Nationwide Injunctions

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society’s Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings and practice group teleforum calls become a Federalist Society member today at fedsoc.org.

 

 

Dean Reuter:  Welcome to a special Executive Branch Review teleforum conference call sponsored by The Federalist Society’s Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. Our call today, entitled “Nationwide Injunctions,” will proceed for 60 minutes beginning momentarily.

 

As always, please note that all expressions of opinion are those of the experts on today’s call. Also, this call is being recorded for use as a podcast and will likely be transcribed and posted on The Federalist Society’s website. The call is also open to the public and open to the press.

 

We’re very pleased to welcome three guests for our inaugural teleforum celebrating Executive Branch Review Week here at The Federalist Society. We’re going to hear in order from the Honorable Scott Keller. He’s a partner at Baker Botts, then we’ll then hear from the Honorable Ken Paxton, State Attorney General of Texas, and we’ll conclude with opening remarks from the Honorable Beth A. Williams, who’s Assistant Attorney General heading the Office of Legal Policy at the U.S. Department of Justice.

 

We’re expecting opening remarks of about five to seven minutes from each, but as always, we’ll be looking to audience for question, so please have those in mind for when we get to that portion of the program. With that, Scott Keller, the floor is yours.

 

Hon. Scott Keller:  Great. Thank you very much, Dean, and it’s an honor to be part of the Executive Branch Review Week conference and looking forward to the comments of my former boss, Texas Attorney General Ken Paxton and also Department of Justice official Beth Williams. To kick off this discussion, I figured I’d try to put in context the issue surrounding nationwide injunctions.

 

And I’ll start by saying that, first of all, even the label “nationwide injunction” is a bit of a misnomer. Really what we’re talking about is the authority of courts to enter injunctions that would apply to non-parties. In other words, does a court have the authority or if it does, when should it enter an order that prevents a defendant not only from taking an action against a particular plaintiff in the case but also parties that are not within that case.

 

Obviously, this becomes a big issue when you’re talking about challenging federal government actions. And, in the Obama era, I think the district courts issued nationwide injunctions about 20 times, and I think, in the Trump era, that number has increased substantially. But the issue about non-party injunctions, and whether courts have the power to do that, isn’t just an issue about federal government actions. I think about state laws. When a plaintiff challenges a state law, do they get an injunction only against those particular plaintiffs or rather can they get a statewide or a systemwide injunction that would apply any time that government would want to be enforcing a particular law? This can pop up in election law disputes, first amendment challenges, abortion litigation, Second Amendment cases.

 

So the issue, well, we’re talking about today is nationwide injunctions. The underlying legal principles really apply beyond just when you’re talking about channeling federal government actions. And also to put this into context, really what we’re talking about is what happens in this litigation on the way up to the U.S. Supreme Court’s review. Because the U.S. Supreme Court, of course, when it issues a ruling on the merits, that is precedent for every court in the entire country.

 

And so the issue about “Does it have the power to issue an injunction that would apply to other parties?” it doesn’t mean as much to the Supreme Court because it can set the law for the whole country. But when we’re talking about lower courts that have territorial limitations, the issue about whether it can issue an injunction that would apply to non-parties—potentially throughout the whole country—becomes a lot bigger of a deal.

 

Now, there is a debate among jurists and academics about “Can courts ever issue nationwide injunctions?” And there is a significant historical debate between professors Bray and Sohoni. And I’m not going to get into the depths of that here, but what I will say is it’s very clear that, at least, for the past few decades, courts absolutely have recognized the ability that they can issue injunctions to non-parties.

 

And a set of cases that made this very clear from the Supreme Court was in 1970s in a series of school desegregation cases. And there, the entire court unanimously said that a systemwide remedy was permissible when a systemwide constitutional violation was shown. And to quote the Supreme Court in 1971: “As with any equity case, the nature of the violation determined the scope of the remedy.”

 

So what does that mean? It means when a Constitutional violation is shown, the Supreme Court has said, “They remedy can be tailored to preventing the government from infringing constitutional rights,” and that, of course, could apply to not only parties but also non-parties. Now, this line of cases, coming out of the school desegregation context, was applied then multiple times going forward, in particular, in a 1979 case called Califano v. Yamasaki, in which the Department of Justice argued that a nationwide injunction in that case should not issue. But the Supreme Court rejected the Department of Justice’s position there, and again confirming that the scope of the injunctive relief is dictated by the extent of the violation established.

 

Now, I’ll admit, in these cases, you’re trying to come up with neutral principles, and it can be very hard to do that in very politically charged cases when you’re talking about sensitive policies from the federal government. And I think all of us would agree that a nationwide injunction should be used sparingly. It should not always be the instinct of a court to enter a policy blocking a federal government action wherever it happens to reside. But I will point out the DAPA case that myself and General Paxton litigated. We obtained a nationwide injunction against an Obama era immigration order, and one of the key arguments as to why a nationwide injunction was proper in that case was you can’t have an immigration system that is patchworked state by state, rather the Constitution and Congresses identify. You need a uniform system of immigration.

 

So I think that’s a good example of a case where a nationwide injunction is proper. And an example of a case for a nationwide injunction is not necessarily proper is probably a case closer to the Chicago lawsuit regarding the Department of Justice grants when they were asking for particular money for the city of Chicago, and a court issued a nationwide injunction that would’ve applied for any city across the entire country.

