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Preserving the Nationwide National Government Injunction to Stop Illegal Executive Branch Activity

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Preserving the Nationwide National Government Injunction to Stop Illegal Executive Branch Activity RENDLEMAN_FINAL (DO NOT DELETE) 4/17/2020 5:12 PM PRESERVING THE NATIONWIDE NATIONAL GOVERNMENT INJUNCTION TO STOP ILLEGAL EXECUTIVE BRANCH ACTIVITY DOUG RENDLEMAN* And some things that should not have been forgotten were lost. History became legend. Legend became myth. –Lord of the Rings1 INTRODUCTION ......................................................................... 888 I. THE CONSTITUTIONAL FRAMEWORK FOR THE NATIONAL GOVERNMENT INJUNCTION ............................................... 893 A. Judicial Review .......................................................... 893 B. Separation of Powers .................................................. 894 C. Judicial Review in Action to Curb Executive Branch Excesses .......................................................... 895 II. PROCEDURE AND REMEDIES FOR A NATIONAL GOVERNMENT INJUNCTION ............................................... 901 III. TRUMP CHALLENGES JUDICIAL REVIEW AND SEPARATION OF POWERS ................................................... 906 IV. REPLY TO CRITICS OF THE NATIONWIDE NATIONAL GOVERNMENT INJUNCTION ............................................... 911 A. The Federal Courts’ Jurisdiction and Authority ........ 914 1. Subject Matter Jurisdiction .................................. 915 *Huntley Professor, Washington and Lee University Law School. Thanks to Shaun Shaughnessy for a careful and timely reading of an early draft and to Suzette Malveaux, Adam Steinman, Caprice Roberts, and Owen Fiss for support and encouragement. Thanks to Andrew Christensen and Franklin Runge in the Washington and Lee Law Library for prompt and efficient research support. Thanks to Martha Vazquez, Thomas Geeker, and Sean Moran for outstanding research assistance. Earlier drafts benefitted from airings at the Rothgerber Conference on Nationwide Injunctions at the University of Colorado Law School, the International Congress of Collectivization and Unity of Law at the Pontifical Catholic University of Rio Grande do Sul in Porto Alegre, Brazil, and the Remedies Discussion Forum at the Université Paris Dauphine PSL Research University. Thanks to the Frances Lewis Law Center for research support and for basing the Lewis Prize for scholarship on this Article. 1. THE LORD OF THE RINGS: THE FELLOWSHIP OF THE RING (New Line Cinema & Wingnut Films 2001). RENDLEMAN_FINAL (DO NOT DELETE) 4/17/2020 5:12 PM 888 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 91 2. Equity Jurisdiction ............................................... 919 3. The Rise of the Injunction .................................... 926 4. The Structural Injunction and the National Government Injunction ........................................ 928 5. Enforcement, Including Contempt ....................... 931 6. Equitable Jurisdiction and Judicial Discretion ... 936 B. Forum Shopping ......................................................... 937 C. Conflicting Injunctions ............................................... 939 D. Politicized Litigation .................................................. 943 E. Percolation .................................................................. 946 F. Precedent ..................................................................... 948 G. Asymmetry .................................................................. 949 H. Nonparty Benefit ......................................................... 950 I. Single Judge ............................................................... 959 V. FILTERS AND PRINCIPLES OF CONFINEMENT .................... 962 A. An Injunction Class Action ......................................... 964 B. Prerequisites for a Permanent Injunction .................. 964 C. Prerequisites for an Interlocutory Injunction ............. 966 D. Proof and Findings ..................................................... 968 E. Drafting the Injunction ............................................... 969 F. Appellate Review ......................................................... 971 CONCLUSION ............................................................................ 