[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
THE ROLE AND IMPACT OF NATIONWIDE INJUNCTIONS BY DISTRICT COURTS
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HEARING
before the
SUBCOMMITTEE ON
COURTS, INTELLECTUAL PROPERTY,
AND THE INTERNET
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
NOVEMBER 30, 2017
__________
Serial No. 115-48
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
32-475 WASHINGTON : 2018
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
DOUG COLLINS, Georgia JAMIE RASKIN, Maryland
RON DeSANTIS, Florida PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
Shelley Husband, Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Courts, Intellectual Property, and the Internet
DARRELL E. ISSA, California, Chairman
DOUG COLLINS, Georgia, Vice-Chairman
LAMAR SMITH, Texas JERROLD NADLER, New York
STEVE CHABOT, Ohio HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
JIM JORDAN, Ohio THEODORE E. DEUTCH, Florida
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania HAKEEM S. JEFFRIES, New York
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
RON DeSANTIS, Florida BRAD SCHNEIDER, Illinois
MATT GAETZ, Florida ZOE LOFGREN, California
ANDY BIGGS, Arizona STEVE COHEN, Tennessee
LUIS GUTIERREZ, Illinois
C O N T E N T S
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NOVEMBER 30, 2017
OPENING STATEMENTS
Page
The Honorable Darrel Issa, California, Chairman, Subcommittee on
Courts, Intellectual Property, and the Internet................ 1
The Honorable John Conyers, Jr., Michigan, Ranking Member,
Committee on the Judiciary.....................................
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the
Judiciary...................................................... 11
WITNESSES
Professor Samuel Bray, Professor of Law, UCLA School of Law
Oral Statement................................................. 4
Professor Amanda Frost, Professor of Law, American University
Washington College of Law
Oral Statement................................................. 6
Professor Michael T. Morley, Associate Professor of Law, Dwayne
O. Andreas School of Law, Barry University
Oral Statement................................................. 8
Mr. Hans von Spakovsky, Manager, Election Law Reform Initiative
and Senior Legal Fellow, Institute for Constitutional
Government, The Heritage Foundation
Oral Statement................................................. 10
THE ROLE AND IMPACT OF NATIONWIDE INJUNCTIONS BY DISTRICT COURTS
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THURSDAY, NOVEMBER 30, 2017
House of Representatives
Subcommittee on Courts, Intellectual Property and the Internet
Committee on the Judiciary
Washington, DC.
The subcommittee met, pursuant to call, at 2:00 p.m., in
Room 2141, Rayburn House Office Building, Hon. Darrell Issa
[chairman of the subcommittee] presiding.
Present: Representatives Issa, Goodlatte, Chabot, DeSantis,
Gaetz, Biggs, Nadler, Johnson of Georgia, Lieu, and Schneider.
Staff Present: Joe Keeley, Chief Counsel; Carlee Tousman,
Clerk; and Jason Everett, Minority Counsel.
Mr. Issa. The subcommittee will come to order. The
Subcommittee on the Courts, Intellectual Property and the
Internet will please come to order. Without objection, the
chair is authorized to declare a recess of the subcommittee at
any time.
I would like to welcome our panel here today on the role
and impact of nationwide injunctions by district courts. In
order to observe the fact that members are still coming back
from the vote, I am going to slightly modify, and we are going
to do the oath before opening statements.
So, I would like to now welcome our panel and ask you to
please rise to take the oath and raise your right hand.
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth, and nothing
but the truth? Thank you. Please be seated.
Let the record indicate that all witnesses answered in the
affirmative. And as we wait for other members to arrive, I will
introduce our panel.
Professor Samuel Bray is Professor of Law at UCLA School of
Law, a fellow Californian for now. Professor Amanda Frost,
Professor of Law at American University, Washington College
School of Law.
Professor Michael Morley is an Associate Professor of Law
at Dwayne O. Andreas School of Law at Barry University.
And my favorite, and returning guest for us, Hans von
Spakovsky--I did not major in that but thank you--is the
manager of Election Law Reform Initiative and Senior Legal
Fellow at the Institute for Constitutional Government and the
Heritage Foundation.
Again, I want to thank you all for coming, and I will now
recognize myself for an opening statement.
We are here today to hear from witnesses on an infrequent,
but more frequent than in the past, problem of nationwide
injunctions that deprive nonparties from having an input into
the judicial process. Whether or not one agrees with the
outcome of a particular case, nationwide injunctions clearly
give, for a time, the power of the entire Supreme Court to make
a law of the land in a case and effectively set a precedent or
bar from similar cases.
No two judges are alike, and in most cases, most decisions
by a district court judge affect only the parties withstanding
in that case and are subject to a review that only covers the
circuit, or a small portion of the United States. But in the
case of nationwide bans or injunctions, we find ourselves with
a specific case with specific characteristics being used to
broadly bind the entire Nation.
If that were not bad enough, we have a bigger problem. And
that is, at least in a few cases, we have multiple injunctions
or decisions not to enjoin that conflict each other. What are
we to do?
Are we to assume that one district judge in one circuit can
overturn an injunction of another, since one has a nationwide
injunction? And if the next rules that in a similar case, an
injunction should not be granted, does one district judge undo
another? I am sure our witnesses today will make it clear that
that would not, and should not, happen.
It does not happen in ordinary cases, even in a situation
in which, for example, the first circuit in Maine and the ninth
circuit in California were to rule completely differently. They
do not bind the rest of the Nation; only the Supreme Court can
do that.
So, as we look at the problem today and this testimony, I
hope we will all recognize this is a problem in need of a
solution. One that should be narrowly crafted, solve the
problem, and not deny the appropriate remedies of parties when
they come before the court. And with that, we will stand in a
short recess.
[The prepared statement of Mr. Issa follows:]
[Recess.]
Mr. Issa. The subcommittee will come to order. It is now my
pleasure to recognize the gentleman from New York for his
opening statement.
Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, the
nationwide injunctions are a sometimes imperfect but often
essential equitable remedy in the Federal courts. When the
Federal Government acts in violation of the Constitution or
breaks the law on a national scale, a nationwide injunction may
be the only logical and far remedy. That does not mean that the
courts should not exercise caution and care when determining
the proper scope of an injunction.
But to suggest that a nationwide injunction should be
prohibited in every circumstance, as some people argue, seems
like a gross overreaction to whatever perceived flaws this tool
may have. Whenever a district court issues a nationwide
injunction blocking a Federal Government policy, the quotes in
the next day's newspapers are all too predictable.
Proponents of that policy will hail the decision as
reasonable and necessary, while supporters of the policy will
claim it was a vast overreach by a single activist Federal
judge. When the party in power changes hands and the roles are
reversed, those who once decried the use of nationwide
injunctions will suddenly see the virtues of such a remedy. And
those who supported their use previously, will now consider it
a fatally flawed travesty of justice.
We should not examine the role and impact of nationwide
injunctions through a partisan lens based on our preferred
policy outcomes. We should instead focus on what factors the
court should consider when determining appropriate scope and
substance of an injunction in any given case.
Critics of nationwide injunctions typically raise four
major objections. First, they argue them as a matter of
principle. A single judge should not be able to bind the entire
Nation with his or her decision. This is despite the fact that
Article III of the Constitution invests Federal judges with the
``judicial power of the United States,'' with absolutely no
restriction on the geographic reach of their decisions.
They also view the ability to seek a nationwide injunction
as an invitation to plaintiffs to engage in forum shopping, a
practice that is certainly not limited to the context of
nationwide injunctions. Concerns have also been expressed about
the potential for confusion if multiple courts issue
conflicting orders with a nationwide impact. Fortunately,
courts generally avoid this problem by placing a stay on the
conflicting order, pending resolution by the appellate courts.
Finally, some scholars have noted that the legal system
depends on issues percolating throughout the courts. The
Supreme Court and other courts of appeal can benefit from
studying the various opinions and analyses offered by lower
court judges who have considered the question at hand. When a
district court issues a nationwide injunction, it may short
circuit this process and stunt the development of the law.
For certain types of cases, however, like immigration, it
is simply not practical to apply the law differently in
different parts of the country. For example, when President
Trump ordered his unconstitutional Muslim travel ban, it would
have made no sense if the courts had ruled that it should apply
differently throughout the United States.
If people from the banned countries were permitted to enter
the United States in California because of a limited
injunction, but were prohibited from entering in Texas because
the court upheld the ban there, where it had not ruled on it,
an immigrant can always enter in California and then travel to
Texas. A nationwide injunction was the only logical solution in
that case.
Whatever legitimate concerns may be raised about nationwide
injunctions, it is also important to note that they offer
several benefits as well. In some instances, like many
immigration and environmental cases where the impact of an
order cannot be neatly cabined off, broad injunctions are often
the only way--the only way--to ensure that the plaintiffs
receive the complete relief that the courts require and that
the plaintiffs legally deserve.
Nationwide injunction also provides uniformity in the law,
and they ensure that similarly situated individuals will
receive equal treatment under the law. This includes providing
equal justice across geographic regions and treating plaintiffs
and nonplaintiffs alike. Doing so also protects individuals who
are unable to bear the cost of litigation from being
disadvantaged in relation to those who can afford to seek
injunctive relief.
This principle can be especially important in certain civil
rights litigation in which it would be unfair for one person to
have a fundamental constitutional right vindicated, while
others who cannot bear the costs and burdens of litigation
would continue to have their rights violated.
The court system itself also benefits from nationwide
injunctions by avoiding a flood of duplicative litigation on
the same issue over and over again. If courts could only issue
injunctions with respect to the parties to a case, or if they
were required to restrict the impact of their decisions through
a particular geographic region, many other plaintiffs would no
doubt rush to the courthouse to seek similar relief.