 

So I think one of the – I will close here, and then turn it over to General Paxton, by noting that while we’re talking about the remedy today of a nationwide injunction, I think one of the biggest issues the courts have confronted in the Trump administration is really a demerits question of what should the scope be of Administrative Procedure Act review. And I think there is healthy room for debate as to whether courts are correctly applying the Administrative Procedure Act, and if they’re not, that would lead them to be striking down federal government actions at a larger rate than possibly the Administrative Procedure Act should be dictating that.

 

So that’s not to say that nationwide injunction should always issue. That’s not to say that all the litigations that occurred under the Trump administration has been adjudicated correctly and is striking down policies of the federal government that maybe should be left in place, but it’s important, I think, to keep in mind the differences between the underlying basis for non-party injunctions and merits review under the Administrative Procedure Act. So with that, I’d love to turn the floor over to my former boss, Texas Attorney General Ken Paxton.

 

Hon. Ken Paxton:  Thank you, Scott, and thank you, Dean, for hosting this. You guys at The Federalist Society, you fulfill a function that no other group in America fulfills, and I appreciate the work you do, and focusing on the Constitution, and the rule of law, and also on making sure that we have judges that do the same because clearly our Constitution wouldn’t survive but for having the right people in those positions.

 

And, Scott, I’m not surprised—I pretty much could just stop and say, “Yeah, what he said” in a lot better way than I’m going to say it. I will add that -- and, maybe, I bring a little bit different perspective, and this may seem maybe an overstatement, but I don’t think I would've run for attorney general had there not been the ability to get nationwide injunctions. And let me just give you the landscape. When I started in 2015, Obama was in office. The State of Texas had already, in six years, sued Obama 31 times. With Scott Keller’s team and others at the trial level working, we sued the Obama administration another 27 times in 27 months.

 

And I had come from the state senate. I had been in the Texas House before that for ten years. I had only served two years in the state senate. I was happy being there, but I looked at the landscape of where the country was going, and I didn’t believe that the people that were running for attorney general understood the gravity of the situation that we were facing. And it was my belief that if we could not stop the Obama administration from grabbing the power that they were grabbing from both Congress, from the courts, and really also from the state, that we were going to end up with a very different Constitution, and I could make the argument we would be post-constitutional.

 

And it appeared that Congress and the courts weren’t really doing the job, and it was really the states that were stepping into a role that I hope someday, when we’re in heaven, that I can ask some of the Founders if they foresaw the need that arose where the states in the first time in the history of the country really stepped up in large numbers and said, “No, we’re not going to let the federal government -- we’re not going to let, particularly, the Executive Branch just make up law and take on a role that is not their role under the Constitution.”

 

And, as we all know, the very spirit and underlying principles of the Constitution, there is this idea of separation of powers, and from the standpoint of the states, it didn’t appear that the other two branches of government were guarding that. And as those of you know on the call, just from civics and government in high school, back when they taught that, the states retained all the power that wasn’t specifically granted to the federal government.

 

And so I actually ran because not only did the states have standing—thank God they had standing—but to take on some of the issues that congress just left undone and the courts weren’t addressing—but they also had a remedy, and that remedy was things like, this, a nationwide injunction. And I would agree with the Department of Justice, their position, that these things have been abused, and I think they’ve been abused dramatically during the course of the Trump administration.

 

But as Scott alluded to, when 26 states sued in the case related to the Deferred Action for Parents of Americans, our remedy was a nationwide injunction. Had we not been successful, the administration would’ve first been able to make up laws, and Obama admitted that. He had said over 20 times that he didn’t have the authority to change law, and then in November of 2014, he came out and said, “I just changed the law.” And this is the guy that said that this was up to Congress, that he wasn’t a king. He wasn’t an emperor. These are his words, and yet he did it. And so he left us no other way.

 

And I made the argument to the U.S. Senate. I went and spoke at a lunch where there were about 50 Republican U.S. senators, and I encouraged them to defund this program. They could’ve just done that, and we wouldn’t have had to worry about litigation as much, and they basically looked at me and said, “Good luck. We hope you win.” And so that was the – our sole remedy was to go fight that in court and hope that we could get a nationwide injunction. Because even if we had standing, and even if we could’ve won, if there was no nationwide injunction, people could’ve gotten lawful status in other states, and then come to our state in the very harm that were trying [audio cuts out 13:24] and that we discussed in our lawsuit would have continued, and there would've been no way for us to have a remedy.

 

And so I would agree with the Department of Justice that there has been an abuse. I think the travel ban was an abuse. I think that is a – each case stands on its fact, and I think those cases can be brought individually without the need for some nationwide injunction, and I don’t think there’s a harm to the whole nation because one person can’t get in or another person can’t get in. That’s all based on different facts.

 

So I guess what I would say is I really think it’s important that, as Scott suggested, for cases that need a national solution, and some of those are under the APA, right, with agencies, and others are through executive orders and actions. I think it’s crucial that the states have some remedy, and but for that remedy, I’m pretty convinced that the Constitution that we have now would've been significantly perverted, and this idea of separation of powers that the Founders so deeply cared about because they so distrusted government. Power in the hands of too few people, I believe that that would've been gone, and the power of the Executive Branch would've grown immensely amid the Obama administration. With that, I’ll turn it over to—as I told Scott and Dean before the call—Beth, who can clean up the mess that Scott and I just created.

