(Reuters) - The ACLU scored a gigantic win Tuesday night for migrant families. U.S. District Judge Dana Sabraw of San Diego issued an injunction prohibiting the Trump administration from separating migrant parents from their kids at the U.S. border and requiring immigration officials to reunite families already separated. The judge’s order applies to migrant parents and children across the country.
Meanwhile, at the U.S. Supreme Court on Tuesday, Justice Clarence Thomas issued an opinion casting doubt on the scope of nationwide injunctions in Hawaii’s challenge to President Trump’s travel ban. The court, as you know, ruled in an opinion by Chief Justice John Roberts that the ban targeting several Muslim-majority countries was justified under the president’s authority to decide who gets to enter the U.S. The court as a whole did not decide whether a federal trial judge in Hawaii exceeded his power when he issued an injunction barring enforcement of the travel ban across the entire U.S. Justice Thomas, in a concurrence, suggested he did – and said that if trial judges continue to issue sweeping injunctions to block presidential policies, the Supreme Court will have to step in to make sure judges are not abusing “historical limits on equity and judicial power” to remake nationwide policy as they see fit.
The difference between the injunction in the ACLU case and the injunction in the travel ban case could turn out to be crucial. The ACLU brought the case as a class action, in which the two migrant moms named in the complaint represent the interests of almost all immigrants entering the U.S. with their children. Judge Sabraw certified the case as a class action at the same time he issued the injunction, which means, technically, that all migrants in the class are parties to the case in his courtroom.
By contrast, the injunction in the Hawaii case extends beyond people who appeared in Hawaii’s case, or even in the companion challenges to the travel ban. Hawaii’s Attorney General obtained the sweeping injunction in a suit brought on behalf of the state. When the trial court in Honolulu found the travel ban to be unconstitutional, he barred its enforcement across the country.
These nationwide injunctions, sometimes called national or universal injunctions, have, as Justice Thomas documented, become a powerful weapon for states opposed to a president’s policies. The boom in these sweeping prohibitions began when Texas and other red states sued successfully to block Obama immigration policies. Since President Trump took office, Democratic state attorneys general have obtained nationwide injunctions blocking his administration, at least temporarily, from enforcing the travel ban, the ban on transgender troops, the rescission of Obama-era protections for immigrants brought to the U.S. as children and the Justice Department’s refusal to grant certain discretionary funds to so-called sanctuary cities.
Justice Thomas’s concurrence does not, on its own, portend the end of nationwide injunctions in suits by opposing state AGs. But two law professors who have written skeptically about the devices – and are cited approvingly in Justice Thomas’s opinion – told me Wednesday that the Supreme Court has also signaled concern about sweeping injunctions in other cases this term.
Notre Dame professor Samuel Bray pointed to Chief Justice Roberts’ June 18 opinion in the Wisconsin gerrymandering case Gill v. Whitford, in which Roberts said the court’s constitutional role is “to vindicate the individual rights of the people appearing before it.” Michael Morley of Florida State focused on another Roberts opinion, May 14th's U.S. v. Sanchez-Gomez. The court said four criminal defendants who sued California for requiring them to be in hand and leg cuffs during all court appearances did not have standing because their underlying cases had ended and they hadn’t sued on behalf of other prisoners. Morley said the outcome suggests the Supreme Court is not eager to allow decisions to encompass people who aren’t part of cases.
Bray and Morley predicted that the Supreme Court will sooner than later rein in nationwide injunctions in cases brought by state or local officials. U.S. Attorney General Jeff Sessions is pushing hard for that outcome. His Justice Department earlier this month persuaded the 7th Circuit Court of Appeals to consider the scope of a nationwide injunction issued in Chicago’s challenge to DOJ’s policy of denying some funding to sanctuary cities. On Tuesday, the appeals court temporarily stayed the injunction for cities and states other than Chicago, which was the only plaintiff in the case.
That stay doesn’t necessarily mean the 7th Circuit will end up deciding judges can’t issue nationwide injunctions, said Bray, but it shows “continued suspicion as the 7th Circuit takes account of what’s happening at the Supreme Court.” The appeals court, he said, wants to make sure that when the Supreme Court ultimately decides the proper scope of injunctions in cases like Chicago’s, it has a fully developed record. “The national injunction,” Bray said in a blog post at Volokh Conspiracy, “is moving from a simmer to a boil.”
Let’s assume Bray and Morley have read the tea leaves correctly and the Supreme Court is poised to restrict the scope of nationwide injunctions in cases by state and local officials challenging White House policies. Does that mean the end of broad prohibitions on potentially unconstitutional presidential actions?
It does not – and here’s where the ACLU’s class action strategy comes in.
The controversy over injunctions in AG suits arises when trial judges impose their orders on people who aren’t part of the cases before them. But when judges issue classwide injunctions, everyone covered by their orders is before them, either as a defendant or as a member of the class. That is a crucial distinction, said Notre Dame prof Bray. “Class actions are a much better vehicle” for national injunctions, he said. “The whole class is legally represented in court.”
Law professor Alexandra Lahav of the University of Connecticut, a class action procedure expert, told me that civil rights advocates have been relied on sweeping class action injunctions to challenge state and federal policies since before the modern federal rules of procedure for class actions were adopted in 1966. In fact, according to a post Lahav and three other law profs wrote for the Harvard Law Review last month, the class action rules were drafted with these cases in mind, “to address precisely the scenario where a government policy systematically denies a group of plaintiffs a meaningful opportunity to vindicate their rights.”
Due process challenges against government agencies – exactly like the ACLU’s family separation case – have been considered particularly appropriate for sweeping class action treatment, the profs wrote, because “they often raise generic questions about how uniform hearing procedures impact a group of people who depend on them for relief.”
Moreover, as Florida State professor Morley told me, the Supreme Court has blessed the use of a nationwide class action injunction. In 1979’s Califano v. Yamasaki, the justices said in case involving due process claims by certain Social Security recipients denied a hearing that it’s within trial judges’ discretion to certify nationwide classes.
The court may yet have more to say on the propriety of national class action injunctions. Lahav and her colleagues, for instance, wrote the Harvard blog post in response to dicta from Justice Samuel Alito in February’s Jennings v. Rodriguez. In the Jennings case, the Supreme Court reviewed a class action by immigrants challenging indefinite detention following deportation orders. The court said reversed a 9th Circuit ruling that limited detention without a hearing to six months and remanded the case. In dicta at the end of his majority opinion, Justice Alito said that on remand, the lower courts should reconsider whether the class action for injunctive relief “is an appropriate way to resolve respondents' Due Process Clause claims” in light of the Supreme Court’s tightened standards for certification of classes in cases seeking monetary damages. And Morley believes the court’s 1984 precedent in U.S. v. Mendoza, a case addressing the preclusive effect of previous rulings on the constitutionality of government policies, already discourages nationwide class action injunctions.
That’s obviously a fight for another day and another court. For the time being, Trump challengers have both nationwide and classwide injunctions at their disposal, and if they lose the former, they can continue to rely on the latter.