Nationwide injunctions are obviously not appropriate in all
circumstances, and there are good reasons for courts to act
cautiously before issuing such a broad remedy, but we should
not completely dismantle this important tool and risk depriving
Americans of the justice they deserve.
I look forward to examining these and other issues with our
witnesses today, and I yield back the balance of my time.
[The prepared statement of Mr. Nadler follows:]
Mr. Issa. I thank the gentleman for yielding back. We now
go to our witnesses. I would commend all of you that we will be
having votes and we are going to try to go through this in an
expeditious fashion, so we would like to get to questions as
soon as possible for our panel. With that, of course, observe
the 5-minute rule as close as you can. Your entire statements
will be placed in the record. Professor Bray, you are first.
STATEMENTS OF SAMUEL BRAY, PROFESSOR OF LAW, UCLA SCHOOL OF
LAW; AMANDA FROST, PROFESSOR OF LAW, AMERICAN UNIVERSITY,
WASHINGTON COLLEGE OF LAW; MICHAEL MORLEY, ASSOCIATE PROFESSOR
OF LAW, DWAYNE O. ANDREAS SCHOOL OF LAW, BARRY UNIVERSITY; AND
HANS VON SPAKOVSKY, MANAGER, ELECTION LAW REFORM INITIATIVE AND
SENIOR LEGAL FELLOW, INSTITUTE FOR CONSTITUTIONAL GOVERNMENT,
THE HERITAGE FOUNDATION
STATEMENT OF SAMUEL BRAY
Mr. Bray. I am honored to be invited to testify. My remarks
will focus on the problems caused by the national injunction
and possible solutions. The national injunction is a remedy
that did not exist for the first 170 years of the Federal
courts. No change in legal authority made it possible; no
amendment, no statute, no big case. It was an accidental
development starting in the 1960s and 1970s, and it remained
fairly obscure until less than 3 years ago.
At that point, it was weaponized by Republican state
attorneys general to stop major Obama administration programs.
Now, turnabout is fair play. In other words, whether you are
Democrat or a Republican, sometime in the last 3 years your ox
has been gored by the national injunction.
My hope is that this bipartisan pain offers an opportunity.
We do not have to be distracted by the latest national
injunction. We can take longer view. We can get the law right.
I want to start with a definitional point. What makes the
national injunction distinctive is not its breadth. It is not
about special extent or its being nationwide. That is a
misconception--it is one reason I do not call it a nationwide
injunction.
What makes this remedy novel and dangerous is that a court
is controlling how the government defendant acts toward people
who are not parties to the case. Instead of letting each person
bring his or her own case, or instead of letting a class of
plaintiffs bring their own case.
This remedy lets one plaintiff sue and get an injunction on
behalf of everyone. These are suits against the National
Government-- that is why we can call this remedy the national
injunction. Or we can call it a universal injunction. The point
is not about geographic scope. It is that courts are giving
remedies to nonparties.
Now, what are the problems with the national injunction? I
will list several. Some of these have been alluded to in
Ranking Member Nadler's opening statement. First, rampant forum
shopping. And this is not like ordinary forum shopping. It only
takes a single win to control the Federal Government
everywhere, so you can shop until the statute drops.
Second, there is a risk of directly conflicting
injunctions, with two district judges trying to move the entire
country in opposite directions. We have avoided that so far,
but there was a close call near the end of the Obama
administration. Third, there is the effect on decisionmaking by
the Supreme Court. The justices typically wait to grant cert on
a question until there is a circuit split. Judge Leventhal,
formerly of the D.C. Circuit, used a metaphor that reminds me
of making coffee. The justices want an issue to percolate
through the Court of Appeals.
But national injunctions stop the percolation. They put us
in a world where the Supreme Court has to decide cases faster,
with less evidence, with fewer contrary opinions- a recipe for
bad judicial decisionmaking.
Next, the national injunction is an end-run around class
action requirements. Plaintiffs can bring a class action for
injunctive relief, but only if they meet certain requirements
that are meant to ensure effective representation and fairness
to everyone in the class. But there is a problem. Why does that
class action even exist, if plaintiffs can get the same remedy
without meeting any of the class requirements by seeking a
national injunction?
Finally, and most important, there is a fundamental
constitutional problem. Article III gives the Federal courts
the judicial power. That is a power to decide cases and
controversies. A power to decide cases for particular parties.
It is not a power to decide questions and give remedies for
people who are not parties. That is why for 170 years there
were no national injunctions from Federal courts, because the
Federal courts recognized that giving remedies to nonparties
would go beyond the judicial power.
So, what should be done about the national injunction?
First, the Federal courts could repudiate it. They broke it,
they should fix it. But so far, the Supreme Court has failed to
act.
Second, the Advisory Committee on the Federal Rules of
Civil Procedure could make a change. But the committee recently
declined to do so. Third, there could be a statute. Starting
with the Judiciary Act of 1789, Congress has not hesitated to
define the jurisdiction of the Federal judiciary. Indeed, the
Constitution itself explicitly gives this power to Congress.
The need for Congress to exercise it is acute.
I urge the drafting of legislation that would restore the
traditional practice of injunctions protecting only the
parties. The core language could be a simple prohibition. The
following sentence would suffice: ``a court of the United
States shall not enjoin the enforcement of a statute or
regulation as against a nonparty.''
Our system is designed to get to the right legal answer,
but through precedent. It is slow, it is messy, not through the
lightning strike of a single Federal judge deciding a question
for the whole country.
[The prepared statement of Mr. Bray follows:]
Mr. Issa. Thank you. Professor Frost.
STATEMENT OF AMANDA FROST
Ms. Frost. Thank you, Mr. Chairman, Ranking Member Mr.
Nadler, and members of the subcommittee for holding a hearing
on this important topic today. I am a Professor of Law at
American University Washington College of Law where I teach and
write in the fields of civil procedure, constitutional law, and
immigration law.
As both Professor Bray and Professor Morley have stated in
their written testimony, determining the proper scope of a
national injunction is not a partisan issue. Over the last few
years, we have seen national injunctions entered to put a stop
to President Obama's initiatives and programs, and we have seen
in the last year national injunctions put in place to put a
stop to President Trump's initiatives and programs.
Nationwide injunctions come with both costs and benefits,
and for that reason it is inappropriate for a Federal district
court to enter a nationwide injunction without seriously
considering those costs and benefits. But it would also be a
mistake to take the nationwide injunction off the table as a
remedy for a district court, at least in certain cases.
First and foremost, in some cases nationwide injunctions
are essential to provide complete relief to the plaintiffs. And
this is particularly true in immigration cases where it often
would be impossible to give the plaintiff the relief they are
requesting.
So, for example, the State of Texas sued, challenging
President Obama's initiative to grant deferred action to
undocumented immigrants all over the United States, and they
asked for a nationwide injunction. And their argument about why
it needed to be nationwide was that if President Obama was
allowed to give deferred action to all the undocumented
immigrants living outside of Texas then, of course, those
individuals could move into Texas, causing Texas the very same
injury it was trying to avoid.
Now, I disagree with some of Texas' legal arguments. But if
you agree that they were injured by this initiative, then I
think you have to agree, they needed a nationwide injunction to
correct and remedy that injury.
Likewise, the States that have sued to enjoin President
Trump's executive order, putting in place a travel ban against
entry by certain foreign nationals, have argued that that ban
injures them economically, injures their educational
institutions and their employers by making it impossible for
them to recruit and retain employees, students, and faculty.
Now, without a complete and total injunction of that travel
ban, their injuries would not be remedied. Nor would it be
possible to geographically restrict such an injunction because
we can imagine what would happen. If you put an injunction in
place for the travel ban as to only one State, of course the
immigrants will come into that State and then travel elsewhere.
And in fact, that is exactly what happened in the travel ban
litigation.
Within a few days after President Trump issued the
Executive order with the travel ban, a district court in
Massachusetts enjoined the travel ban as to people flying into
Logan Airport in Boston, Massachusetts. So, what happened is
many immigrants who wanted to come to the United States who
were affected by the ban changed their flights to fly into
Boston, Massachusetts, and then travel to other States.
Nothing short of a nationwide ban was going to be effective
in any way, shape, or form in that litigation. The same
problems that I just described plaguing immigration also apply
to cases involving environmental harm, such as air pollution or
water pollution, and cases involving defective products or
endangered animals. All of which the plaintiff's injury could
not be relieved unless there was a nationwide injunction.
And finally, as Professor Morley has also written, such as
rights at issue in redistricting and desegregation cases,
required nationwide injunctions extending beyond the plaintiffs
in order to give the plaintiffs complete relief.
Another important reason to allow for nationwide
injunctions is that they protect rule-of-law values, such as
ensuring the uniform and consistent interpretation of Federal
law, which in turn ensures that similarly situated people are
treated alike. This is a very important value in our legal
system. I think it is what motivated the Supreme Court to
partially uphold the nationwide injunction in the travel ban
case. It just seems unfair and arbitrary to have a law apply to
some but not all.
It is also particularly important in areas such as
immigration to speak with one voice. I mentioned previously the
geographically restricted injunction issued by a Massachusetts
district court in the travel ban case. That created great
confusion and chaos, not only among immigration officials in
the United States, but among all the foreign citizens who had
to reinterpret and apply that law, and other actors, such as
airline personnel, who also play a role in enforcing our
immigration laws. Anything short of a nationwide injunction was
simply too disruptive in the immigration context.
