One Day After the Second Circuit Rules, a Split Fourth Circuit Panel Comes Out the Other Way on the Trump Administration’s “Public Charge Rule” and Nationwide Injunctions

Finding “nationwide injunctions” to be a “drastic and extraordinary remedy” restricted “to the most exceptional circumstances,” a divided Fourth Circuit panel holds in Casa De Maryland, Inc. v. Trump, No. 19-2222 (4th Cir. Aug. 5, 2020) that the district court abused its discretion by issuing an injunction that reached beyond the organization and its members who were plaintiffs in the lawsuit.

As in Monday’s decision in New York v. United States Dep’t of Homeland Sec., No. 19-3595 (2d Cir. Aug. 4, 2020) (see yesterday’s blog entry here), the panel reviews a preliminary injunction entered against the Trump Administration’s 2019 amendments to the “public charge rule.” (The amendments broadly reinterpret 8 U.S.C. § 1182(a)(4) of the Immigration and Nationality Act to reduce the number of people entering the United States who may be eligible for green cards and other visas.)

Unlike the Second Circuit yesterday, though, the panel majority reverses the district court on the merits, finding that the new regulation satisfied the demands of the Administrative Procedure Act, and was not arbitrary and capricious. This issue appears inexorably to be headed to the U.S. Supreme Court (indeed, the Supreme Court has already granted a stay of prior injunctions of the “public charge” rule – Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020), and Wolf v. Cook Cty., Illinois, 140 S. Ct. 681 (2020)).

Hitching a ride with the “public charge rule” is a possible high-court showdown on nationwide injunctions. Individual Justices in separate opinions have urged that the Supreme Court take up whether nationwide injunctions violate federal judicial power or are otherwise not allowed. The Ninth Circuit recently expressed grave doubts about nationwide injunctions (in California v. Azar, 911 F.3d 558 (9th Cir. 2018)), while the Second Circuit on Monday left the door open to such relief (although it scaled the injunction in that case to the geographic scope of the circuit, in its own discretion).

The Fourth Circuit panel majority, approving and expanding upon the Ninth Circuit’s reasoning, shuts the gate almost completely on nationwide injunctive relief, absent certification of a Fed. R. Civ. P. 23(b)(2) class. (As a side note: it is entirely explained why the panel majority devotes fifteen pages of its opinion to this topic, considering that it had already vacated the injunction on the merits … rendering the scope-of-relief issue supererogatory.) It gives a litany of reasons why nationwide injunctions violate the judicial power of Article III.

1. Because “the sole duty of the federal courts is not to decide general questions for everyone, but rather to settle particular ‘cases’ or ‘controversies’ between particular parties … Article III requires that injunctions be tailored to protect only the plaintiffs in a specific case from the defendants to that suit.”

2. “[B]y issuing such an injunction, a single district court, whose decisions are non-precedential in its own circuit, does not simply resolve a given lawsuit, but rather decides a general question for the entire nation.”

3. Because Article III and the Judiciary Act of 1789 adopted the principles of the eighteenth-century English Court of Chancery, nationwide injunctions are infirm because “they lack any basis in traditional equity practice.”

4. “Nationwide injunctions effectively vitiate th[e] requirement” of Article III standing “by permitting a single plaintiff to obtain equitable relief on behalf of countless non-parties, wholly without inquiry into whether they have suffered or will imminently suffer any injury-in-fact.”

5. “[N]ationwide injunctions allow non-parties to slip the bonds of” ripeness and mootness as well, “as a single plaintiff who obtains nationwide relief has done so on behalf of innumerable non-parties whose claims may very well have been premature or long stale.”

6. The means to obtain nationwide relief exist in Rule 23(b)(2), which is grounded in equity practice and provides due process protections for absent parties not present in nationwide injunctions.

7. In addition to the limits of judicial power, nationwide injunctions are bad public policy, failing to respect the boundaries and wisdom of coordinate courts (which might reach different outcomes), “limit[ing] dialogue in the lower courts [and] favoring quick and uniform answers to the more deliberate—and likely more accurate—method of doctrinal development that is intended under our judiciary’s very design.”

8. Nationwide injunctions also “promote sprints to the courthouse and rushed judicial decisionmaking, often under immense time pressure, based on expedited briefing, and in the absence of a factual record,” upend executive power, and demand urgent resort to the Courts of Appeals and Supreme Court.

9. Nationwide injunctions turn the structure of the federal judiciary upside-down, giving individual district court orders priority over other district courts and even Courts of Appeals.

10. Nationwide injunctions expose the federal judiciary to politicization, encouraging forum-shopping for compatible judges.

The panel majority also specifically rejects the compromise that the Second Circuit worked out, an injunction limited to the geographic boundaries of the circuit: “A geographically-limited injunction suffers from the same infirmities as a nationwide injunction, albeit on a smaller scale, i.e., it protects non-parties and purports to decide a general question of law rather than a specific dispute.”

In dissent, Judge King  – in addition to disagreeing on the merits of the rule – notes that the argument about nationwide injunctions is dicta and that while “a nationwide preliminary injunction is a strong remedy … district courts are entitled to wide discretion in fashioning injunctive relief.”

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