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January 28, 2020

Supreme Court Knocks Down Hawaiian Judge's Injunction Against Trump's "Public Charge" Rule Change;
Neil Gorsuch Slams Penny-Ante District Judges for Issuing Nationwide Injunctions, Legislating from the Bench

The"public charge" rule says that immigrants cannot be granted green cards unless they can show that they are self-sufficient and would not become public charges -- that is, dependents on the public fisc.

The old rule only looked at a few things to determine if someone would wind up a "public charge." The old rule absurdly did not examine whether the immigrant was currently on Medicaid, food stamps, or other forms of welfare.

Doesn't that seem like the first thing you'd look at to determine if an immigrant would be (or already is) a "public charge"?

Well, you would, unless, of course, it was your plan to socialize the United States by permitting in as many low-income, government dependent socialist-leaning immigrants as possible.

Trump changed the rule to require examiningobvious evidence of someone's status as a "public charge," so of course the Sorosian Left went crazy and filed lawsuits everywhere.


The policy in question would expand the government's ability to refuse green cards or visas for legal immigrants determined to be a "public charge," or dependent on public assistance. Those using or likely to use Medicaid, food stamps and other safety net programs would face greater scrutiny from immigration officials.

Should they not?

District court judges -- the lowest judges in the federal system, ruling alone, rather than part of a panel of judges, from the bench -- have, as usual, claimed to have the power to issue nationwide or even "universal" or indeed "cosmic" injunctions against enforcement of the rule.

Neil Gorsuch concurred with the judgement setting aside this claimed "universal" injunction, and then -- finally! -- ripped the Hawaiian judges presuming the authority to dictate the entire nation's laws from their dinky little bench.

Justice Neil Gorsuch in a blistering concurring opinion criticized federal judges who issue nationwide blocks on administration rules, potentially teeing up a wider challenge to the practice that has often stymied major parts of Trump's agenda and drawn scorn from Attorney General William Barr.

His concurrence is here. Some choice language below:

On October 10, 2018, the Department of Homeland Security began a rulemaking process to define the term "public charge" as it is used in the Nation’s immigration laws. Approximately 10 months and 266,000 comments later, the agency issued a final rule. Litigation swiftly followed, with a number of States, organizations, and individual plaintiffs variously alleging that the new definition violates the Constitution, the Administrative Procedure Act, and the immigration laws themselves. These plaintiffs have urged courts to enjoin the rule’s enforcement not only as it applies to them, or even to some definable group having something to do with their claimed injury, but as it applies to anyone.

These efforts have met with mixed results. The Northern District of California ordered the government not to enforce the new rule within a hodge-podge of jurisdictions--California, Oregon, Maine, Pennsylvania, and the District of Columbia. The Eastern District of Washington entered a similar order, but went much farther geographically, enjoining the government from enforcing its rule globally. But both of those orders were soon stayed by the Ninth Circuit which, in a 59-page opinion, determined the government was likely to succeed on the merits. Meanwhile, across the country, the District of Maryland entered its own universal
injunction, only to have that one stayed by the Fourth Circuit. And while all these developments were unfolding on the coasts, the Northern District of Illinois was busy fashioning its own injunction, this one limited to enforcement within the State of Illinois.

If some of this sounds familiar, it's because you've read about this unending game of district courts issuing nationwide, "global" injunctions and then Circuit Courts or even the Supreme Court staying those bullshit injunctions.

Even the Ninth Circuit found the government was likely to win on the ultimate merits (which means that an injunction cannot be laid against them, as criterion one for an injunction in your favor is that you are likely to win on the ultimate merits.

Now get ready for some Sauron-level snark from Justice Gorsuch, putting this dinky little New York district judge in his place for claiming to have Cosmic Power:

If all of this is confusing, don't worry, because none of it matters much at this point. Despite the fluid state of things--some interim wins for the government over here, some preliminary relief for plaintiffs over there-- we now have an injunction to rule them all: the one before us, in which a single judge in New York enjoined the government from applying the new definition to anyone, without regard to geography or participation in this or any other lawsuit.

The Second Circuit declined to stay this particular universal injunction, and so now, after so many trips up and down and around the judicial map, the government brings its well-rehearsed arguments here.

He says these arguments are "well-rehearsed" not as an insult to the goverment, but to the judges issuing these stays -- because these judges should have read the dozen prior rejections of these "global" injunctions.

They are just forcing the government to return to court, in dozens of courts, to make the same legal arguments.

Legal arguments that always win.

Not that the Hawaiian judges care about the law.

They're just legislating here.

Today the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois. But, in light of all that's come before, it would be delusional to think that one stay today suffices to remedy the problem. The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of "nationwide," "universal," or "cosmic" scope, these orders share the same basic flaw--they direct how the defendant must act toward persons who are not parties to the case.

I've never heard of a "cosmic" ruling. I think he's being sarcastic in mentioning the so-called "cosmic injunction," to ridicule these Hawaiian Judges' delusions of grandeur.

Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit. When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place. But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies.

This is a very important point, because Article III courts -- the independent judiciary specified in the Constitution, as opposed to Article II (executive) courts like courts martial -- are only permitted to rule on actual, real "cases and controversies." They cannot rule on abstract issues, render advisory opinions about how they might rule in the future, or rule about parties not before them.


They just have no power to do so. Doing so violates their grant of power under Article III.

Injunctions like these thus raise serious questions about the scope of courts' equitable powers under Article III. [Citations omitted.]


It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice
. As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions.

Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.

This is not normal. Universal injunctions have little basis in traditional equitable practice. [Citation omitted.] Their use has proliferated only in very recent years.

...

The rise of nationwide injunctions may just be a sign of our impatient times. But good judicial decisions are usually tempered by older virtues.

Nor do the costs of nationwide injunctions end there.

There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal.

Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide.

Thus, why so many Hawaiian Judges wind up ruling on these things -- leftwing plaintiffs are forum-shopping for the most leftwing, and indeed unethical, judges.

And the stakes are asymmetric. If a single successful challenge is enough to stay the challenged rule across the country, the government's hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94- to-0 win in the district courts into a 12-to-0 victory in the courts of appeal. A single loss and the policy goes on ice— possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay.

And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari [that is, grants a review].

What in this gamesmanship and chaos can we be proud of?


I concur in the Court's decision to issue a stay. But I hope, too, that we might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.

What could the Supreme Court do?

Well, one thing it could do -- and might eventually have to do -- is issue an order that no injunctions affecting immigration is to be granted any effect or dignity until it is confirmed by, say, an en banc review from the Circuit Court sitting in review. In other words, an automatic pre-emptive dismissal.

I would say this is a shot across the bow, a last warning: Stop issuing "cosmic" injunctions, or we'll clip your wings forever.

It is high time to end the Tyranny of the Hawaiian Judges.

And now, I need a cigarette.

Well, not a cigarette. But a nice strong vape.


Princeton can use a man like Neil Gorsuch.






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