So, that said, there certainly are serious costs in
nationwide injunctions, and I commend my fellow panelists for
raising this issue and hopefully encouraging district courts to
think twice. My view is the district courts should consider
carefully the scope of an injunction, should hold a hearing on
the issue at which they gather evidence from the parties as
well as interested third parties to the case about the costs
and the benefits, before going ahead and issuing a nationwide
injunction. But I do think it remains an appropriate remedy in
appropriate cases.
Thank you for your time and I look forward to your
questions.
[The prepared statement of Ms. Frost follows:]
Mr. Issa. Thank you. Professor Morley.
STATEMENT OF MICHAEL MORLEY
Mr. Morley. Good afternoon, Mr. Chairman, ranking member,
and distinguished committee members. My name is Michael Morley,
and I am an Associate Professor of law at----
Mr. Issa. We cannot quite hear you. Pull the mic closer and
turn it on, please.
Mr. Morley. Thank you. My name is Michael Morley and I am
an Associate Professor of Law at Barry University School of
Law. It is an honor to have the opportunity to speak with you
today on the issue of nationwide injunctions.
Almost every injunction can have a nationwide impact in
some respect. When an injunction prohibits a defendant from
taking certain actions, that prohibition typically applies
anywhere in the Nation, including places well outside the
geographic jurisdiction of the issue in court.
Today, however, I will be using the term ``nationwide
injunction'' to refer to court orders that purport to
adjudicate and enforce the rights of people who are not
necessarily before the court, who may very well be outside of
the issue in the court's jurisdiction.
Because any injunction may have effects far beyond a
court's jurisdiction, the key question in determining whether
an order is a nationwide injunction of the sort we are speaking
about today is whose rights is the court focused on enforcing.
I would like to emphasize three main issues.
First, the question of what the propriety of nationwide
injunction is bipartisan. Second, at least some of the reason
that confusion exists over nationwide injunctions is due to the
potentially misleading language courts sometimes use in
discussing constitutional issues, as well as the uncertainty
over the respective roles that different bodies of law play in
constitutional cases.
Finally, when considering the issue of nationwide
injunctions, it is critical to distinguish between class action
and nonclass cases.
First, nationwide injunctions are a bipartisan issue. By
issuing a nationwide injunction, a single district judge may
completely prohibit a Federal statute, regulation, executive
order, or administrative policy from being enforced against
anyone anywhere in the Nation, or potentially even the world.
It may grant relief to third-party nonlitigants. The plaintiffs
themselves lack standing under Article III of the Constitution
to pursue.
Over the past year, nationwide injunctions have been issued
against several of President Trump's initiatives, including the
travel ban, prohibition on transsexual service in the military,
and restrictions on Federal funds to sanctuary cities.
As my colleagues have noted, however, only a year or two
earlier, nationwide injunctions were issued against several of
President Obama's initiatives, including not only deferred
action for parents of aliens, but Department of Education
guidance concerning transgender students' bathroom use, and
even the Affordable Care Act itself.
Thus, nationwide injunctions may be levied against legal
provisions enacted by either political party presenting
concerns for both. It is truly an area in which both parties
have a strong interest in applying objective, neutral
principles.
Second, part of the confusion over nationwide injunctions
stems at least in part from the language courts use to discuss
constitutional cases. When a court, especially a district
court, holds that a statute is facially unconstitutional, we
often say that the court has struck down the statute, but that
phrase is only a metaphor. The statute itself remains on the
books. The court has simply decided that the Constitution
precludes it from applying that statute in the case before it.
The question then becomes what are the other legal
consequences of a district court's ruling that a legal
provision is unconstitutional? The answer to that question does
not come primarily from constitutional law but rather other
bodies of law, such as civil procedure, Federal courts, and
remedies, which usually counsel in favor of more narrow
injunctive relief. The notion that a nationwide injunction is
appropriate simply because a district court concludes that a
law is facially unconstitutional is erroneous.
Finally, nationwide injunctions present very different
issues in class action versus nonclass cases. It is generally
undisputed that a court may grant relief to the parties before
it. In a class action case brought under Federal Rule of Civil
Procedure 23(b)(2), a court may grant injunctive relief to
protect the rights of all plaintiff class members.
The main issue in such cases is not so much the scope of
the injunction but rather the scope of the class. Courts should
generally avoid certifying nationwide classes in constitutional
under Rule 23(b)(2) precisely to avoid having to issue
nationwide injunctions, completely nullifying a Federal legal
provision across the country.
In nonclass cases in contrast, when a court issues a
nationwide injunction it is enforcing the rights of third-party
nonlitigants who are not before the court. The plaintiffs in
nonclass cases generally lack Article III standing to seek such
relief and such broad orders are unnecessary to resolve the
case or controversy actually before the court. In nonclass
cases, courts should generally issue only plaintiff-oriented
injunctions, enforcing only the rights of the particular
plaintiffs before them.
I have offered proposed statutory language to address these
issues in my written statement. Thank you very much for your
time and I would be happy to answer any questions.
[The prepared statement of Mr. Morley follows:]
Mr. Issa. Thank you. Mr. von Spakovsky.
STATEMENT OF HANS VON SPAKOVSKY
Mr. von Spakovsky. Well, the legitimacy of an injunction
issued by a Federal district court against the government in a
nonclass action law suit has nationwide application to
individuals who are not parties to a suit. That is the issue.
Such injunctions are recent phenomena that violate Supreme
Court precedent, U.S. v. Mendoza. In Mendoza, the lower courts
refused to allow the government to contest the case because of
a prior adverse decision on the same issue by a different
Federal court against different plaintiffs.
The ninth circuit held that the government was collaterally
estopped from relitigating the constitutional issue. But the
Supreme Court held that the doctrine of collateral estoppel,
which applies to private parties, does not apply to the
government.
The government is not the same as private litigants
because, as Chief Justice Rehnquist said, ``Both because of the
geographical breadth of government litigation and also, most
importantly, because of the nature of the issues in government
litigation.'' Thus, applying collateral estoppel of the
government ``would substantially thwart the development of
important questions of law by freezing the first final decision
issued on a particular legal issue.'' Allowing only one final
adjudication would deprive the Supreme Court of the benefits it
receives from permitting several courts of appeal to explore a
different question before it grants certiorari.
Thus, the government is not further bound in a case
involving a litigant who was not a party to the earlier
litigation and has the ability to continue to apply its
regulations, policies, and executive orders to individuals,
including aliens, who are not parties to specific lawsuits
contesting the government's actions. Nationwide injunctions
obviously provide an incentive for extreme forum shopping,
rewarding plaintiffs who steer cases to specific circuits,
specific districts, and even specific judges.
While such forum shopping raises serious questions in the
minds of the public about the objectivity and partisanship of
the judges chosen by plaintiffs, because the judges are viewed
as holding particular ideological and political views that will
benefit the plaintiffs.
When Federal courts issue nationwide injunctions applying
to nonparties, they are invading the authority of other Federal
courts and other appellate circuits. Now while that may be
appropriate when applied to the specific individuals who are
before that particular court, it is not appropriate for
individuals who are not parties of the lawsuits and certainly
not to unnamed, unknown individuals, except under very limited
and very narrow circumstances as determined by Congress and the
Supreme Court.
There are occasions when a nationwide injunction may be
appropriate for nonparties, but Congress has provided for that
through Federal Rule of Civil Procedure 23, which outlines the
requirements for a Federal court to certify a class action.
Federal courts issuing nationwide injunctions without following
rule 23 are evading compliance with Federal law.
Similarly, Congress has provided that a Federal court can
set aside actions taken by the government if it finds a
violation of the Administrative Procedure Act, the APA. Thus,
while some have criticized the nationwide injunction issued by
a Federal district court and upheld by the fifth circuit
against President Barack Obama's DAPA program, that injunction
was only issued after the courts found a violation of the
Administrative Procedure Act.
Now, solutions to the problem are such that, you know, we
would not have this problem of improperly issued nationwide
injunctions if Federal courts followed the Mendoza precedent
with regard to judgments against the government that do not
bind on parties or complied with Federal rule 23, if a class of
plaintiffs is justified, or followed the requirements of the
Administrative Procedure Act. The Federal judges are routinely
ignoring these requirements when issuing injunctions.
Now, one potential way to prevent the conflicts that can
arise from multiple differing opinions issued by different
Federal judges would be for Congress to require all the
lawsuits contesting the legality or constitutionality of an
executive order signed by the President, or a regulation
promulgated by a Federal agency to be filed in the District of
Columbia Federal District Court. This is a precedent that has
been followed by Congress by section 5 of the Voting Rights Act
which required such lawsuits to be filed in the District of
Columbia.
Another potential solution is to de novo review of cases
that do not follow the Mendoza precedent. Of course, this would
remedy the problem if circuit judges do not follow the legal
and equitable limitations that already exists on granting such
injunctions. I will be happy to answer questions from the other
members of the committee.
Mr. Issa. Thank you. I recognize myself for the first round
of questioning. Oh, I am terribly sorry, I tried to overdo it.
We now recognize the chairman of the full committee, the
gentleman from Virginia, Mr. Goodlatte, for his opening
statement.
Chairman Goodlatte. Well, thank you very much, Mr.
Chairman. I appreciate you holding this hearing, I appreciate
your forbearance in letting me give this statement. Well, this
issue is a very important one and I appreciate the witnesses'
testimony today.
We are here to explore the proprietary of allowing a single
district court to issue a nationwide injunction with respect to
congressional and executive actions. With George W. Bush and
Donald Trump as President, national injunctions against the
administration's policies tended to be issued by Federal
district court judges in the ninth circuit, including
California and Washington State.
When Barack Obama was President, national injunctions
against the administration's policies tended to be issued by
Federal judges in the fifth circuit, including Texas. This
situation poses many problems for us all to consider.