 

Hon. Beth A. Williams:  Well, thanks so much, Attorney General Paxton, and thanks to Dean and The Federalist Society for hosting this, and it’s really nice to be on a call with both Attorney General Paxton and with Scott. I want to start a little bit, I think, where Scott did with what is a nationwide injunction and how does the Department of Justice define it because I think so much of this gets really down to the definition. As Scott alluded to—this is not a geographically determined issue at all. I think some courts, when they’re looking at this, they think “Well, if I just limit it to the state of Maryland, then it’s not nationwide.” But that’s really not what we’re talking about.

 

We’re talking about granting relief to parties outside of the case and whether that’s appropriate. And so when the Department of Justice is talking about nationwide injunctions, we’re talking about injunctions that grant relief to non-parties and outside of the class action framework where that relief is not narrowly tailored to cure the plaintiff’s alleged injury. And I think that really gets to some of the examples that Scott and Attorney General Paxton were bringing up.

 

Because under the Department of Justice’s framework, an acceptable injunction could grant relief to non-parties if the movant has shown that that relief is necessary to cure the movant’s injury. And so school desegregation cases are actually a perfect example of that. Where your injury is that you’re not going to an integrated school, obviously, it would be an appropriate remedy to craft the resolution district-wide, school district-wide, that you would obviously require granting relief to parties outside of the case to cure the plaintiff’s injury.

 

The question is what happens when you’re doing it, and you don’t have to cure the plaintiff’s injury. And a really good example of that is the Byrne-JAG grant cases that are in the Seventh -- I think, actually, they’re back in the Seventh Circuit right now. And the question there was Chicago said, “Well, we’re a sanctuary city, but we want Byrne-JAG grant money. But we’re not only asking for our money, we’re asking for the money of every other city who’s also a sanctuary city in the country.” And the question is why does every other city need to get that money in order to give Chicago relief? So it’s a really good, I think, example of why the overbreadth of remedies is a problem.

 

And Justice Gorsuch, I thought, put it really well. He said, “The problem is that trial courts are ordering relief that transcend the cases before them.” And so where are we now as far as numbers? We’re really at a truly unprecedented number. The federal courts, by DOJ’s estimation, have now issued, at least, 58 nationwide injunctions against the Trump administration, and that’s more than one per month. That represents a seven-and-a-half-fold increase from the rate that nationwide injunctions were issued during the Obama administration, and an almost twelve-fold increase from the rate that they were issued during the George W. Bush administration.

 

And so while the suggestion was that they should be used sparingly, they most certainly are not being used sparingly. Because I think every district judge who gets them thinks “Well, I’m using them sparingly. I’ve only issued one.” But as Justice Gorsuch said, “There’s over 1000 district court judges either active or senior status right now.” And so what you’re see are truly unprecedented numbers against the Trump administration. And I would note that this really is a -- it’s a bi-partisan problem, and DOJ’s position has been consistent across this, across administrations, but this type of overbroad remedy is just not allowable.

 

I think you’ve all heard some of the problems with nationwide injunctions. The first is that it’s a serious separation-of-powers problem. What you’re seeing is district court judges essentially vetoing not only the policy as to the person or the plaintiff before them but the policy or the order nationwide. And as Justice Gorsuch just said, in DHS v. New York, in January -- when considering a stay motion, he wrote in a concurrence “When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to the jurisdiction in the first place. But when a court goes further than that, ordering the government to take or not take some action with respect to those who are strangers to the suit, it’s hard to see how the court could still be acting in the judicial role of resolving cases in controversies.”

 

And if you care about checks and balances, as Attorney General Paxton and I know Scott do, and as Attorney General Paxton said, “You should really care about who is issuing the check. Because no one would challenge that checks and balances are very necessary. But the question is, did the Framers envision that every single district court judge would be a complete check on the President or is the appropriate check at the Supreme Court level. Should district court judges issue the remedy that’s appropriate, then have it considered by the circuit courts, and if necessary, get up to the Supreme Court to be the ultimate check and the appropriate forum for a nationwide relief if that’s appropriate?”

 

So you have a separation-of-powers problem. You also have a percolation problem. We’re seeing a lot of really rushed decisions, and we’re seeing the ability for other courts not to be able to consider this issue. Because if it gets to the court first where the plaintiff gets the nationwide injunction, that it really forestalled any other litigation because all other litigation is moot. So you don’t have the ability for other courts to consider it.

 

Also, you have I think clearer forum shopping issues. Just as we saw a lot of litigation in Texas during the Obama administration, it’s not a surprise that you’re seeing a lot of litigation out of the Northern District of California these days because plaintiffs are going to the districts where they think they are most likely to get the broadest relief, and that’s a problem, and it undermines confidence in the judiciary that you’re getting impartial justice no matter where you go.

 

And, finally, I’ll just end with “Where are we today?” You’ve seen two cases where some of the justices, Justice Thomas and Justice Gorsuch, have commented on the propriety of nationwide injunctions and expressed some skepticism about them. And you’ve seen several stays of nationwide injunctions by the Supreme Court. You’ve got a case this term, which is going to be argued on May 6, called Trump v. Pennsylvania.

 

It’s the contraceptive mandate case where two states, New Jersey and Pennsylvania, asked for nationwide relief to stay the contraceptive conscience exceptions. And it's an independent question presented about whether or not nationwide injunctions are appropriate. We’ll see if the Court reaches that question and decides it. So I will leave it there for now. Thank you.

 

Dean Reuter:  Very good. Thanks to all three of our speakers. Let’s go right to the questions. I would like to now take our first call of the day.

