Samuel Bray on Lawfare frets about federal judges issuing orders with nation wide impact:
But those issues are secondary to the more fundamental problems—forum-shopping, decision-making, and the proper authority of the federal courts—discussed above.
To be sure, there is an important argument for the national injunction. Without a national injunction, there can be inconsistent decisions from different courts. One plaintiff might challenge her deportation and win; another plaintiff might sue in another court and lose. Admittedly, this kind of inconsistency is a failure of justice, a failure to give each person his or her due. But our legal system is constructed for fallible human actors. Our legal system makes the bet that tolerating some inconsistency between cases will create better decisions and more justice in the long run.
The executive order on immigration demonstrates acutely the real human cost to narrow orders, to injunctions that protect only the plaintiffs and not everyone else who might sue throughout the country. We cannot ignore, however, that the national injunction is counter to the way our system of federal courts operates. It is at odds with the Constitution’s grant of “the Judicial Power,” which is a power to decide cases for parties, not questions for everyone. And national injunctions are likely to lead to worse decisions, not better ones.
Democrats have good reason to cry foul. The district courts in Texas went far in binding the Obama administration with national injunctions, indeed much further than the district courts in California had gone in binding the Bush administration. But payback is no way to run a legal system. National injunctions are a bad idea no matter who is president.
Without further evidence, I doubt this is a payback; it’s a convenience – you use the tool best suited to your needs. If the federal courts permit national injunctions, you go for it.
But, as a non-lawyer, the whole forum-shopping issue makes me vastly uncomfortable, and has done so for years. Looking at the alternative – filing in all of the federal district courses – also makes me squirm. From Justice 101:
The federal court system has three main levels: district courts (the trial court), circuit courts which are the first level of appeal, and the Supreme Court of the United States, the final level of appeal in the federal system. There are 94 district courts, 13 circuit courts, and one Supreme Court throughout the country.
94 filings seems quite out of line. Even if there was some way to skip the district courts and go directly the circuit courts, 13 is still a bit hefty. But one can easily envision that creating a direct route to SCOTUS (the Supreme Court of the US) would lead to abuse of that route.
Perhaps if an identical filing in several of the courts (say, five), across several of the circuits, were all awarded an injunction, perhaps that would trip a nation-wide injunction. Something to think about. *Probably someone in the legal community has already suggested it.*