Among them, if a plaintiff brings an individual action
seeking a national injunction and the Federal district court
upholds the Federal policy challenge, then the decision has no
effect on other potential plaintiffs. However, if one Federal
district court judge invalidates a Federal policy and issues a
national injunction, the injunction stops the Federal policy
with respect to everyone nationwide.
To paraphrase what one law professor has written, ``shop
'til the Federal policy drops.'' Also, when a single Federal
district court judge issues a national injunction, it would
seem to greatly interfere with a more optimal decisionmaking
process within the Federal court system and even affect the
Supreme Court's resolution of the issue.
When a Federal district court stops a Federal policy
everywhere, there might be no opportunity for other Federal
judges to express their views, leaving the Supreme Court to
potentially hear the appeal without the benefit of hearing
differing views on the subject, including different analyses of
both the law and the facts among both other Federal district
court judges and other circuits as well. It leaves the Supreme
Court to decide major questions of Federal policy more quickly
with fewer facts and without the advice of competing views
among the lower courts.
National injunctions issued by Federal district courts
result in a uniform policy to be sure, but at the cost, at
least, of some of the problems I have briefly mentioned.
National uniformity is not a prime imperative in our system of
lower Federal courts divided into circuits, a system that
broadly tolerates disuniformity in the law pending review by
the Supreme Court. Indeed, the only way to avoid disuniformity
in the Federal courts would be to have only one, but that is
not our system.
The situation created by the acquiescence to national
injunctions does not seem to have prevailed at all in the first
century and a half, or more, of American history and when the
prospect was raised in the past, it seems to have been
decisively rejected during that period. Congress knows how to
concentrate judicial review in a small set of courts, and it
has done so on several occasions, pursuant to federal
legislation enacted by the dually representatives of the
people.
Yet the prevailing acquiescence to the issuing of national
injunctions by lower courts is not the result of any nationally
considered policy, and certainly not one enacted by Congress
and signed into law by the President.
So, I would conclude that with a question to the
distinguished panel gathered here today. Since disuniformity is
an inherent part of our Federal judicial system, what is the
best way to achieve uniformity? Is it through the current
acquiescence with national injunctions, where the first court
to invalidate a congressional or executive action has its
decision applied nationwide, despite the potential of
preexisting, conflicting decisions? Or is it through either the
unanimous opinions of the lower courts or through the
disagreement of the lower courts preceding an analysis by the
Supreme Court?
I thank all of our witnesses for participating in today's
hearing, and I look forward to posing that question to each of
you at a little later in the process. Thank you, Mr. Chairman.
[The prepared statement of Chairman Goodlatte follows:]
Mr. Issa. Thank you. I was planning on letting them answer
that one, Mr. Chairman. We will let you think about it. I will
now recognize myself for a round of questioning. You know, the
chairman made some extremely good points, and I will try to add
on to those in my questioning.
Professor Frost, I gave you a heads-up initially that you
seem to be the most in the middle of some of the decisions
here. So, let me pose first one question of, in a case in which
you have a party. For example, in an antitrust case, and the
party is doing something to a particular individual and then
brings it. Obviously, the court, one, goes to an appropriate
venue, often not the plaintiff's but the defendant's. Correct?
Ms. Frost. I am sorry. Could you repeat the----
Mr. Issa. I mean, the defendant in an antitrust case has to
be in a place in which the court can determine they have a
nexus to it? Okay?
Ms. Frost. Yes. Yes, for starters.
Mr. Issa. So, you first have to go where the defendant is--
--
Ms. Frost. Yes.
Mr. Issa [continuing]. In some measurable way. Secondly, if
you plead an antitrust activity, it only affects that
particular activity as to that individual, and of course, you
will enjoin the company in the entirety but you are enjoining a
particular activity. Correct?
Ms. Frost. Yes. I need to know more about the case, but
yes, you are enjoining the party from acting.
Mr. Issa. So using the example--and I think we all
understand the elephant in the room are these last few years on
both sides of the aisle these decisions--in the case, for
example, of a proposed immigrant. If they were coming in, let's
say, on a green card, if they were returning on a visa, are the
particulars in that case identical in any way to, let's say,
somebody coming from a country where you cannot verify their
origin? Particulars are different, are they not?
Ms. Frost. Those acts differ.
Mr. Issa. So, in several of these cases on both sides,
there was not a harmony of the cases but, in fact, a
determination that the order was inherently unconstitutional
for all that could be affected by, both before the court and
not before the court. Correct?
Ms. Frost. Are you talking about in the travel ban
litigation, or----
Mr. Issa. Yes.
Ms. Frost. Yes, and I will also say that was the same type
of ruling that the Texas District Court issued in the case
challenge where Texas challenged the DAPA.
Mr. Issa. So, Professor Bray, using that example--because I
want to stay on it for a second--ultimately did the President
not have a follow-on order that was a lesser included part of
his original order?
Mr. Bray. Yes, that is my----
Mr. Issa. Was it considered to be unconstitutional when it
was a lesser included?
Mr. Bray. Well, that was the subject of further litigation
and there were more national injunctions against the revised
order.
Mr. Issa. Right. But at the end of the day a lesser
included part of the order was constitutional. In other words,
the President's order, at worst, was overly broad as to the
individuals. Correct?
Mr. Bray. I think that partly depends on the theory of the
particular challenge. So, I----
Mr. Issa. Let me move on, because I am going to run out of
time and I want to get one or two more things in fairly
quickly. Is it reasonable to say that this problem, to the
extent that there is, is not the problem of a nationwide
injunction but the process of agreeing to a nationwide
injunction and ensuring that, in this case, the United States
Government, the President and his or her administration has a
process which is fair and equitable for the outcome?
I will do it this way--professor, and I will go right down
the aisle--do you all agree that there is at least one case in
which somewhere in the Federal court system there should be a
nationwide injunction granted?
Mr. Bray. I do not----
Mr. Issa. Okay. Well, let's----
Mr. Bray. Because I think it goes beyond the Article III
power of the Federal courts----
Mr. Issa. Let's say the D.C. Circuit.
Mr. Bray. Even in the D.C. Circuit. The injunction should
bind the parties and that is all the courts have constitutional
powers.
Mr. Issa. Let me go through this for second because I want
to be fair that I think there is a balanced question here that
as we try to resolve it we want to get to. Professor Frost--and
I apologize to the others, I am not probably going to get to
you--but Professor Frost, are there not examples in the D.C.
Circuit in which regulatory decisions are routinely struck down
there and that they effectively eliminate the enjoined the
regulation and strike it down?
Ms. Frost. Certainly.
Mr. Issa. Are those not nationwide?
Ms. Frost. Yes. They operate nationwide in the sense that
they are going to stop that policy wherever it would have been
implemented in the Nation.
Mr. Issa. So, inherently, we do, with some regularity, have
nationwide injunctions, but we do not call them nationwide
injunctions. Is that correct?
Ms. Frost. I think the definitional issue is really
important here to think, especially if you are going to
legislate this area, you should be very careful about----
Mr. Issa. So, one of the--and that is why I asked to
process and I will close with this--from a process standpoint,
the ambiguity is a party who has a right to be, let's just say
in Hawaii or Washington, and the United States of America,
which is inherently here in Washington, D.C., and finding a way
to find a process in which the individual is not denied their
right potentially to seek redress where they are.
And I will not use immigration as one, but let's just say
that, and the inherent right of the Federal Government to have
a process for a determination of what it should or should not
be able to do on a national basis. Is that a fair statement of
the problem, not necessarily the solution?
Mr. Bray. I think we can think about it as a process
problem with the issue being how do we get from A to B, with A
as legal dispute and controversy, and B as some sense of
uniformity. And the traditional way to do that is through
precedent and not through national injunctions----
Mr. Issa. And we are going to get to that in my second
round. Does anyone disagree with that basic concept, that this
is at least a part of what we should explore here today? With
that, I recognize the ranking member of the committee for his
questions.
Mr. Nadler. Thank you, Mr. Chairman. Professor Frost,
Professor Bray argues in his testimony and in his answers that
nationwide injunctions are unconstitutional, period. Do you
agree with that assessment? And are you aware of any cases in
which the constitutionality of a nationwide injunction has been
challenged?
Ms. Frost. No, I do not agree with that statement. First,
because I think that we need to separate out a district court's
power to hear a case and that does turn on connection between
the defendant and the territory in which the district court
presides. So, there is a limit on the district courts. They
cannot hear every case. They have to hear a case in which there
is a jurisdictional connection.
But that is not the same as what kind of remedy can they
issue, and I argue they have the power to issue a remedy to
provide complete relief to the plaintiff, and that is what the
Supreme Court has said in Madison. It is also what the Supreme
Court implicitly said when it partially upheld the nationwide
injunction against the travel ban, just this past year.
Because, of course, it kept that nationwide injunction in place
as it applied to people beyond the plaintiffs.
Mr. Nadler. So, you would say the Supreme Court, in that
decision, in effect upheld the constitutionality of nationwide
injunctions?
Ms. Frost. Yes.
Mr. Nadler. Thank you. Professor Bray, would you comment on
that?
Mr. Bray. I do not think the procedural posture in that
case, which is a motion for a stay of a preliminary injunction,
is a decision on the merits by the U.S. Supreme Court on this
question. There have actually been--the closest thing to a
decision on the nationwide injunction is Frothingham v. Mellon
in the 1920s and it said it would be beyond the judicial power
under Article III. And that is consistent with the traditional
practice.
Mr. Nadler. And by upholding the injunction in the travel
ban case, the Supreme Court was not implicitly modifying that?