973 INTRODUCTION When someone successfully sues a federal executive branch official for violating federal law, the federal court’s remedy, which can be a nationwide national government injunction, thrusts the court into controversial territory. Critics maintain that courts grant too many broad nationwide injunctions against the executive branch. They state a myriad of reasons to oppose nationwide injunctions: The federal court, they write, lacks au- thority, power, or jurisdiction to grant a national government injunction. National government injunctions, they continue, en- courage plaintiffs to forum shop. Moreover, multiple lawsuits create a risk that different courts will grant conflicting injunc- tions. They politicize the judiciary and prevent issues from percolating in the federal courts. The injunctions distort the op- eration of precedent. Critics maintain that a national government injunction creates asymmetry. National govern- ment injunctions, critics argue, benefit nonparties—people who are not plaintiffs. Finally, critics protest that one trial judge RENDLEMAN_FINAL (DO NOT DELETE) 4/17/2020 5:12 PM 2020] INJUNCTIONS ON ILLEGAL EXECUTIVE ACTIVITY 889 should not grant an injunction that halts the whole federal ex- ecutive branch of the United States government. This Article disagrees with critics of national government injunctions. It presents reasons for broad injunctions and favors a federal judge’s ability to grant a nationwide national govern- ment injunction if needed to protect plaintiffs’ rights and to suppress defendants’ lawbreaking. This Article is based on a pro- fessional critique of courts and judges that aspires for neutral judicial decisions grounded on established principles; it is quali- fied by the realism of partisan judicial appointments, coupled with plaintiffs’ wide choices of forum. This Article maintains that critics’ arguments are incorrect, unconvincing, overstated, or true only some of the time. Examining the breadth of the federal courts’ injunctions against unlawful executive activity will lead this Article through complex and uncertain territory. After this Introduction, Part I examines the constitutional framework for national government injunctions. Constitutional issues include separation of powers and judicial review. Part II discusses the procedure and reme- dies that are involved in a national government injunction. It is followed by Part III, which discusses the threats President Trump poses to separation of powers and judicial review. Part IV examines and answers critics’ arguments against the nationwide national government injunction. It analyzes fed- eral court authority under the headings of subject matter juris- diction and equitable jurisdiction. It concludes that a federal district judge has authority and subject matter jurisdiction to grant plaintiffs an injunction that bars the federal executive from implementing an unconstitutional or illegal federal govern- ment program anywhere in the United States. The judge also has equitable jurisdiction to choose an injunction and equitable discretion to shape it. Critics have not examined the federal courts’ procedure carefully enough. Part V discusses federal courts’ regular proce- dure, including filtering techniques, checks against possible mis- takes, and grants of complete relief to victims of improper executive branch measures. Federal litigation procedures in- clude principles of confinement and injunction drafting that should check abuses. When this Article says that national government injunction lawsuits will be litigated in the regular way, it does not mean that courts will follow ordinary procedures. Deference to the ex- RENDLEMAN_FINAL (DO NOT DELETE) 4/17/2020 5:12 PM 890 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 91 ecutive branch defendant requires special judicial handling: something between ordinary and extraordinary treatment. When the federal courts apply the procedural techniques they have been using, and perhaps others suggested below, the pro- cedure is satisfactory to support a nationwide injunction against a lawbreaking executive branch defendant. No other limitations are needed or appropriate. This Article concludes that if the federal courts develop, ap- ply, and mold important procedure, equitable filters, and princi- ples of confinement, a federal court may protect plaintiffs’ rights by granting a nationwide national government injunction against an executive branch defendant’s improper activity. This Article expresses a sense of urgency about the federal courts’ role in curbing the Trump Administration’s improper measures. It combines opposition to the incumbent President with respect for the federal courts. Trump v. Hawaii concerned complex litigation about the Trump Administration’s third ban on Muslim immigration.2 The district court judge disapproved the ban and granted plaintiffs a preliminary injunction with nationwide effect. The Supreme Court majority decided that plaintiffs had not demonstrated a likelihood of success on the merits, reversed the preliminary in- junction, and remanded “for further proceedings consistent with this opinion.”3 The majority wrote: “Our disposition of the case [reversing the lower court’s preliminary injunction] makes it un- necessary to consider the propriety of the nationwide scope of the injunction issued by the District Court.”4 Both Justice Sotomayor and Justice Thomas set up the open issues that this Article examines: the breadth and scope of the
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