 

Ed Heimlich:  Hi, this is Ed Heimlich in Austin, Texas. First of all, I want to say hello to General Paxton and Scott Keller, who I’ve met. General Paxton, I loved your introductory comments. And, yeah, my question is who has the authority to say what the law is? And I believe, as noted by General Paxton, it’s not a judge or even the entire judiciary. Our Constitution gave the power to say what the law is to the people by means of Constitution and then by means of the representatives that they’ve elected to make laws in pursuance thereof. So my question would be, then, is it not obvious that the question as to whether or not judges can issue nationwide injunctions a “no” because doing so is actually making law, and they have not been given that power by our Constitution?

 

Dean Reuter:  General Paxton, it sounds like that question’s addressed to you if you want to take a first shot at it.

 

Hon. Ken Paxton:  Sure. And I guess I don’t think the answer is necessarily “no.” The litigants are coming in front of judges to get answers to interpretations of law. Obviously, I don’t believe that judges are supposed to make law up, just as much as I don’t think that the Executive Branch or any agency should be making up law.

 

So, under our Constitution, we all know the Judicial Branch was given the authority to interpret law, and so I don’t think it’s a “yes” now. I think it depends on the situation, and I adopt the position more like Scott Keller. And he and I clearly took advantage of nationwide injunctions to stop an out-of-control President, who had decided that he wasn’t going to work with Congress after he lost the Democratic majority after his first two years. He decided that he wasn’t going to negotiate with them. He wasn’t going to work with them. It was just a strategy of making up law, and he thought he could make that stick. And but for the fact that the states stepped up and said “no,” everybody else may be standing by and saying that we’re going to let these laws that are being made up by the Obama administration, either through executive action or through agency, the states are not going to put up with it.

 

And had there not been this remedy, we could’ve gone to court, had standing, won our lawsuit, and really gotten no remedy that would've mattered and the Obama administration would've continued to be successful at imposing laws on all the states without going through the legislative process through our elected representatives.

 

And, for all the practical purposes, they were becoming irrelevant, and had the states not taken the role we took -- and it wasn’t just Republican states. There were Democrat states that joined [inaudible 25:50]. And Scott can tell you, we were very busy using the tools that we had to make sure that the Constitution, as the Founders put it together and so believed in, would stay.

 

Dean Reuter:  Scott Keller or Beth Williams, on this point.

 

Hon. Beth A. Williams:  Sure, Dean. This is Beth. I would just say that certainly the Judiciary needs to be a check on the Executive and the Legislative Branches. There’s no question about that. I think the only question is where does it make sense for the ultimate decision on that to lie? Should it be 1000 district court judges who can each independently be a complete stop to any executive program? It takes a little bit longer, obviously, for this check to work.

 

But once it gets up to the Supreme Court, when the Supreme Court decides, if the Supreme Court decides that there’s an executive order or a piece of legislation that’s unconstitutional or outside the powers of the branch, then when the Supreme Court decides that, that obviously has precedential value. And the position that DOJ has taken is that the check should be at that level rather than at the district court level.

 

Dean Reuter: Scott Keller, anything on this point?

 

Hon. Scott Keller:  No, I think that was well said, and next question.

 

Dean Reuter:  Let’s check in with another caller.

 

Tammy McCutchen:  Good afternoon, this is Tammy McCutchen from Littler. And I wanted to take a few minutes to ask you guys all about what I thought was the most important nationwide injunction during the Obama administration, which Mr. Paxton in Texas and a lot of state’s attorneys general joined myself and my partner, Maury Baskin, representing the U.S. Chamber of Commerce, and that was the nationwide injunction against the outrageous increase to the minimum salary level required for exemption under the FLSA. This regulation would have made every employer in the country reclassify as a non-exempt and pay overtime for employees earning less than $50,000 a year.

 

Now, that was a significant economic burden, and if it had applied just in states like Texas—where we brought the case and the state’s attorney generals brought the case—then there would’ve been employers who would treat some employees differently based solely on where they lived and their salary level. So I think that is one example of a nationwide injunction that was absolutely necessary in order to avoid national economic chaos, and I would like to have the panelists comment on that case and how that applies to the comments that you’ve made.

 

Hon. Scott Keller:  Yeah. I’ll step in on this. I think your pointing this out is -- it’s also important for a larger point. And, in the Trump administration era, many people challenging Trump administration policies have pointed back to, particularly, the Texas DAPA nationwide injunction, but also a few of these others obtained, such as that one, and then use them to assert the principle that if a federal government action is invalid, you should just get a nationwide injunction.

 

And General Paxton will tell you, and I will tell you, those were not the arguments that the State of Texas was making against Obama administration policies. Every time we, in the Texas Attorney General’s Office, ask for a nationwide injunction, we were explaining practically why that scope of relief was needed. And I pointed to the DAPA example, but I think this is another one, that when a litigant is asking for a particular remedy, I think all of us on this call agree, that they have to show that the injunction actually is tailored to addressing the legal violation and the harm that’s being suffered, which is also to say that—call it practical or functional analysis—I think is necessary in the equitable analysis of what courts are doing or are supposed to be doing.

 

And so I think you’re right to point to that example, but also, too, just in that bigger sense of “It should not be automatic that you get a nationwide injunction.” A quick caveat here with the courts have not directly interpreted or said precisely what the Administrative Procedure Act’s requirement in 5 U.S.C. § 706 says, which is that courts shall hold unlawful and set aside—emphasis on set aside—unlawful federal agency action.

