A DACA Question: Should Judges Use Local Cases to Halt National Orders?
Posted January 14, 2018 2:46 p.m. EST
WASHINGTON — When a federal judge in California ordered a stop last week to a key plank of President Donald Trump’s immigration agenda, he revived a debate that has simmered in this age of partisanship: the role of the impartial judiciary in U.S. democracy.
The judge, William Alsup of the Northern District of California in San Francisco, used a local case to impose a nationwide stop on Trump’s order to end a program that protects young unauthorized immigrants in the United States.
The tactic has gained popularity among federal judges as a tool to combat perceived executive overreach. But legal scholars say it is helping to erode the idea of an impartial judiciary, and Alsup’s decision opened him to critiques that he overstepped his boundaries by applying national orders in a regional case.
The possibility of obtaining a comprehensive injunction that impedes, or even thwarts, the opposition has legal scholars worried that more plaintiffs’ lawyers will take cases to sympathetic judges.
The injunctions let judges who might have strong views impose them broadly, bypassing established tools like class-action lawsuits, said Samuel Bray, a law professor at the University of California, Los Angeles, who published an article last month advocating that federal judges no longer use nationwide injunctions.
“How can a single judge decide a question for the whole country?” Bray said.
The use of local cases to issue national orders occurred only a few times until President Barack Obama’s second term, when Republican state attorneys general turned to that strategy about half a dozen times to stop some of his major initiatives, Bray said.
The tactic has grown more popular as voters become more polarized and Congress is historically unproductive. “If the legislature were solving problems and creating legislation, and if we didn’t have as much executive overreach, then these big national issues wouldn’t be going to the courts as much,” said Wendy R. Weiser, a director at the Brennan Center for Justice.
Federal district court judges issued sweeping national injunctions in individual cases that stymied attempts by both Trump and Obama to change how the United States treats unauthorized immigrants. Federal judges in Texas used them to stop Obama’s initiatives on rights for transgender citizens and overtime pay. Judges in California, Hawaii and other states have since used them to push back on Trump’s travel ban and immigration order.
“Increasingly, legal scholars are concerned about the way national injunctions are transforming the relationship between the courts and the political branches,” Bray said.
While the debate over national injunctions has so far been a quiet affair among scholars, those orders have forced the government and the court system into a public crisis mode.
In 2014, Judge Andrew S. Hanen of the U.S. District Court in Brownsville, Texas, delayed an executive action drafted by Obama that gave as many as 5 million unauthorized immigrants temporary protection from deportation and permitted them to work. Hanen said that the program, Deferred Action for Parents of Americans, could not be enforced nationwide until litigation was resolved.
Protests broke out across the country in response. The case ultimately went before the Supreme Court, whose justices were split, 4-4, effectively ending Obama’s program before it started.
On Tuesday, Alsup ordered the Trump administration to maintain the Deferred Action for Childhood Arrivals program, or DACA, which temporarily shields from deportation 800,000 young people who illegally entered the country as children. The judge’s order was criticized by the Justice Department.
When appeals courts do not block these injunctions, the Supreme Court can be forced to intervene, as it did with the Obama-era immigration case.
There is speculation that the Supreme Court will address universal injunctions in the coming year. “The justices don’t like the districts courts changing national policy overnight,” said Josh Blackman, a professor at South Texas College of Law Houston.
The Supreme Court has typically heard cases after they have wound their way through the court system, giving the justices an opportunity to weigh multiple rulings from multiple judges.
“When national injunctions accelerate decision making, the Supreme Court only gets views on one side of the argument,” Blackman said. “It’s forced to decide major constitutional questions with no trials, no contrary views and with less time.”
In some cases, arguments for nationwide injunctions make sense, according to some legal scholars. If, for example, Trump’s order on DACA is rejected after immigrants are forced out of the country, the harm to them could be irreparable. Some scholars like Weiser say they believe that personal attacks on judges by the president and the recent nominations of judicial candidates who are young and ideologically extreme, some with little experience on the bench, are more serious issues than the use of nationwide injunctions.
But even lawyers who have supported the use of national injunctions say their use should be curbed. Blackman, who filed briefs that supported a national injunction against Obama’s executive action on immigration, said they should not be used in cases of sanctuary cities because each one deals with a different set of issues and punitive measures.
“These injunctions are pushing to new frontiers,” Blackman said.