Mr. Bray. I think when the court is deciding whether or not
to grant a stay, it is considering a variety of prudential
considerations without reaching that particular question of
whether the national injunction is appropriate. That question--
--
Mr. Nadler. Wait, wait, wait. Of course, it is using a
variety of prudential considerations. But if it were
unconstitutional, it could not get to those prudential
considerations, could it?
Mr. Bray. Well, I think they should not have. They should
not have waited. But on that particular posture, it is not a
decision on the merits of the national injunction.
Mr. Nadler. Even by implication?
Mr. Bray. By implication from the posture that the court
deciding it.
Mr. Nadler. Okay. All right. Professor Frost, again, when a
court issues a nationwide injunction it spares other similarly
situated individuals from having to file suit individually and
relitigate the same issues obviously. What impact do you think
a ban on nationwide injunctions would have on the efficiency of
the courts and on their limited resources?
Ms. Frost. Yeah, judicial economy and the inefficiency of
requiring relitigation is yet another benefit of nationwide
injunctions. I also, as I have said, think there are costs. So,
I do not think that would outweigh some of the cost. It depends
on the case. I think the most compelling reason to allow for a
nationwide injunction is that in cases where you cannot give
complete relief to the plaintiffs without it. And as I gave
examples in immigration cases, the case by Texas against the
Obama administration policies and the travel ban litigation are
perfect examples.
Mr. Nadler. Let me ask Professor Bray. In those cases, how
would you give relief without a nationwide injunction?
Mr. Bray. I think you could give complete relief in each
case without a national injunction. So, for example, when the
State of Washington is suing because of the strongest case for
standing it had was on the harm to State universities because
students and faculty could not travel to Washington. So, the
injunction could require the admission to the United States of
students and faculty to Washington State universities. And that
puts the onus on the administration to deal with the logistical
problems of that and that is completely appropriate.
Mr. Nadler. Okay. And then, California would have to sue
separately to prevent the damage to the University of
California by students who could not come there?
Mr. Bray. So, the parade of horribles winds up having very
few floats in it because California might sue, and Washington
might sue, and then you get a decision----
Mr. Nadler. Could you just answer my question?
Mr. Bray [continuing]. From the ninth circuit and it would
be set for the ninth circuit.
Mr. Nadler. So, in other words, okay--you would have a
different lawsuit in every circuit. Professor Frost, can you
comment on that?
Ms. Frost. Yeah, and I think it is inefficient to do it
that way.
Mr. Nadler. Inefficient?
Ms. Frost. But I also do not agree with Professor Bray that
it would resolve the harm for the State of Washington because
the arguments made by these States was it is a problem for
their economies, for their universities, for their residents to
have a whole, at that point----
Mr. Nadler. Okay.
Ms. Frost [continuing]. I think seven different countries,
nationals, were banned from coming to the United States. That
is going to dissuade people from applying to be students----
Mr. Nadler. All right. Let me ask you one final quick
question because my time is running out. You recommend,
professor, in your testimony that before issuing a nationwide
injunction a court should only hear specifically on that
question with testimony from the affected parties. I was struck
by that testimony. What are some of the factors you think a
court should consider when examining that question?
Ms. Frost. When courts consider this question, they should
look at the costs, which Professor Bray and Professor Morley
discussed in their articles, and the benefits, which are, as I
said, complete relief for the plaintiffs as well the need for
uniformity in the interpretation and application of the law,
and that like cases be treated alike, which is also an
important principle in our legal system. So, they should weigh
those costs and those benefits.
Mr. Nadler. Thank you. My time has expired.
Mr. Issa. Thank you, and I would just like to continue on
that line with the chairmen of the cull committee, Mr.
Goodlatte.
Chairman Goodlatte. Well, thank you, Mr. Chairman. I would
love to dive into the details of both the Texas DAPA injunction
and the series of decisions by a few district court judges,
primarily one in Hawaii, with regard to the injunction of seven
countries. I am mystified by why he allowed it to go forward in
this most recent action, for Venezuela and one other country,
but not for five others; I mean, just totally mystified me.
But I think it is more important to take the concern that
people have, no matter what their political perspective is, on
how one single district court judge gets to make this decision
which can last under the current process for many months or a
year or more, depending upon the type of case it is.
So, I want to go back to my question, which is what is the
best way to solve that problem? Is it to let this continue on?
Or is it to have some method of achieving uniformity by
requiring unanimous opinions through the lower courts? Or if
there is disagreement in the lower courts, that having to
happen and then go to the Supreme Court before the injunction
can be imposed.
So, let me start with Mr. von Spakovsky. Your testimony
suggests either designating a specific court to hear such
constitutional challenges. Obviously in this day and age, where
as I noted everything injunctions--not everything, but most
things--affecting decisions by the Obama administration came
out of one circuit, the fifth circuit.
Most things that came out affecting the Trump
administration, and before that the Bush administration--not
all, because there are some here in the eastern part of the
country--but came out of the ninth circuit. Designating one
circuit to do that is going to place a lot of power in one
place. You also suggested changing the standard of review by
circuit courts when hearing appeals. Do you have a preference
on those two suggestions?
Mr. von Spakovsky. I think there is a little bit of a
misnomer going on here, and Professor Bray talked about this.
Look, the problem is not so much nationwide injunction. Part of
the problem here is the courts issuing injunctions that are too
broad.
For example, Professor Frost keeps comparing the decision
about DAPA with the travel orders, but in the DAPA case what
the court actually found was a violation of the APA. That is
not something that was asserted in the lawsuits against the
travel orders. And there is a difference there.
Look, Congress itself has passed this APA statute saying
that when an agency is acting in issuing a policy or
regulation, you have given the courts the authority.
Chairman Goodlatte. I get this, and I agree with your
assessment, but I want to get to how you prevent district court
judges that have a wide array of ``shop 'til the Federal law
drops.'' How do you avoid that?
Mr. von Spakovsky. Okay, in that case, I mean, there are
problems with giving one particular court, like the D.C.
Circuit, jurisdiction over something, for example, that you
think that an agency is doing, because then it brings up the
politics, or the fights over who is going to sit in that
circuit. On the other hand, and I think it was Professor Bray
who suggested that you change the standard of review.
So that, for example--and this is something that I have
recommended--if a Federal district court goes beyond the
Mendoza precedent, if it extends its injunction beyond the
people who are actually the plaintiffs in a case, the named
plaintiffs, and goes beyond that, if you change that standard
of review from abuse of discretion to de novo review, then you
are going to give the appellate court more authority to strike
down when a district court goes too far.
Of course, that is not going to do you any good if you have
circuit court judges who are not paying any attention to that.
And if you want to see a good example of circuit judges not
paying attention to these restriction on them, look at the
ninth circuit panel in the case of----
Chairman Goodlatte. Let me interrupt you here.
Mr. von Spakovsky. Yeah.
Chairman Goodlatte. Again, I love listening to what you
have to say, but I want to give the other three witnesses a
chance to respond to that one question because that is the only
thing I am going to get to ask. Professor Morley?
Mr. Morley. Thank you. In terms of uniformity, the Federal
judicial system is fundamentally structured not to promote
immediate uniformity. Most of the consequences of a court's
ruling does not come necessarily from an injunction. It comes
from the stare decisis effect. By having 12 different
geographic circuits----
Chairman Goodlatte. What is the solution? I share your
concern. What is the solution?
Mr. Morley. Well, that is exactly my point. As long as you
are working against the backdrop of a system where even circuit
court rulings are only binding within their circuits, it would
be inconsistent with that to say, nevertheless, we should allow
single district judges or single circuit courts to allow their
injunctions to apply.
Chairman Goodlatte. How about just legislate a change in
the standard of review?
Mr. Morley. Certainly, I would support moving to a de novo
standard of review for injunctions that purport to enforce the
rights of third-party nonlitigants. Going further and enacting
statutory language prohibiting courts from adopting injunctions
that enforce the rights of third-party nonlitigants would be
even greater protection.
And this goes back to the definitional question. Everyone
agrees. A court should enforce the rights of the parties before
it. In some cases, that might require relief that is broader,
that might look like a nationwide injunction, but that is not
the problem. The problem is where courts are saying, ``I am not
focusing on enforcing this plaintiff's rights. I want to
enforce everyone's rights, including third-party
nonlitigants.''
Chairman Goodlatte. Got it. Let me go on to Professor Frost
and then Professor Bray briefly.
Ms. Frost. So, you are concerned about the power of a
single district judge, and I would just point out that, of
course, that judge's decision is immediately appealable to a
circuit court, to an unbound circuit court, and to the U.S.
Supreme Court. So, I do not think it leaves the decision in the
hands of a single district judge.
Chairman Goodlatte. It takes a long time to get there.
Ms. Frost. Not in certain litigations. We have seen it with
the travel ban litigation, among others.
Mr. Bray. It can take a while and because the standard of
review in the Court of Appeals, and for the Supreme Court, is
abuse of discretion, you get some insolation. I am concerned
about this problem about if there is a way, to do any kind of
half measure, and I do not think there is.
I do not think anybody has come up with a test that is not
malleable and subjective, that is going to depend a lot on the
judges own preferences to decide whether a national injunction
is appropriate. Especially since the things that would go into
the balance are very incommensurable.
Like the concern for all people being treated alike under
the same rule, like, that is going to be present in every case
and could justify a national injunction in every case, if you
accept that way of thinking about our system. As opposed to
slowly, through precedent, getting uniformity.
So, I do not think there is any way to give a Federal
district judge power to issue national injunctions sometimes
and not other times that will actually be logical and coherent.
So, I would say a strict prohibition: ``a court of the
United States shall not enjoin the enforcement of a statute or
regulation as against a nonparty.''
