Tuesday, March 27, 2018

Issue Analysis: Jeff Sessions on Nationwide Injunction

On March 10, Attorney General Jeff Sessions gave a talk to the Federalist Society about the dangers of a nationwide injunction. The gravamen of Sessions' argument against nationwide injunctions is twofold: (1) nationwide injunctions violate the separation of powers principle, as they represent the judiciary's attempt to usurp the function of the elected branches, and; (2) nationwide injunctions are a novelty that has no basis in our legal tradition.

Both prongs are wrong. As to the second prong, Sessions said: "These [nationwide] injunctions block the government from carrying out a law — not just in one district or to one person, but anywhere in America. Scholars have not found a single example of any judge issuing that type of extreme remedy in the first 175 years of the Republic." This might be correct, but it is not obvious how, because the Attorney General's statement seems to define "nationwide injunction" in a peculiar way without actually explaining his definition. But if the Attorney General's complaint is that a court should not be able to issue orders whose effect reach beyond its territorial jurisdiction, he is certainly incorrect. Extraterritorial injunctions not only trace its heritage to the beginning of the Republic, but also to the beginning of the English legal tradition.

In the English legal tradition, there have been two courts: the court in law, which gives money award, and the court in equity, which issues injunctions. From the very beginning of its history, the equity court never recognized any territorial limit. The Court of Chancery, for example, regularly exercised personal jurisdiction over a non-English subject living outside of England, and issued orders for an arrest of the foreigner if the foreigner was found in the high seas. (See Alexander N. Sack, Conflicts of Laws in England, 3 Law: Century of Progress 1835-1935 352-53 (1937).)

This tradition remained unbroken in the United States. As early as 1794, the Supreme Court of Virginia ordered a party to convey the lands located in North Carolina. See Farley v. Shippen, Wythe (Va.) 254 (1794). The U.S. Supreme Court did the same: in Massie v. Watts, 10 U.S. 148 (1810), Justice John Marshall held: “the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.”

The principle behind this tradition is simple: as long as the court may validly assert jurisdiction over a party, the court can order the party to take any action under the law, regardless of where that action may take place. Under this logic, nationwide injunction makes perfect sense: assuming valid jurisdiction, the court can order the executive to take or not take certain action no matter where the action or the non-action may take place.

Perhaps the Attorney General's point was that it was novel for the court to order the executive in this manner. That may be true (I have not verified this independently,) but it is hard to imagine why this distinction matters. Sessions essentially makes a separation of powers argument: "These branches are coequal. The courts are not superior. On matters of policy, the branches that are directly accountable to the people must be given proper respect. That’s why it’s so alarming that judges are increasingly issuing nationwide injunctions . . ." But this cannot possibly be correct:  as long as Marbury v. Madison, 5 U.S. 137 (1803) remains a good law, no serious case can be made that the judicial invalidation of an executive or legislative action is a violation of the separation of powers principle.

Although Sessions inserted the obligatory piety that "This is not a political or a partisan issue[,]" hardly anyone could take such piety seriously when the Attorney General opened his remark by noting the Trump administration has been subject to the most number of nationwide injunctions based on his actions regarding the travel ban, deportation of DREAMers, etc. And an executive official claiming the executive branch needs more power over the judicial branch surely will not carry the day.

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