A Week of Universal Injunctions

Adam Shelton · August 12, 2020

Last week both the Second and Fourth Circuits issued decisions in cases challenging the Trump Administration’s new definition for “public charge.” Congress has long determined that those likely to become a “public charge” are inadmissible for immigration purposes. But Congress has never defined what “public charge” means.

The Trump Administration, through the Department of Homeland Security, adopted a new definition for the term that will have the effect of rendering more people inadmissible. A number of people, organizations, and states challenged that change. The Second Circuit determined that the change was likely prohibited by statute and a violation of the Administrative Procedure Act. Contrarily, the Fourth Circuit determined that the change was likely lawful.

In both cases the respective district courts had enjoined the Trump Administration from implementing the new “public charge” definition. Each enjoined implementing it generally and not just with respect to the plaintiffs in each case.

Both circuits termed this a “nationwide” injunction. While both injunctions were nationwide as they were issued against the federal government and the federal government exists nationwide, this term can be deceiving. It leads some to believe the asserted problem with such injunctions is geographic. This terminology led both the Second and Fourth Circuits amiss in their decisions limiting the “nationwide” injunctions in their respective cases.

The Second Circuit

This past week the Second Circuit seemed to think geography was at the forefront of the debate over the propriety of beyond-the-party injunctions. There, the district court issued a preliminary universal injunction which prevented the “public charge” rule from taking effect. The government appealed this ruling, claiming that the rule was lawful and that, even if it weren’t, the district court exceeded its powers in issuing a “nationwide” injunction.

The Second Circuit disagreed with the government about the propriety of the new definition. But the court partially agreed with the government about the scope of the remedy. While the court determined that courts have the power to issue universal nationwide injunctions, the court held that such an injunction was imprudent here. The court focused in on the practical problems of such injunctions against controversial rules when other circuits have pending cases challenging the same rule.

To be sure, this concern is valid. Multiple circuits are currently handling challenges to the rule. And one even issued a contrary opinion the next day. But these practical concerns stemming from the court’s focus on the nationwide aspect of the injunction led to a limited injunction which the court admitted would not provide all the plaintiffs with “complete relief.”

The Second Circuit limited the injunction to the three states under its jurisdiction. This was quite an easy decision as each of the three states challenged the rule. But organizations challenged the law as well and they were a part of the same case. The problem? Not all the organizations limited their operations to only Connecticut, New York, and Vermont. The court admitted as much explaining that “[a]s modified, the injunction covers the State plaintiffs and the vast majority [but not all] of the Organizations’ operations.”

That is, the court’s focus on the nationwide aspect of this universal injunction, along with the practical concerns, and the underlying political debate over the issue led the court to leave some of the plaintiffs without the protection to which they are entitled.

The Fourth Circuit

The next day the Fourth Circuit released its own opinion on the public charge rule. Unlike the Second Circuit, the court here held that the public charge rule was lawful. As a result, the Fourth Circuit determined that the lower court was wrong to issue any injunction, let alone the nationwide injunction the lower court issued.

The court proceeded to explain why such injunctions are beyond the power of courts to issue. In contrast, the dissent argued that once the court determined that injunctive relief was improper, the court had no reason to discuss the propriety of injunctions which extend beyond the plaintiffs. The dissent has a point. And there is some irony in the court explaining that judges only have the power to decide a specific case for the particular plaintiffs in a case in which the scope of the injunction was not a live issue because the court held that no injunction should have been issued in the first place.

In any event, the majority addressed nationwide injunctions. But in doing so, the court failed to address some of the key arguments in favor of such injunctions and displayed a misunderstanding of the issue.

The Fourth Circuit’s understanding of the controversy was better than the Second Circuit’s because it rightly concluded that the argument is all about the parties, not geography. That is, the court rightly framed the legal argument over such injunctions as to whether courts have the authority to issue relief to people not before the court. Yet the Fourth Circuit did not seem to draw this to its natural conclusion. An injunction which protects non-parties but is not “nationwide” because the federal government is not being sued, or because the people protected do not exist nationwide, is exactly the same thing in a legal sense as a “nationwide” injunction.

Thus, when concluding that such injunctions are a new invention the court missed several examples of injunctions which protect non-parties against city and county taxes in the 1800s. And it missed crucial examples of statewide injunctions from the early 1900’s, including one issued by the lower court in Pierce v. Society of Sisters. As the court rightly concluded that the main legal critique of this problem is that they protect nonparties, it is disappointing that it did not examine non-nationwide universal injunctions in crafting an opinion concluding that such injunctions are improper.

Nor did the court rebut, confront, mention, or even cite any of the arguments in favor of injunctions which protect non-parties. There have been multiple recent court decisions which explain how such injunctions are within the power of the court to grant. Further, there is an active academic debate over the propriety of such injunctions with a focus on history and the traditional tools of equity. Yet, the court did not even acknowledge the existence of arguments supporting injunctions which protect nonparties.

The First Circuit Will Soon Have a Say

The issue of courts issuing injunctions which protect non-parties is not going away and it will likely not become any less controversial. The Supreme Court will eventually have to settle this issue as circuits are splitting over the propriety of such injunctions. And it is likely that more Courts of Appeals will soon issue decisions discussing the propriety of such injunctions.

A day before the Second Circuit opinion, a district court in Puerto Rico issued a territory-wide permanent injunction. The court enjoined the government from continuing to deny access to Supplemental Security Income, the Supplemental Nutrition Assistance Program, and Medicare Part D to individuals “solely due to their residency in Puerto Rico.” Only nine people challenged this prohibition. But the court issued an injunction protecting all residents in Puerto Rico otherwise eligible for said benefits. That is, the court issued a universal territorial injunction.

The federal government will likely appeal this decision. When the First Circuit takes up this case hopefully it understands that the problem is about parties, not geography, and as this injunction is not “nationwide” that will likely not be a problem. The court will also hopefully consider arguments both in support of such injunctions and against them and issue an opinion addressing both sides of the argument. 

Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.