Chairman Goodlatte. Thank you.
Mr. Bray. Thank you, Mr. Chairman.
Mr. Issa. Thank you, Mr. Chairman. We now go to the
gentleman from Georgia, Mr. Johnson.
Mr. Johnson of Georgia. Thank you. Should not the decision
as to whether or not to issue a nationwide injunction be made
on a case-by-case basis, Professor Bray?
Mr. Bray. I think it is an excellent question and equitable
decisions from the courts of equity and equitable remedies,
including the injunction, do take into account then specifics
of the case.
Mr. Johnson of Georgia. And cannot a nationwide injunction,
or a case where a nationwide injunction is sought, not be
handled in that same way? Theoretically?
Mr. Bray. I think it cannot be and the reason is that the
argument for a national injunction does not really come down to
national injunctions in some cases. It is present in every
case. And the arguments against the national injunctions, the
ones I consider most potent, are also not only present in some
cases. They are present in every case. So, what you have----
Mr. Johnson of Georgia. It largely has to do with its
effect on people who are not parties to the case. Correct?
Mr. Bray. Yes, and also----
Mr. Johnson of Georgia. Is it not correct, however, that
under rule 24, Federal Rule of Civil Procedure, a nonparty has
a right to intervene in a case that they are not a party to
that they contend affects them?
Mr. Bray. Yes, there are traditional devices for bringing
in nonparties. Intervention and class actions are ways of doing
that.
Mr. Johnson of Georgia. You can even intervene under rule
24 as a class action under rule 23?
Mr. Bray. I am not sure offhand the answer to that
question.
Mr. Johnson of Georgia. What would you say to that,
Professor Frost?
Ms. Frost. My understanding of intervention is that it
would not be a method of certifying a class. You would have to
go through the rule 23 requirements to certify a class----
Mr. Johnson of Georgia. But certainly an individual who is
a representative of a class could file based on the
individuality of the interest that he or she is asserting that
is affected by the nationwide ban? Correct?
Ms. Frost. Certainly, you could try to get a class action
involved or started up in litigation involving a nationwide
injunction.
Mr. Johnson of Georgia. Professor Bray, you contend that
the development of the national injunction is, to use your
words, ``an accidental development.'' Do you mean that the
careful and deliberate evolution of case law and precedent and
authority based on previous decisions was an accident in
development of the national injunction?
Mr. Bray. I think it was an accident because it did not
happen through careful and deliberate development of this idea.
There was----
Mr. Johnson of Georgia. Was it a sudden decision?
Mr. Bray. One of the key decisions in the early 1970s, the
one that seemed to get the national injunctions started
involved a concession by the government defendant that the
government defendant should not have made, and so the court did
not really consider the question closely. And so, the court
said, ``Well, it does not really matter whether a class is
certified or not.'' It had all the hallmarks of sloppy
reasoning, not careful reasoning.
Mr. Johnson of Georgia. Was that case appealed?
Mr. Bray. It was.
Mr. Johnson of Georgia. And was it appealed to the U.S.
Supreme Court?
Mr. Bray. Either cert was denied or there was no petition
for certiorari, but there was not a Supreme Court decision.
Mr. Johnson of Georgia. And so, has there been a Supreme
Court decision on the constitutionality of the national
injunction? I believe you indicated that there had been some
discussion about it in a previous decision that occurred what
year?
Mr. Bray. I think the Frothingham v. Mellon decision from
the 1920s is inconsistent with the national injunction and
rejects it----
Mr. Johnson of Georgia. Well, I tell you, a lot has changed
since 1920, and the evolution of the case law has somewhat kept
up with it. And is this issue something that can become right
at some point for a decision by the U.S. Supreme Court?
Mr. Bray. It certainly can be, and in fact----
Mr. Johnson of Georgia. And should we not wait for that to
happen as opposed to the legislative branch putting its heavy
finger and thumb and entire hand and body on the scales of
justice in the development of our case law?
Mr. Bray. Well, the Constitution binds and demarcates the
authority of all three branches, it also binds the court, and
it gives to this House the authority to develop rules for the
jurisdiction of the Federal court. So, it is fully within the
House's constitutional powers.
Mr. Johnson of Georgia. I would like to ask Professor von
Spakovsky----
Mr. Issa. Without objection, the gentleman will have 15
additional seconds.
Mr. Johnson of Georgia. Thank you. I would like to ask
Professor von Spakovsky what, under Article I, section 8, power
gives the legislative branch the authority to legislate in this
area?
Mr. von Spakovsky. Well, Congressman, there would not be
any Federal district court unless you all said there were.
Mr. Johnson of Georgia. Well, I know that. And so----
Mr. von Spakovsky. And so, that gives you----
Mr. Johnson of Georgia. Enumerated powers.
Mr. von Spakovsky. Yeah, that is right.
Mr. Johnson of Georgia. Courts in the theory to the U.S.
Supreme Court, but what other enumerated power under Article I,
section 8, gives Congress the authority to legislate in this
specific area?
Mr. von Spakovsky. Oh, I think the very fact that the lower
courts would not exist unless you all said they exist gives you
a great deal of authority over shaping what they can do. I
mean, part of the problem here is, again, I am going to go back
to one of the key Supreme Court precedents here, on this U.S.
v. Mendoza.
Look, in that case, the Supreme Court said that a decision
in a case in the Federal courts is not going to apply to
nonparties to the case. And yet, here you have all these
Federal courts around the country extending these injunctions
to nonparties in the case. And part of the problem here, and
why I agree with Professor Bray that Congress has got to do
something about this, is--the Supreme Court is not----
Mr. Johnson of Georgia. It just seems like----
Mr. von Spakovsky [continuing]. Is not enforcing the
discipline of that----
Mr. Johnson of Georgia. It seems like it has gotten to the
point where we are deciding our case law based on who is in the
executive branch. And with that, I will yield back.
Mr. Issa. I thank the gentleman. We now go to the gentleman
from Ohio, Mr. Chabot.
Mr. Chabot. Thank you, Mr. Chairman. This has been a very
interesting discussion here this afternoon, I think. And I have
to say starting off, I think, Professor Bray, I think you have
got a reasonably good idea as far as maybe the way to handle
this.
The challenge is passing anything substantial which can
make it through the Senate. We can get things passed in this
Committee, sometimes they are bipartisan, sometimes they are
not. We can get things through the floor, but the Senate has
different rules over there and they can--we need 60 votes to
get anything done. And one side or the other thinks because if
something passes it is going to adversely impact them
politically and they could run against the other side and say,
``They were a do-nothing Congress.''
It is hard to get anything done in the Senate under the
current rules, except during a process called reconciliation
where you do not need 60 votes. And that is why we at least
have a chance of getting the tax bill that already passed
through the House through the Senate. But I have already gone
way off from where I had intended to go, and I only get 5
minutes.
So, I agree with a lot of what I have heard from
colleagues, and I agree with--although there are some things
that obviously you all differ on. But we have 500? 600? And
there are vacancies now, but how many federal district court
judges do we have right now? Is it 550? Or anybody know
approximately what that number is?
Ms. Frost. Approximately 650--680, I think.
Mr. Chabot. Six-hundred-and-fifty, 680?
Ms. Frost. I think it is 680.
Mr. Chabot. Six-hundred-and-eighty? Okay. It just seems
that there is something inherently wrong when you can forum
shop under the existing things, which is basically, especially
in the last 3 years, been happening. You know, Republicans go
to the fifth circuit out of Texas where they consider they are
going to get more conservative judges and agree with them when
they were up against Obama, and now Democrats, the Liberals, go
out to the West Coast, the ninth circuit, because they think
they are going to get more for a variety of reasons opinion.
And you can literally stop something that the dually-
elected President of the United States has determined with his
powers to do. Sometimes, you know, Congress has passed
legislation so that sometimes it is an executive order that he
is acting on.
But it just seems wrong. They could have gone to any other
judge, got a completely different opinion, and as the chairman
said, it can be in effect for months because of that one
unelected judge. Or it could be as long as a year sometimes.
And these are pretty impactful things whether you are talking
about DACA or you are talking about a type of travel ban.
Although, you know, that term--some people disagree with the
term there.
But this is something really wrong with our government when
that can happen. With one person acting in that way, and you
have sort of gone to that person because you have got a really
good idea which direction they are going to go. I do not think
the American people are served under that process and I think
we have a responsibility to change it. I would love to hear a
comment, maybe I will start with you, Professor Bray.
Mr. Bray. I agree. I cannot speak to the political
realities, though I do hope that the fact that both sides have
been on the receiving end of national injunctions will give
everyone incentive to see their potential danger.
And also, the potential infringement on the prerogatives of
Congress because it is statutes that are passed by Congress
that can be knocked out by a single judge instead of the more
orderly process through precedent. So, I would hope there would
be some sense of Congress as a body of this is the importance
of this and not just each party.
Mr. Chabot. And I guess--and I have only got 1 minute and
10 seconds, now 9, now 8 seconds left here--so, I will really
just ask this. You had mentioned for 170 years this did not
happen. You know, it has only happened for 50, and it has
really only happened for the last 3 years. How did we, as a
Nation, get by without doing this for that period of time?
It reminds me a little bit of the, you know, the Florida
Department of Education. I am a former schoolteacher. We did
not have a Federal Department of Education until the 1970s. How
in the heck did we educate our kids prior to that? You know, we
do things, and there are a lot of people who disagree that
suddenly the education system is better since now we have a
Federal Department of Education. I am getting a little off
track here again.
But we did not do this for a long time and now we are doing
it. Let me ask you, Mr. von Spakovsky, how did we get by with
it and is there any lesson here and how should we change this?
