Wednesday, January 29, 2020

Thoughts on Public Charge Stay Order and Nationwide Injunctions by Geoffrey A. Hoffman


Thoughts on Public Charge Stay Order and Nationwide Injunctions

By Geoffrey A. Hoffman*

On the issue of nationwide injunctions, it is interesting that this is where the concurrence in the public charge case chose to center its discussion. Instead of dealing head-on with any of the substance of the stay order including any equitable factors or with the administration's policy expanding the definition of public charge in DHS's Final Rule, the linchpin for Justices Gorsuch and Thomas appears to be nationwide injunctions. The concurrence picks up the baton where Justice Thomas left off in the travel ban case in his concurrence in that case. There needs to be a full discussion of why we need nationwide injunctions, especially if a defendant is a federal agency. The fact that no justice decided to dissent in the public charge case is interesting. It is also troubling, again as we saw with the MPP stay order decision from the high court last September, that there was no opinion issued to explain the granting of the stay in favor of the government.

The theme of nationwide injunctions is most convenient. It allows the high court to sidestep the issues, to premise any stay decision on procedural, logistical or mechanical considerations while undermining any preliminary injunction that forces the government to hold-off on potentially disastrous and ill thought-out policies. Given the fact that some of these cases are class actions, where the class is potentially nationwide, it seems that that would militate toward solidifying the argument for a nationwide class. By harping on the procedural inconveniences of 'universal' or 'cosmic' injunctions, as Justice Gorsuch put it, the justices have hit it upon a good way to always reverse injunctive relief against any party that goes beyond a very restrictive, limited or specific geographic area.  But this is not a case where a private party is trying to enjoin behavior of a similarly situated private defendant who is operating within a limited area. Quite the contrary.

It makes no sense to decry the unfairness of a nationwide injunction when you are dealing with a national policy, the defendant is an agency of the federal government operating nationally, the issue is an immigration policy, and the parties impacted include potentially everyone who comes into contact with USCIS who seeks adjustment of status. It makes no sense to reject a nationwide class when the policy is applied to all applicants for adjustment in every district office across the U.S. In terms of the legal authority for injunctive relief against the government, there is that line of cases talking about the need for national uniformity surrounding immigration policy, and the Supreme Court has time and time again consistently held that immigration is exclusively a matter for the federal government, with a few exceptions. See e.g. Arizona v. United States, 567 U.S. 387 (2012). 

As far as a recent case where an injunction designed to stop DACA and allow the rescission to proceed was denied to the government.  In that case it is worth reviewing the important decision at the District Court level of Judge Hanen in Texas v. United States. There, the judge went through very thoughtfully all the factors for the stay application and concluded it was not in the public interest. Judge Hanen's decision should be a template for what courts should consider in assessing the need for injunctive relief in the public charge context. In Judge Hanen's case he was very faithful to what the balancing of factors for injunctive required. He correctly came to the conclusion that a fair balancing of the factors led to the conclusion that injunctive relief in favor of the government would not be in the public interest.  Importantly, Judge Hanen did this even while at the same time expressing his concerns about the legality of DACA.  

Why did the Supreme Court not do the same in assessing the request for a stay in favor of the government here? This is especially so when it appears that the public charge issue may possibly be a bigger disaster than DACA rescission, MPP, and other policies of the administration. If the administration wanted to fashion a rule to routinely deny adjustment (and consular decisions) to people who do not meet its ideal for intended immigrants, it could not have hit upon a better pretext.  By enlarging the definition of public charge and heightening this “heavily weighted negative factor" for people who have shown an economic need in the past, many families are at risk, including U.S. citizen children, who will be harmed by this policy.

By saying all this, I do not discount the potential inconvenience and problems with having various federal judges in different districts issuing possibly conflicting injunctions.This is called the problem of "dueling injunctions," which Judge Hanen also considered when he rejected the government's request for an injunction in the DACA litigation. While "dueling injunctions" could potentially be a problem, it is true, it is important this was not the issue with the stay order in the public charge case. The government was not being asked to affirmatively grant anybody's case even if they had a ground of inadmissibility related to public charge. The lower court instead was enjoining a policy that should not be put into effect while the litigation continued to determined whether on its face the new policy conflicted with the APA, the INA or was constitutionally defective. Instead of voicing concerns about dueling injunctions, it appears Justices Gorsuch and Thomas were concerned with the imposition of nationwide or universal injunctions which would be used (according to their view) to game the system, i.e. allow someone to forum shop and try to win their injunctive relief in any of the 94 districts or any of the 12 circuits. However, taken to its logical conclusion this argument this point by the concurrence is really a veiled attempt to allow unfettered governmental action immune from anyone ever pursuing injunctive relief. 

Whenever anyone seeks a TRO or injunction against a governmental agency they necessarily do not want the government to circumvent the ruling by doing the enjoined activity just in another location. It is not about what happens in this or that state or district office, but about whether the proposed governmental policy is so dangerous that it must be reigned in pending a final ruling on the merits. Justices Gorsuch and Thomas' concurrence in the public charge case unfortunately wholly ignored this essential point.

*Geoffrey A. Hoffman is a clinical professor and director, Immigration Clinic, at the Univ. of Houston Law Center; in my Personal Capacity and institution for identification only.


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Four justices did dissent from the lawless stay grant. Can't tell what they thought about the concurring. But, it's ominous for our democratic institutions and humanity. Obviously, JR and his gang are buying into the Neo-fascist philosophy of the regime and its assault on human rights and dignity: dehumanization is the key here.

I commented briefly on Courtside here:

Posted by: Paul Wickham Schmidt | Jan 29, 2020 10:19:29 AM

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