Right. But one court said “this order violates the law” and the other court said “this order does not violate the law”. Why does the one court which decided that it violates the law have the right to override the other court which came to the opposite conclusion?
As far as I know, neither of those things has happened yet.
But your point is well taken. The ability of a district court to issue a nationwide injunction has been a matter of some controversy (most recently in the DACA and Don’t Ask Don’t Tell contexts).
One of the cases that often gets cited is U.S. v. AMC Entertainment, Inc., 549 F. 3d 760 (9th Cir. 2008):
That said, courts keep issuing nationwide injunctions, so I assume that the law is either unclear or favorable.
Right. I was imprecise. I meant “seems to violate the law/constitution to the extent that an injunction is warranted” and “does not seem to violate the law/constitution such that an injunction is not warranted”.
I don’t know if that’s the same issue. The one question is where a court is issuing an opinion where another court could theoretically issue an opposing opinion. The situation here would seem to be a case where another court has actually done so.
Your “why” is a little ambiguous as between “why does this follow from how our courts are set up” and “why should our courts be set up that way.” The answer to the first is because we are a land of multiple sovereigns and parallel authorities. The answer to the second is more complicated, but mostly having to do with the benefits of federalism and a judiciary in which complex legal questions get to percolate before final resolution.
That said, your characterization of the situation isn’t quite right. No court has reached the merits. One court has ruled that the likelihood of success combined with the other equities on the facts before it merits an injunction and another court has disagreed based on the different facts before it. So there isn’t even really a conflict in their interpretation of the law yet–though I agree one is strongly implied by the content of the MA decision.
But even if there were a real conflict, and one court said the law is X and the other court said the law is not X, that’s a perfectly ordinary situation in America. One court is not considered to be overriding the other one. An override would be a district court ordering the other court to dissolve it’s injunction or entering an incompatible injunction. That is forbidden by various federal courts doctrines.
Effectively it is. Because it amounts to the Court A saying (implicitly) to Court B “you think the law is X and we think the law is not X and we’re going to force everyone in the country to act in accordance with our position that the law is not X, such that your position on the law is completely moot.”
As you like. If you want to use “override” to mean “render temporarily moot,” then so be it. But the word has a technical meaning in the law that is different.
It seems like you think it shouldn’t work that way. But have you thought through the consequences of either (1) not permitting any nationwide injunctions; or (2) allowing district courts to bind each other?
I just wanted to say that this is an intelligent, literate, civil, informative discussion that has been a pleasure to read. 
I’m not sure I don’t think it should work that way, and I have not thought through the consequences. It was more of a GQ-type question.
It just strikes me as odd that one court’s interpretation of the law should prevail over another’s just because they are technically in a position to order an injunction.
But FWIW, what seems to make the most sense to me would be if a court can issue a nationwide injunction, but if contradicted by another court then each court prevails in its own jurisdiction. But this is not something I’ve thought through a lot. If you have anything to add as to the practical difficulties, then by all means …
One practical difficulty is that lots of issues are inherently national. Consider these facts in particular. If WA and MA conflict, I can enter the US as an immigrant if I book my trip to Seattle but not Boston?
It would also encourage some serious forum-shopping. If you don’t get a result you like, you can just keep suing in every state until you get a competing injunction. There’s some of that now, but it would multiply tenfold if conflicting injunctions reduced their scope. I suspect you’d effectively never have another nationwide injunctions, which would be a pretty huge limit on the power of the courts to keep the other branches in check.
I would assume that it would depend on whatever court has jurisdiction over the government official who is to enable your travel, not where you’re traveling to.
But more importantly, are you saying that the dynamic here only works that way in such circumstances?
ISTM that the reverse is a much bigger deal.
As it stands now, you can engage in much more than forum-shopping. You can keep going back again and again and lose again and again until you win once. You (and/or your ideological allies) can file any number of such lawsuits advancing the same legal arguments in multiple jurisdictions, and you can lose virtually all these lawsuits and have your legal arguments rejected by virtually all the judges who hear them, but if you find one single sympathetic judge then you’ve won just as well as if you won all the cases. (Which in fact seems to be what happened here.) These seems ridiculous.
I’m not sure which way these two concerns weigh. Let’s forget the TRO and PI issue for a moment and play this out. (Also set aside the fact that by the time a court rules on the merits this may all be moot).