Mr. von Spakovsky. Look, I think part of the problem is,
and I do not want to be too critical about this. But look,
Congress, you have delegated too much of your authority to the
executive branch and to executive branch agencies. And
unfortunately, too many of the statutes that you have passed
are so broadly worded that you are giving a lot authority to
these agencies to interpret the law, come up with their own
regulations, and that is why we end up in court so often.
You know, there are so many lawsuits filed against Federal
agencies over the regulations issue and that is because
Congress is delegating too much authority to these agencies.
You need to pull that power back into Congress, and that is
part of the problem.
Mr. Chabot. I completely agree with you, and I am,
unfortunately, out of time. Thank you very much.
Mr. Issa. We now go back to the chairman of the full
committee for a second round.
Chairman Goodlatte. Well, thank you, Mr. Chairman. I want
to pursue another line in my question. I do not disagree with
Professor Bray and Mr. von Spakovsky that asserting the
limitation of the jurisdiction of the courts would be a good
solution, but I am not sure that that is very easy to do.
I accept your criticism, but when I try to get something
like that all the way through the House and then through the
United States Senate, I realize great limitations on our power.
And you are right, the horse is out of the barn on a lot of
things.
And it might be easier to do something more modest. It
might get some bipartisan support. What if, for example--
because this has affected, you know, initiatives on, you know,
from both a conservative and a liberal perspective--what if you
were to raise the standard for issuing the injunction in the
first place? To require that an injunction that is broad in its
scope has to be a three-judge panel, still immediately
appealable but still having that lengthy time that elapses?
But before the injunction can ever be issued, three judges
all have to agree on the same, you know, wherever you go, three
judges are pulled together under a random selection system,
like our Federal courts are supposed to use. And three judges
would all have to agree before an injunction can be issued as
opposed to one individual making this decision.
I mean, we do not recognize that anywhere else through this
whole process, whether it is congressional action or action by
the higher courts that require at least some kind of majority
opinion.
I would say, for this initial stop of a President's clear
authority, or a congressional clear authority, to say, ``Oh,
no. That cannot be stopped,'' would take more than one
individual district court judge. We will start with you,
Professor Bray. I know you like your alternate better, but
short of that, what else would you suggest?
Mr. Bray. So, I would be wary of anything that would seem
to put Congress' imprimatur on courts granting injunctions that
go beyond the parties. So, if you set up three-judge court just
for those injunctions? One problem you will run into is that
those, I think they will be on the judicial power.
Another problem is that the injunction is drafted at the
end, logically, of the decision, whether on the decision on the
unlikelihood of the merits for preliminary injunction or at the
end for a permanent injunction. And so, you might not know
until you get started.
I think there are ways you can think about raising
standards for injunctions that might indirectly affect this
question. So, one of those is injunction bonds. It used to be
the case that injunction bonds were more generally required for
preliminary injunctions. That has largely fallen into desuetude
over the last several decades.
If there actually were injunction bonds, then that would
give plaintiffs an incentive to only ask for injunctions that
protected them because they would not want to pay for an
injunction if they wound up being wrong and that was broader.
So, that might be an indirect approach, but I would be wary
of seeming to give this power to the courts that I do not think
they constitutionally have.
Chairman Goodlatte. But they have it unless somebody tells
them they do not, right now. And, you know, I brought this up
with the Chief Justice and with the Judicial Conference of the
United States and said, ``This is something that you can
address more easily than the Congress can address.'' And it has
only been about 6 weeks since I did that, so I think there is
maybe some hope there is something.
But I have not seen a recognition on the part of the courts
that this is an abuse of power that they should, from the top
down, undertake to restrain because right now they are just
letting it happen. Professor Frost.
Ms. Frost. Yes, sir. I just want to say, in some ways, I
think this hearing, while great to have this conversation, is a
little premature in part because--and I want to give them
credit--Professor Morley and Professor Bray have changed the
way that some courts are now approaching this. They are now
citing their articles and saying we need to be a little more
careful. They are not taking up the position Professor Bray
takes, and I hope they do not because we disagree that they
should never have a nationwide injunction.
But they are saying look at those concerns that Professor
Bray and Professor Morley raised in their articles. We are
going to look at those and think about them and think about
this more seriously, rather than just, you know, issue a
decision ordering a nationwide injunction without any thought.
So, I think the district courts are beginning to think
about a little more seriously than they did in the past. And
there is a conversation starting now around this----
Chairman Goodlatte. But would you say we are premature
because you would also say that they would be premature in
coming and testifying if we had thought of this and raised this
first. So, I do not think it hurts for anybody to raise this
subject----
Ms. Frost. I am sorry, I did not mean to suggest it was
premature to have the hearing. It might be premature to
legislate because of the fact that I think courts are beginning
to look at this and question themselves. I do not think the
hearing is premature but to----
Chairman Goodlatte. I disagree with you on that.
Ms. Frost. Yeah. And you mention three-judge panels. So, of
course, that was tried and then abandoned in another context
because it was so onerous and difficult to maintain. And I will
also point out you can get a very quick appeal to an appellate
court, which is a court of three judges. So, you can get three
judges looking at this very quickly if you want to.
Chairman Goodlatte. Mr. Morley.
Mr. Morley. I agree with Professor Frost's comment. The
Federal law used to require three-judge panels for injunctions
in constitutional cases. And simply because that was such an
overload on what has now become an even more burdened judicial
system, I think that requiring three-judge panels would make
things even worse for the Judiciary.
It also does not solve the Article III issue, that Federal
courts do not have Article III jurisdiction to grant relief to
third-party nonlitigants, that the plaintiffs do not even have
standing to enforce their rights.
I have tried to include proposed language in the statutory
proposal in my written statement by preceding the prohibition
on nationwide injunctions with ``unless otherwise required by
the U.S. Constitution or some other provision of applicable
law.''
So, if the court, whether it is the district court--
ultimately, the Supreme Court--if the court were to conclude
that for equal protection reason or for other reasons in a
particular case only enforcing some peoples' rights would be
constitutionally problematic, which I think is a very under-
examined and difficult issue in itself.
But if a court were to conclude that anything less than a
nationwide injunction would be unconstitutional, including that
proviso, including that qualification, would give it the
flexibility in that rare extreme case then to do what it
believes the Constitution requires, subject, of course, to
further appellate review.
So, I think with that qualification, unless otherwise
required by the Constitution or other applicable law,
nationwide injunctions will be prohibited. And of course, there
is a little bit more detailed language in the proposal. I think
that might be able to get more support rather than a flat
unqualified ban.
Chairman Goodlatte. Mr. von Spakovsky.
Mr. von Spakovsky. Look, I do not think I really have
anything to add to that other than to say that, look, requiring
a three-judge panel to be able to issue this kind of injunction
is going to raise the burden on the judges. Because the whole
problem we have got right now is, going back to what we have
said before, is you have got Federal judges who are ignoring
Supreme Court precedent and you do not have the Supreme Court
imposing discipline on them for doing that.
Chairman Goodlatte. I do not disagree, but I think raising
the burden would be a good thing in terms of making it less
likely they will precipitously issue an injunction without all
of the facts being developed and all of the parties being
heard. And all the law being considered, and whether or not
they have the authority to do what they are doing. So, thank
you, Mr. Chairman. I appreciate this very much.
Mr. Issa. Thank you. Okay, I think I am going to be the
closer here, and I want to just go through a couple of things.
There was a question earlier and, you know, one of the weakest
things we can do but most profound is to read a couple of words
from the Constitution. And so, I will rely on that.
In Article III, section 1, a portion of the paragraph says,
``Judicial power of the United States, shall be vested in one
Supreme Court, and in such inferior courts as the Congress may
ordain.'' But in section 2 of the same Article III, I think
something that, when that question was asked earlier, is
probably appropriate. It says, ``All cases affecting
ambassadors, other public ministers and consuls, and those in
which a State shall be party, the Supreme Court shall have
mentioned, the Supreme Court shall have appellate jurisdiction,
both in law and in fact, with such exceptions, and under such
regulations as the Congress shall make.''
And I think what is important there is obviously--and it
has been done--we have the right to limit the Supreme Court in
what they hear. So, would it not be reasonable to say that
inferior courts, we have the same right, and then ultimately,
the question of nationwide injunctions is within the power of
Congress? It is only a decision for us to make.
Mr. Bray. I think that is correct, and I would also add
that the necessary and proper clause, in its horizontal aspect,
passing laws for the carrying into effect the powers of other
departments (in this case, the Judiciary) is another ground of
authority for Congress.
Mr. Issa. So, let me go through a hypothetical because I
want a bunch of them but there is one that has bothered me
since this began. In a case, any case, in which you have a
plaintiff and in which the United States of America is
ultimately the defendant, you have two sets of remedies to be
considered.
And I know that the case in Texas is an interesting one.
The first case is the plaintiff's need to have a remedy; and
so, the judge grants a remedy for that, and we can argue
whether the remedy has to be that broad.
But let's assume for a moment that the remedy cannot be a
nationwide injunction. It can only be a remedy for that
individual or entity, such as you can come to Washington State
schools. Then the question is, is it a separate question for
the judge and for all the courts of the question of should this
apply to bind the Federal Government from executing such
actions in any other case substantially similar?
Is that clearly a separate question in most cases? In other
words, the unconstitutional question? Would you all agree that
that second question is normally definably different in that it
is a question of implementing against parties not there in
which the circumstances could be different? Is that a fair
assessment? So, let me ask a question for which I will more
than just acquiescence that you heard me say it.