 

So bracketing that debate—and there’s a wide-ranging debate on that aspect of this too—when you’re doing an equitable analysis, assuming that Congress hasn’t stepped in and spoken as to how it should be done, I think that practical analysis, that on-the-ground analysis about the actual harm and “is this tailored?” I think that’s a very key component to what courts should be doing here.

 

Hon. Ken Paxton:  And, Dean, let me just add to that. I think Scott summarized it, so I’ll just say this: I remember that very well because we got our nationwide injunction, I believe it was the night before the overtime rules were going to go into place, and so it was a tremendous relief, to us, knowing that not only is Texas protected from this made-up law by an agency but it protected the entire nation.

 

I think the caller’s right. Had that not been a nationwide injunction, it would’ve been very perverse to have a different overtime rule in Texas, a better one, than in other states. It would've given us an economic advantage for as long as it took to get to the Supreme Court and, again, assuming that the Supreme Court took it. But there’s no guarantee that despite this percolation, which I like, that they would've taken the case. So I do think in that particular case, that the caller suggested, it stopped economic havoc and disparities of how employers were going to have to treat their employees.

 

Dean Reuter:  Beth Williams, would you like to respond on this point?

 

Hon. Beth A. Williams:  Yeah. I guess what I would say is I think some of the concerns that are being expressed are very legitimate policy concerns, so having a uniform system of immigration or having one state not have an advantage over other with regard to certain economic incentives or systems.

 

But I think that those questions are really questions ultimately for Congress to decide if there’s an overriding policy reason to have something one way or another. Congress certainly knows how to do jurisdiction channeling. They’ve put several important statutes into the sole purview of the D.C. Circuit to decide, and if they wanted to organize it that way, they certainly could.

 

The question is do you want district court judges deciding, and really making policy decisions, and saying, “Even though I know this relief is not necessary or is overbroad to completely remedy the plaintiff’s injuries before me, I think that it would be better for the countries economically for X, Y, or Z to happen. Are those considerations the appropriate ones for judges to be making or are they better left in the political branches?

 

Hon. Scott Keller:  Well, and then also, though, it does bring up how do we get to this point where we have all these courts issuing a lot of nationwide injunctions. I think the biggest factor probably is that Congress is not legislating the number -- enacting laws, at least, to the same numbered quantity amount that it used to, and so what that means is presidential administrations are using the federal agencies, the administrative state, to accomplish some of these policy shifts.

 

And what that means, then, for a litigating standpoint, if you’re a state attorney general or a state solicitor general, you are going to have significantly more options in challenging a federal administrative action than you would if Congress passed a law. So, obviously, a lot of, I think, what’s happening here too is the decisions aren’t necessarily being made in Congress. Instead, it’s at the federal agency level, and so that adds this additional opportunity, as General Paxton said, for states to have standing to challenge federal administrative actions, and then you get the opportunities for these wide-ranging nationwide injunctions.

 

Hon. Ken Paxton:  And I’ll just add that I think, Scott, when you did your opening remarks, you addressed the APA language that I think opens the door for us to challenge agency actions. And I do think there’s a difference between federal statute that Congress has actually voted on, our elected representatives have thought about and debated, and had open to the public as opposed to an agency action which -- especially if they didn’t follow the procedures that are outlined in the APA, or if in some way, it’s outside what federal law allows, I think it’s perfectly reasonable for the states to have both standing and a remedy that would eliminate these agency actions that will have disparate effects across the nation.

 

Dean Reuter:  Let’s check in with our next caller.

 

Caller 3:  Hi. I’m calling from Connecticut, and terrific panel. I very much appreciate the great comments and the hard work that all three of you have done on these issues. My quick editorial comment, then my couple of quick questions. My editorial comment is I think that executive orders should be used extremely sparingly. I think that anything else creates great risk and great risk in general to our system. I’d rather see executive orders issued only for circumstances such as the virus that we have now, or wartime, or something like that. So that’s my editorial comment. That’s why we create these situations.

 

I go back to the -- I think the nationwide injunction issue began originally in Washington State, if I’m not wrong, where the attorney general there got a favorable ruling on a nationwide injunction back in 2016 or ’17 against President Trump’s restriction on people coming in from certain countries. The issue there, for me, was that at the same time in the state of Massachusetts—I think it was Massachusetts—there was a decision by a district court there that went the other way, and I could never understand why with those two conflicting decisions, split decisions, there was an immediate appeal to the appellate court rather than dealing with it on the basis of nationwide injunctions. That’s questions one.

 

Number two, very quickly, is I never could find out where the constitutional or other authority was for the issuance by one court of nationwide injunctions. So those are my questions. Thank you very much.

 

Dean Reuter:  Scott Keller, that might be addressed to you.

 

Hon. Scott Keller:  Sure. I’ll take that later question. So the Supreme Court has interpreted the equitable power of courts to resolve Article III cases or controversies to extend to issuing injunctions that would allow a systemwide remedy, or a nationwide remedy, if a systemwide or nationwide violation is shown.

 

Now, you can debate that principle, and there’s a debate going on among academics and jurists right now that maybe that’s not a correct interpretation of Article III case or controversy requirement, but that is a well-established principle under modern Supreme Court doctrine that the unanimous Supreme Court in the 1970s in the school desegregation context said that is the principle that was operating there.

 

Now, as Beth said, earlier, when you talk about school desegregation orders, of course, how do you issue an injunction that would just be for a party plaintiff and not for an entire school? Regardless, that’s, at least, how the court is conceived of its power, and that gets into some of the facial versus as-applied challenge dynamics of more modern Supreme Court precedents.