Scenario: After a hearing on the merits, Judge Gorton (D. Mass.) concludes that the the EO is a lawful exercise of the President’s power to exclude certain classes of aliens (or that the issue is not reviewable; but something that gives you an answer on the merits).
In the meantime, Judge Robart (W.D. Wash.) holds a hearing on the merits and concludes that the EO is unlawful. He issues a nationwide injunction (concluding that the importance of the constitutional principles outweigh concerns of sister circuit comity).
If you were a CBP officer in Boston, what’s the law? What should be the law? If a Seattle judge can overrule the Boston judge, doesn’t that invite forum shopping?
Many different government officials enable your travel, and they are in different places. Indeed, many of them are outside the US. Which court governs them, in your set-up?
Can you clarify your question? I don’t understand it.
If that ever happens in reality, it might be a concern. Since it hasn’t, for a number of reasons, I’m not worried. Lots of times there is broad opposition to a national policy with colorable legal opposition but it is never enjoined. And what happened in this case is that a dozen courts agree with the Washington TRO and one disagrees, which is the opposite of the scenario you describe.
It’s not complicated. A court injunction overrides an executive order. A CBP officer has orders from only one court–Washington.
There’s forum shopping either way. The question is which incentivizes more forum-shopping, and which outcome is worse–courts that are powerless or courts that are powerful but checked by courts of appeals and the Supreme Court.
Each official would be subject to the court in their jurisdiction.
You’re envisioning a scenario where the ruling is “inherently national”. I assume the ability of judges to issue nationwide injunctions is not limited to those cases. Or is it?
AFAIK the WA judge is the only one who struck down the entire order. So it seems like everyone else disagreed about that aspect.
Right. That’s my point, which is a problem with your approach. It means that if I’m a visa-holder flying into the US, if I fly into Seattle then I get admitted but if I fly into Logan I don’t.
Ah, I see. I think the answer is “maybe.” There’s not a ton of law on the scope of a district court’s power to enter a national injunction. When they have done so, they have generally sought to justify it on the basis of the issue being inherently national.
No one else asked for that, AFAIK.
Good discussion of national injunctions here (siding against them): Multiple Chancellors: Reforming the National Injunction by Samuel L. Bray :: SSRN
Or - it occurs to me now - that if you really feel that having injunctions vary by jurisdiction is not workable, then I would think the conflict should be resolved in favor of not validating the injunction. The notion being that absent any conclusive ruling by the judiciary, the prior status quo should remain.
The problem with that is that you actually mean “consensus” not “conclusive.” And since there will never be consensus among three hundred judges about a big political issue, you’re denying courts the power to enter a timely injunction on any national-level issues. And let’s not be coy. “Not validating the injunction” is a euphemism for the President ignoring the law.
That strikes me as a wild overreaction to the situation that we have today, with relatively rare nationwide injunctions–the highest-profile of which is based on what is so far the majority’s understanding of the law (though, as you note, is broader than the question the other courts faced).
For my part, I’m not comfortable removing judicial checks from executive power. I didn’t like when the nationwide injunction was entered against Obama’s executive order, but I understood that this is the role of the courts in our country.
To the same extent that your position guarantees that there will be injunctions issued in every case.
Based on your premise that there will “never be consensus”, that is. (More below.)
True. Unless and until a higher court intervenes. I would assume in egregious cases they would be pretty quick on the draw.
My position is that your approach is more conducive to forum-shopping. We have no empirical test of that, because it hasn’t been tried. But we do have an empirical test of whether the status quo leads to “injunctions issued in every case.” It doesn’t.
Presumably, you would apply your approach to conflicts among the courts of appeals as well. So it’s really disabling the federal courts until SCOTUS gets to it.
Hard to know, because - per your cite above - the use of nationwide injunctions is a fairly recent development. So it’s hard to how widespread it is, or will be.
I don’t think so. There are a lot fewer appeals courts than circuit courts, so the opportunity for conflicting rulings is much smaller.
[ETA: perhaps you or another legal person can comment on this thread. Seems like something that’s relevant to lawyers, in terms of assessing the impact of preliminary rulings, but hasn’t attracted any substantive responses to this point.]