If we were to make a two-part test, would we not be
creating a situation in which the judge deals with the
plaintiff and the remedy that is narrowly focused on what can
be done and needs to be done, and then if, and only if, the
moving party, the plaintiff, asks for and the judge agrees that
further limitation of the actions of the United States
Government is needed, makes a decision, and then we, in
Congress, determine a process of the courts?
And I am stopping it there because I do not know that today
is the day--and I would like all of your input--whether today
is the day to say, ``Okay, we go to the D.C. Courts, we go to a
three-judge panel, all of the other potential remedies.''
But is it not reasonable to say there is two decisions and
if a party asks for the broader decision, if the judge agrees
that it would be appealable to the broader decision, then you
go to a process that clearly is beyond the scope--because we
will have limited it--beyond the scope of that particular
judge? Your comments?
Mr. Bray. I think you are right that it is two separate
inquiries, but I do not think a new process is needed for that
separate inquiry. That is the doctrine of precedent. That
already exists. So, injunctions are remedies to protect the
parties, precedent is how one case ripples out to other cases.
That is the way it has worked throughout most of U.S. history
and there is no reason it cannot continue to work that way.
Mr. Issa. Professor.
Ms. Frost. So, I guess I want to first say that I am not
sure it is always these two separate issues, so to go----
Mr. Issa. No, and I agree that the case of if somebody
comes in to the country, it could be broader in the sense that
they will come, if you are talking about, for example, if you
were on the other side of the issue and said you were letting
somebody in and they are going to have a criminal effect or a
welfare effect, and so on. The State could say that it still
affects me.
But the reason I am asking this question, and I want to
somewhat limit the discussion, so we can close out
appropriately, is one of the questions that I am debating here
is: do we do legislation, which Professor Bray does not believe
we should? And if we do legislation, the real question is, if
there is a recognition that there are others--if you will, a
whole class--there is a process?
But if there is a potential recognition that the
government, let's say the EPA for a moment, has clearly done
something that they should not do. You have to have standing in
order to bring that case, that question of constitutionality or
authority. And if you cannot use this case to pivot to it, then
the question for the court is they cannot act sua sponte, they
have to have a case before them.
So, that is why I am asking, can the case before them
trigger the ultimate question, that in some cases was decided,
which is notwithstanding a party present, we want to bind the
executive branch from action over everyone?
And I do want to ask it and would like further study, and I
know there is some reading material already available. I have
looked at some of it. Because I think that is a question before
this committee is, does the process truly envision the question
of striking down the constitutionality in the fastest possible
and yet fair system? Not as to the original plaintiff, but as
to the question of whether the actions of the executive branch,
for example, exceed that which Congress authorized? Which
ultimately, as you know, we have had a vexing time with here.
Briefly.
Ms. Frost. Yes. So, I agree there might be cases in which
the complete remedy to the plaintiff is available without
affecting others. And in those cases, that should be taken into
account by a judge and should be a reason to hesitate, I would
say, to issue a nationwide injunction.
I do, though, urge you to look at my written testimony
where I cite a case from the sixth circuit where the sixth
circuit has 18 States suing to strike down a regulation where
the EPA was trying to broaden its authority, expand the scope
of its operations.
And that court said I am going to issue a nationwide
injunction, not one limited to the 18 states, because it seems
impossible to administer, would create disuniformity and
confusion to say the EPA can regulate certain types of things
outside of these 18 States but not within them. And that is
another example of where I think the need for uniformity may
have suggested that the cost-benefit analysis favored a
nationwide injunction in that case.
Mr. Issa. Any other final closing questions or statements?
Mr. Morley. Mr. Chairman, I totally agree with you that
those are two separate questions, but courts should not reach
that second question. If a plaintiff wants to seek relief for
third parties other than itself, or him or herself, there is a
class action mechanism for that. So, it is almost a non
sequitur for a plaintiff to bring a nonclass case and then a
court at the end to be deciding whether or not it should grant
class-wide relief. The Supreme Court has repeatedly held----
Mr. Issa. Even in a class action case you are not
essentially striking down the underlying regulation or action
as to parties not in class.
Mr. Morley. Exactly. You would be providing the relief to
the plaintiff class, which might be defined broadly as anyone
adversely affected by that regulation. So, it might be
equivalent to striking it down for everyone, depending on the
class definition. But again, that is within the context of rule
23.
If I could read you two sentences that the Supreme Court
has issued. In Doran v. Salem Inn, the Supreme Court held,
``Neither declaratory nor injunctive relief can directly
interfere with enforcement of contested statutes or ordinances
except with respect to the particular Federal plaintiffs.'' So,
the Supreme Court expressly said there that injunction relief
should be limited to plaintiffs.
And then Justice Scalia, in a concurring opinion in Salazar
v. Buono from 2010. He said, ``A plaintiff cannot sidestep
Article III's requirements by combining a request for
injunctive relief for which he has standing with a request for
injunctive relief for which he lacks standing.''
So, the simple fact that the plaintiff might be entitled to
an injunction and might have Article III standing for himself
does not allow courts to go on and ask that second question.
So I would join with Professor Bray's advocacy against
having courts ask that second question and, if necessary, pass
legislation to prevent them from doing so.
Mr. Issa. Good.
Mr. Nadler. Professor Morley, if the Supreme Court said
that, why do we have this problem now? Why do we still have
these nationwide injunctions?
Mr. Morley. In part, because most of the nationwide
injunctions have not yet been fully litigated on the merits
before the Supreme Court. It might very well that in several
years the Court will have an opportunity to directly and
squarely address the merits and several years from now the
Court might issue a ruling reaffirming these cases and
enjoining nationwide injunctions.
Mr. Nadler. So basically because since that case, or since
we started getting these nationwide injunctions, they have not
gone onto the Supreme Court is what you are saying?
Mr. Morley. We have seen requests for emergency relief, we
have seen requests in the context of interim relief, but a full
final ruling on the merits----
Mr. Nadler. Okay. Could Professor Frost comment on that?
Ms. Frost. Well, I mean, he was quoting from a Supreme
Court case that seems to support that position. I mean, I can
quote from Califano v. Yamasaki where the Court said,
``Consistent with principles of equity jurisprudence, the scope
of injunctive relief is dictated by the extent of the violation
established, not by the extent of the plaintiff class.'' That
was a case about a class action, but the principle here is the
remedy goes beyond the class, and they have said that.
Mr. Nadler. Thank you.
Mr. Issa. I guess I will close with one final question for
the record, and I would love to have your follow-up answers. It
is clear that the administrations of both parties' overreach.
My distinguished colleague found out that apparently that goes
back to the 1700s and a king no longer named in the United
States. That is not unusual. That, in fact, one in power seeks
power and interprets the broadest possible interpretation of
their power.
And the cases that we have talked about here today, by both
parties' Presidents, represent a belief by the executive branch
that they have authority broader than at least some Federal
judges believe they have. And that is a fair statement.
As a result, the real question I leave you with today and
would ask you to give me your input and we may have a follow-up
hearing is relieving one of the actual overreach of the
President, or any portion of his administration, beyond the
scope of one plaintiff should be a reasonable goal that
Congress should have.
One should not assume that once there is a potential
recognition that there are multiple errors, you should not have
to litigate, and litigate, and litigate all the way to the
Supreme Court if the underlying question is: is that regulation
wrong or overly broad?
Since Congress could give itself standing and the court
might debate that, even after we give it to ourselves, the
question would be how do we, within the structure of the
Constitution, draw a statute that provides to some party,
whether it is Congress, or a damaged individual, or any citizen
of the United States, the ability to contest the underlying
principle of the overreach?
And I will give you the example. If you find, for example,
in this Committee's jurisdiction a patent that claims that it
invented sunshine, you can go to the PTO and you can seek
redress, even if you are not a party, and say it is just overly
broad, obvious, and so on. We have done that.
We do not have the equivalent in the case of a regulation
that may broadly injure everyone, but you cannot get standing;
and it is vexing for this committee. It is vexing for Members
of Congress on both sides. And so, since we have a difference
of opinion on some part of it, the resolution would be finding
a way, with or without an individual, to figure out how to roll
back decisions.
And we have been talking about executive orders up until
now, but obviously we have been talking around the questions of
a preponderance of regulations interpretations guidance that
often nobody in the White House even knows exists until it
comes to their attention well into the lawsuit.
Mr. Bray. I think there should be legislation prohibiting
national injunctions, step one. And I think you have got your
finger on what is, for me, the strongest argument for the
national injunction. But there is a kind of disarmament of the
courts when the executive goes beyond the authority the
executive is supposed to constitutionally have.
Maybe then we want a lot of courts to go beyond the
constitutional authority they have under Article III with the
judicial power. Kind of equilibrium adjustment. I do not buy
it, though. I think it is two wrongs make a right, and I think
that is a separate issue that Congress should take up in
separate legislation about the power of the administrative
agencies.
I would add two final points on this. One is there have
been cases of executive overreach before, including in some of
the cases in the New Deal that were struck down, and some of
the statutes that were stuck down, and the system of deciding
one case at a time worked.
The last point I would make is that our system does not get
at the principle all by itself. It only gets there through
cases. There is some imperfection to this. It is not as clean.
It is not as neat. It is not as crisp. But it is part of the
human fallibility of a system with lots of judges, with State
and Federal courts, that there is going to be some messiness,
and this is the best we have come up with and it is a second-
best world, and it works pretty well.
Mr. Issa. Well, I want to thank you all for this today. We
will go no further on commenting on 680 Federal judges and
their individual powers for today, but please feel free--we
will hold the record open for 5 days--but accept beyond that
any input you have for the committee on a bipartisan basis.
With that, we stand adjourned.
[Whereupon, at 3:35 p.m., the subcommittee was adjourned.]