 

So that’s where it’s coming from. It’s coming from Article III, the case-or-controversy requirement, and there is a debate as to what the scope of that equitable power actually should be. But, at least, since the 1970s, it’s been pretty clear from the Supreme Court that that is a permissible use of Article III power.

 

Hon. Beth A. Williams:  Yeah, and I would just respond to that. I certainly understand where Scott’s coming from, but I think you can reconcile the school desegregation cases with the courts general understanding of its Article III power for the reasons I said. Because I think that there’s a strong case that, in that situation, relief beyond the parties is necessary in order to give the party relief.

 

But there’s been two recent cases. There was the Town of Chester v. Laroe Estates in 2017, where the Court said a plaintiff must demonstrate standing for each form of relief that is sought, and then you have the Gill v. Whitford case in 2018, which I know Senator Holly and others talk about a good deal, which said that Article III requires a plaintiff’s remedy to be limited to the inadequacy that produced his injury in fact. So you’ve had positive statements by a majority of the Court, in the past couple of years, really reaffirming this, I think, well-understood limitation on a court’s equitable powers for standing reasons than others.

 

Dean Reuter:  General Paxton, anything on this point?

 

Hon. Ken Paxton:  No. I think I’m ready for the next question.

 

Dean Reuter:  Great. Let’s turn to our next caller.

 

Roberto Santana:  Good day to the distinguished panelists, moderator, and to all the listeners. My name is Roberto Santana. I’m a partner at Del Toro and Santana litigation boutique law firm in San Juan, Puerto Rico. My question is how do you, in terms of procedure, undertake obtaining a nationwide injunction? Do you, for example, try to get as many jurisdictions as possible involved in multi-district litigation before applying for the injunction?

 

And then wouldn’t due process require service of process on anyone that the injunction order is intended to apply? Could one of you, or all three panelists, please walk us through the procedure and how do you go about serving an order that has to have immediate effect to someone who is in another state? Thank you.

 

Hon. Scott Keller:  Yeah, so usually when we’re talking about nationwide, or statewide, or systemwide injunctions, you’re talking about a lawsuit against a particular government official, and that government official or that government agency would be the sole agency that would be trying to affect the law that is being challenged.

 

And so these usually take the form of a lawsuit brought on behalf of some plaintiffs against that particular government official, and then in the course of litigating that case, whether it’s in the form of a preliminary injunction motion or a summary judgement notion, in the remedial request that the plaintiffs are making is an injunction that that government official cannot enforce that law against anyone.

 

So there’s usually not the practical problem of having to go serve a bunch of different people. And this is part of one of the objections to nationwide injunctions is that “Well, maybe, other plaintiffs should have to sue that government official.” But as far as the practicalities of it, usually, that aspect is not there because it’s just a lawsuit against that one particular official that we try and do -- affect the law anywhere.

 

Dean Reuter:  Either of our other guests on this topic?

 

Hon. Ken Paxton:  I always let Scott do all those serving of the lawsuits. I think his answer was good for me.

 

Dean Reuter:  Beth Williams?

 

Hon. Beth A. Williams:  Yeah. I think that’s exactly right. I hate to give litigation advice for how to get nationwide injunctions, so I’ll leave at that.

 

Dean Reuter:  Fair enough. Let’s turn to our next caller.

 

Juscelino Colares:  Hi. This is Juscelino Colares from Cleveland. Attorney General Barr wrote an insightful op-ed last September, I think, in The Wall Street Journal, in which he indicated that the grants of such nationwide remedy not only disrupts the possibility of political compromise but decentivizes political compromise by allowing one party or another to obtain the result they seek, but they can’t obtain to a legislative means by judicial fiat.

 

So besides the limitations on the standing for such actionable, equitable power, discussed here today, wouldn’t some judiciary response, preferably, of course, one based on a legislative solution that would afford superior fair federal courts an expedited decision or some, perhaps, informal mechanism through the action in the powers of the Chief Justice, to basically remind the federal district court judges that they need to be very fair and circumscribed in their decisions so that you would, at least, devise a method that would signal some sort of social sanction or, if not, immediate reaction to your granting something like this.

 

Because I think that some judges may be more leaning towards this approach because they might want to see their names mentioned nationally. There, of course, they’re more reticent. They’re more responsive. They don’t like to be reversed, which is a traditional way to proceed. But with some sort of compromise -- could some sort of compromise be reached here either through a preferred legislative solution that seems to be fairly neutral through the grant of an extradited review on these things?

 

Dean Reuter:  Who wants to take a shot at that one?

 

Hon. Ken Paxton:  Well, I’ll just take --

 

Hon. Beth A. Williams:  -- I’m happy to.

 

Dean Reuter:  Go ahead, Beth Williams.

 

Hon. Beth A. Williams:  Go ahead, General Paxton. Oh, I was just going to say I think that that’s -- it’s a really interesting idea, and it’s one that I think has been considered by some legislatures, and there is a bill by Senator Cotton currently out there on nationwide injunctions. I think what you’ve seen is a little bit more caution, of late, than you had before. I think in 2017, 2018, you were just seeing courts issue nationwide injunctions left and right, and with some of the statements by some of the justices of the Supreme Court and some of the stays, I think you’re seeing a little more caution than you have before, but some of these expedited review ideas are ideas that I believe are being considered in Congress.

 

Dean Reuter:  General Paxton, it sounded like you might have something here.

