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The Fifth Circuit Made Me Do It

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Another national injunction, in another case called Texas v. United States, and again there’s hand-wringing by the judge who issues it. The judge indicates that he has serious reservations about the propriety of national injunctions, but he considers himself constrained by Fifth Circuit precedent. And so, because federal immigration law needs to be uniform, there’s a national injunction. You can read the opinion here. For the scope of the injunction, pages 151 to 156 are the relevant part. Brief observations (with no. 3 being the big one):

First, this is untenable situation. Very consequential decisions, setting policy for the entire federal government, are made without the judges making them even defending the remedial scope of their decisions as being correct–rather, the scope of the injunction is defended on the basis of circuit court precedent.

Second, the Biden administration needs to be more aggressive in going after the national injunction. Prudential arguments are not enough, and if the SG’s office doesn’t succeed in stopping the national injunction, it will stop most of what the administration tries to do (just like the end of the Obama administration and the entirety of the Trump administration).

Third, we need to rethink from the ground up the law of administrative remedies. For all the debate about the relationship of “vacatur” and “remand,” we missed the part that was really questionable. It wasn’t remand, it was vacatur. The misconception that judges act on rules or statutes is the conceptual mistake that drives a lot of national injunctions. For example, on p. 156, the court says:

Specifically, the Court enjoins (1) Section B of the January 20 Memorandum, and (2) the sections from the February 18 Memorandum entitled “Civil Immigration Enforcement and Removal Priorities” and “Enforcement and Removal Actions: Approval, Coordination, and Data Collection.” (Dkt. No. 1-2 at 4–8).

From any kind of traditional perspective on equity, this is just baffling. The court enjoins a section of a memorandum? People get enjoined. Injunctions protect people from people. Or require people to do things. And, as codified in FRCP 65(d)(2), injunctions can apply to people who act in concert with the people who are enjoined–not to texts that act in concert with the texts that are enjoined.

It matters what the injunction is and what it’s supposed to do, because–as John Harrison has shown–the remedies under the APA are supposed to be the ordinary remedies. There is no “set aside” remedy–that reference isn’t even in the APA section on remedies.

So, a cursory proposal: In the administrative context–

  1. injunctions should be used for protection: they should protect plaintiffs (or plaintiff classes) from the enforcement actions of government officers;
  2. when the problem is not with end-of-the-line enforcement, but rather is upstream, such as a failure in the process of creating a rule or policy, the proper remedy is not an injunction but mandamus, which has a different logic and is focused not on the protection of the plaintiff but on the officer’s performance of a legal duty;
  3. the fact that mandamus has its own limiting principles, such as the need to show a clear violation of a legal duty, means that some close to the line violations will not be remedied;
  4. point three is a feature of this proposal.


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