

You were dancing around the message board like Mikhail Baryshnikov when Kazmarkyk in Texas granted two nation wide injunctions during the Biden years. I wonder what changed this time around.

The district court in Younstown Steel & Tube v Sawyer did issue a nationwide injunction. The supremes granted certiorari and ruled in favor of the Steel company.

Dance the dance with everyone, not just the broad with the biggest rack and a loud mouth

Begging the question.

Is any presidential order subject to judicial review?

FWIW, I once wrote a brief arguing that judicial review is inherent in separation of powers and Marbury simply recognized the power, not create it. Trial court ruled against me (but told a buddy on the golf course he liked the argument). Got a favorable settlement anyway because I had all the leverage. (I represented a taxing authority who challenged the creation of a tax-increment financing scheme. Between statutes and precedent, arguably nobody had standing to challenge it).

 

[Mark Milton]

Begging the question.

Is any presidential order subject to judicial review?

FWIW, I once wrote a brief arguing that judicial review is inherent in separation of powers and Marbury simply recognized the power, not create it. Trial court ruled against me (but told a buddy on the golf course he liked the argument). Got a favorable settlement anyway because I had all the leverage. (I represented a taxing authority who challenged the creation of a tax-increment financing scheme. Between statutes and precedent, arguably nobody had standing to challenge it).

Why wouldn't any presidential order be subject to review?

Does the order lack constitutional support?
Does the order violate the constitution?
Did the order exceed the President's powers?

In Kentucky v Biden in 2022, the Sixth Circuit ruled that the President’s reliance on the Federal Property and Administrative Services Act of 1949 (“FPASA”) was misplaced and did not authorize issuing an executive order binding on federal contractors; it determined that the act’s goal of improving economy and efficiency in federal procurement of property and services applied to the government itself and did not extend to issuing directives that may “improve the efficiency of contractors and subcontractors.”

In Bradford v US Dept. of Labor in 2024, the 10th Circuit held that Congress had delegated broad authority under FPASA to the President in the language setting out the act’s purpose, and that he was justified in determining that a $15 minimum wage was consistent with the act’s goals. Yet in Nebraska v SU, also in 2024, the 9th Circuit held that the minimum wage mandate did exceed the authority granted to the President and the Department of Labor. That decision relied on a narrow reading of FPASA, and concluded that the intent of the statute was limited to ensuring that the federal government received value in contracts with private entities, and that setting a minimum wage for the employees of those contractors fell outside the reach of FPASA. Clear as mud and a split in the circuits, but the Supremes declined to weigh in. Why do you think that is? We can make a pretty good guess

 

[Aloha Hoosier]

My MAGA friends on Facebook posted this meme today:

 

[Mark Milton]

My MAGA friends on Facebook posted this meme today:

I'm going solely from memory--this case was Johnson enforcing the Reconstruction Act--a congressional mandate. The court made the distinction of discretionary duties v ministerial duties. This issue came up during Trump's first admin --there was a case that went through the analysis that related to blocking twitter followers-or something completely stupid. I don't think the trump team appealed.

 

[Spartans9312]

They could and should end the forum shopping nature of them, though. Send them all to the DC circuit.

Was Kennedy’s line of questioning accurate in the video posted?

 

[BradStevens]

Was Kennedy’s line of questioning accurate in the video posted?

He hit on the points you’d want to ask. Sounds like he was just asking questions to tee up DOJ argument points it has used. Not sure if he’s right or what he’s leaving out.

 

[Mark Milton]

He hit on the points you’d want to ask. Sounds like he was just asking questions to tee up DOJ argument points it has used. Not sure if he’s right or what he’s leaving out.

He's right on the constitution part (it is silent); he's not right on the case law. I don't remember the rest of his line of questioning.

 

[CO. Hoosier]

Why wouldn't any presidential order be subject to review?

Does the order lack constitutional support?
Does the order violate the constitution?
Did the order exceed the President's powers?

In Kentucky v Biden in 2022, the Sixth Circuit ruled that the President’s reliance on the Federal Property and Administrative Services Act of 1949 (“FPASA”) was misplaced and did not authorize issuing an executive order binding on federal contractors; it determined that the act’s goal of improving economy and efficiency in federal procurement of property and services applied to the government itself and did not extend to issuing directives that may “improve the efficiency of contractors and subcontractors.”

In Bradford v US Dept. of Labor in 2024, the 10th Circuit held that Congress had delegated broad authority under FPASA to the President in the language setting out the act’s purpose, and that he was justified in determining that a $15 minimum wage was consistent with the act’s goals. Yet in Nebraska v SU, also in 2024, the 9th Circuit held that the minimum wage mandate did exceed the authority granted to the President and the Department of Labor. That decision relied on a narrow reading of FPASA, and concluded that the intent of the statute was limited to ensuring that the federal government received value in contracts with private entities, and that setting a minimum wage for the employees of those contractors fell outside the reach of FPASA. Clear as mud and a split in the circuits, but the Supremes declined to weigh in. Why do you think that is? We can make a pretty good guess

Because of separation of powers, many decisions are not subject to judicial review. Some orders that are not subject to judicial review.

Biden’s revocation of the Keystone XL permit
Any President’s designation of a national monument
In condemnation cases courts cannot review the decision to take property or the size, design or timing of the project.
50 Governors declared Covid emergencies they then deprived different constitutional rights; none of that was subject to judicial review.
When judicial review is allowed, the scope is always in question and whether or not post deprivation due process is sufficient to prohibit pre-deprivation injunctions.

Even if the judge could review the actual means and manner of dertermining the gang membership I think his order to the government to turn the plane around is a different issue.

A case I argued 45 years ago about this.

Colo. Land Use Com'n v. Bd. of County Com'rs

Colo. Land Use Com'n v. Bd. of County Com'rs - 604 P.2d 32

law.justia.com

 

[Spartans9312]

The constitution doesn't say much about a court's power except the following:

Article 3, section 1 provides: "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

Article 3, section 2 provides:

"[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

Article 3 relates to treason that isn't overly relevant to the issue at hand.

Article 3, Section 2 is the jurisdictional and empowerment section. You will note, that there is no real limit or description of what the courts are permitted to do (subject to the jurisdictional threshold questions, etc. There's no grant by the constitution that actually says judges have lifetime tenure either. There is no authorization in the constitution for creating a federal common law; rules of evidence, etc. These things exist today for good reason.

Nationwide injunctions are not explicitly authorized or prohibited. Much like rules of evidence, etc. Congress can change that.

At this point in time the GOP senate would not be able to overcome a filibuster from the Democrats. The 60 votes aren’t there