 

Hon. Ken Paxton:  Yeah. I don’t have a -- I’m certainly open to Congress debating this in the way that they know they would, and vetting new ideas, but at the same time, I also know that judges -- we’re going to have good judges, bad judges. We’re going to have judges that are making good decisions. We’re going to have judges making bad decisions. I don’t think that can be the test for whether our system is working. It’s just the way it is. Nothing’s going to be perfect ever.

 

So, at least, for the time being, I think there’s no better way with the balances, as Scott and I both talked about, and not that it needs to be something that relates to a nationwide problem. I don’t think there’s a better way for, at least, we at the state level, to address [audio cut out 46:31] by Congress, necessarily, but created by agencies that are – like the fourth branch of government. That’s where most of our lawsuits have been directed—or by overreaching executives. So if we don’t have that ability, that definitely gives the agencies, who are not representative government, significant power and increased power that I don’t think they should have.

 

Dean Reuter:  We’ve got about ten minutes left. Looks like three questions pending. Let’s see if we can through all of these. Bear with us. Go right ahead, caller.

 

Caller 6:  I appreciate your comments about there being good judges and there being bad judges, but the fact is that, statistically, we know that the Ninth Circuit has the most overturned decisions of any circuit in the nation. And I think what offends me the most about the nationwide injunction is the forum shopping aspect. Is there some way to reign in the forum shopping, for instance, by consolidating all of these nationwide injunction cases in the D.C. Circuit that would prevent this from occurring in the future?

 

Hon. Scott Keller:  There are certain statutes that already direct that, particularly in the environmental area, that challenges must be filed in the D.C. Circuit for certain cases, and, of course, Congress could create those statutory provisions. Now, whether that would actually take care of all the concerns you’ve expressed, it’s unclear. You at least, then, would have one single court that would be adjudicating those below the Supreme Court, and that would just simply be the forum that you get.

 

Another proposal that I believe Fifth Circuit Judge Costa suggested was maybe when we’re talking about nationwide injunctions, maybe, this should look more like redistricting litigation. That if you’re going to ask for a nationwide injunction, you should get a three-judge district court, rather than a single judge, and then there should be a direct appeal to the U.S. Supreme Court.

 

Now, I don’t think that would obviously increase Supreme Court litigation. It would require the Supreme Court to take those cases, but that’s another possible solution. Again, I don’t know how feasible any of these legislative proposals would be, but there’s certainly been a lot of thought on it and a lot of thought about the problems of the current status quo.

 

Dean Reuter:  Beth Williams, [CROSSTALK 48:51] --

 

Hon. Beth A. Williams:  Yeah, I --

 

Caller 6:  Well, thank you. I think that is actually a good suggestion. Go ahead. I’m sorry.

 

Hon. Beth A. Williams:  No. And I would just add to that. There also is a framework currently in place, and it’s the class action framework, where you have a lot of similarly situated plaintiffs, and you feel like you need relief immediately for a large group of people. We already have a process for that, and I think what you’ve been seeing is that plaintiffs and courts are completely bypassing that system completely. And that system that’s already laid out has a lot of protections for similarity of injury, for uniformity, for making sure that the people who are in the class actually have redressable injuries.

 

And you query why it’s being kind of cast aside, it seems like what the plaintiffs have been saying in a lot of these cases, where they’re seeking nationwide injunctions, is “This is just so important that we can’t be bothered to go through that process.” And I think that seems to be a problem because that process is there for a reason to make sure that people have redressable injuries and that the court can appropriately remedy cases and controversies, but that also makes sure that the courts don’t go further than their power would allow them to, while also allowing them to address a lot of similarly situated problems all at once.

 

Dean Reuter:  I wonder if Scott Keller or General Paxton want to weigh in on the idea of using class action rules and systems in place for nationwide injunctions?

 

Hon. Scott Keller:  Yeah. There are a couple issues with it. First of all, when you’re talking about a nationwide injunction -- and you see this all the time in various lawsuits here that you have a coalition of state attorneys general from certain states supporting a federal government action, and then you have a coalition that is challenging it. And, at least, from the standpoint of just whether states would be agreeing or objecting to class status, you probably just have really a collateral threshold attack as to whether this should be class certification when some states like a policy and some states don’t like a policy. So I’m not sure that that is necessarily a feasible or practical option.

 

Now, I suppose the response to that would be “Well, if some states want a policy and other states don’t want a policy, then, maybe, we shouldn’t have a nationwide injunction.” But the problem with that—and we saw this in the DAPA context—a federal agency action is either lawful or it’s not, and when you’re talking about the scope of the remedy, if there really is a legal violation, and the state challenging that really does need that remedy to insure that it’s not going to be harmed, then it's unclear why just because a different state would like that policy or believe that it’s lawful, even though courts said it’s unlawful, that that should control the remedy that the actual plaintiff does get. So it’s not as clear-cut as it would otherwise seem.

 

Dean Reuter:  We’ve still got some questions pending. Let’s see if we can get through as many as possible. Just five minutes now, so I’ll ask our callers to be as concise as possible with their questions. Go right ahead, caller.

 

Kevin Connaught (sp):  Hello. My name is Kevin Connaught, and I’m not a litigator, but I have a question, and perhaps I don’t understand it, but the answer was alluded to by Miss Williams, and I don’t understand how one plaintiff or two plaintiffs can bring an action and then enjoin a federal agency on behalf of people who are not plaintiffs without going through the class action. I guess I find that sort of hard to wrap my mind around.

 

Dean Reuter:  Anybody want to respond quickly to that one?

 

Hon. Scott Keller:   Yeah. I think that ultimately comes down to just the court issue here that if you think that the Article III power to resolve cases or controversies should be limited solely to providing relief only to a named plaintiff, full-stop, then you’re going to have significant objections to any form of a non-party injunction. But, again, that wouldn’t just apply to the federal government. That would also apply to trying to challenge state governmental laws. And that’s the debate that’s being had right now.

 

But the Supreme Court and, basically, federal courts, since certainly the 1970s, for the last 50 years, have said that that actually is not the limit on a court’s equitable power when fashioning remedies for unlawful governmental actions. And part of that comes back to – we’ve talked about the school desegregation context and some other contexts, but it also arises when you’re talking about any constitutional right litigation.

 

First Amendment free speech overbreadth challenges, I think, are a great example of that where you have courts that are entering remedies saying that law is completely invalid even though the particular party that’s litigating it maybe would be lawful as applied to them, but we’re going to ensure that speech is not chilled, and therefore that law will be struck down.

 

That’s an example of a -- not a nationwide policy, necessarily, but granting an injunction beyond the actual parties. Again, whether this is properties of Article III case or controversy adjudication is being debated right now, but, at least, for the past 50 years, the courts have recognized that courts did have that power.

 

Hon. Beth A. Williams:  Yeah. And I would just say I think Scott enunciated really well the argument. I think the argument in favor of it is to say, “Well, if the law is unlawful to me, as to me, it’s unlawful as to everyone.” If it’s an unlawful law, why should it still be in place? The problem practically is that when one single district court judge decides it’s unlawful, even if 50 other district court judges think it’s lawful, the one who thinks it’s unlawful always wins because he’s the one who issues the nationwide injunction and stops it as to everyone. So you’ve really got a huge imbalance of power as a result of one judge ruling that it’s unlawful regardless of how many others disagree.

 

Dean Reuter:  But I want to give each of our guests a chance to wrap up and maybe address that question. And I’m curious as to whether or not there’s ever been a nationwide injunction issued by a second district court judge after a first district court judge has denied the same action. But let’s, in final thoughts here, go in the same order we opened. Scott Keller.

 

Hon. Scott Keller:  Well, Dean, thank you very much. This has been a fantastic discussion. It’s always a pleasure to be on a panel with my former boss, Attorney General Paxton, and Beth Williams. I think it’s safe to say that until there is additional clarification from the U.S. Supreme Court on this issue, we’re going to be continuing to have these debates. And we should have these debates. I think the most important aspect of this entire debate is ultimately we need neutral principles, and it is hard in some of these politically sensitive cases when people feel very strongly about the underlying policies contained in these actions that are being challenged to try to come up with neutral principles.

 

But just as in the Obama administration years, when the State of Texas was saying there will come a day where there will be another presidential administration, that still holds true today, and it will always hold true. And so when we’re thinking about what rules should be in place, you should be thinking about a presidential administration that you agree with, and you should also be thinking about a presidential administration you disagree with. And coming to those neutral principles that, then, all litigants will know, that is the path forward that we -- and I believe the Supreme Court will provide at some time in the near future.

 

Dean Reuter:  Attorney General Paxton, a final thought.

 

Hon. Ken Paxton:  Yeah. So, Dean, I’m really disappointed in the call because I think you told us by the end of the call, we’d all agree on this issue, and clearly, we haven’t gotten there. So [CROSSTALK 56:56]—

 

Dean Reuter:  [Laughter] I don’t recall having said that.

 

Hon. Ken Paxton:  Well, maybe, I missed that. So I would say this in closing: I’m really grateful that we had the opportunity to, one, get into court on some of these issues of overreach from the Obama administration because I think, as I said at the beginning, had we not done it, had Texas had not done it, had the other states not done it, we would be looking at a very different Constitution now with the power of the presidency being much greater and the power of states being very lessened; the power of Congress being lessened, and the power of the courts being lessened. So whatever the right answer is, I’m glad we had that opportunity, and I don’t think we’d be looking at the same Constitution had we not had that opportunity. So I know things will change in the future, but, hopefully, the states will always have a way into court and a way to protect their interests.

 

Dean Reuter:  The final word goes to Beth Williams.

 

Hon. Beth A. Williams:  Great. So, Dean, to answer your last question: has the court ever issued an injunction after another court decided not to? Absolutely. And I point you to Justice Gorsuch’s concurrence in the stay for DHS v. New York. And, in that case, the Ninth Circuit decided not to issue a nationwide injunction and reversed in a nationwide injunction. And then the Fourth Circuit also denied the nationwide injunction. But you had a single district court judge in New York that basically overruled six circuit court judges by issuing a nationwide injunction. So it’s absolutely happened.

 

      But I want to echo my co-panelists, it’s always a pleasure to talk about this, but it’s really been a pleasure to talk about it with them and to be able to share some of these really important issues with The Federalist Society and with others, so thank you very much for the opportunity.

 

Dean Reuter: Well, thank you, all. My personal thanks and thanks on behalf of The Federalist Society to our three guests, Scott Keller, the Attorney General Ken Paxton, and Beth Williams. I want to thank our audience for dialing in as well and remind you that this is our Executive Branch Review Week. We have a series of webinars we’re promoting tomorrow morning. Feel free to share the link at fedsoc.org to those webinars. They’re open to the public and the press, and then a series of teleforum conference calls throughout the week. But until the next call, we are adjourned. Thank you very much, everyone.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups and to become a Federalist Society member, please visit our website at fedsoc.org.