Sanctuary cities as the next nationwide injunction test case

However the Supreme Court decides the travel ban case in the next 10 days, it may well avoid taking a position on one of the numerous issues raised in that litigation — whether the district court in Trump v. Hawaii lacked the authority to issue a nationwide injunction. But the justices may not be able to duck the broader debate over the propriety of nationwide injunctions for much longer, thanks to an unusual application for a “partial” stay filed by Solicitor General Noel Francisco on Monday in Sessions v. City of Chicago.

The City of Chicago case is one of several pending challenges to actions taken by Attorney General Jeff Sessions under Executive Order 13,768, which provides that certain “sanctuary jurisdictions” that refused to comply with some immigration enforcement measures would not be “eligible to receive Federal grants, except as deemed necessary for law enforcement purposes” by the attorney general or secretary of Homeland Security. As relevant here, the city of Chicago sued challenging conditions that the attorney general subsequently imposed under the executive order on receipt of funds under the Edward Byrne Memorial Justice Assistance Grant Program, claiming that they were both unlawful and unconstitutional.

The U.S. District Court for the Northern District of Illinois agreed with the city with respect to two of the three challenged conditions — the “notice” condition, which requires advance notice to federal authorities of the release date of persons in state or local custody who are believed to be noncitizens, and the “access” condition, which requires local correctional facilities to provide access to federal agents to meet with those persons. Both of those conditions, the district court ruled, could not be traced to any statutory authority, and therefore exceeded the attorney general’s authority to impose unilaterally. And because of considerations the district court deemed unique to immigration law, not only did Judge Harry Leinenweber enjoin the attorney general from continued enforcement of the conditions against the city of Chicago, but he issued the injunction on a nationwide basis.

After refusing to stay the injunction pending appeal, a three-judge panel of the U.S. Court of Appeals for the 7th Circuit affirmed in April 2018, unanimously concluding that no statute granted the attorney general the authority to impose the “notice” and “access” conditions. As for the nationwide scope of the district court’s injunction, a majority of the 7th Circuit panel stressed that “nationwide injunctions should be utilized only in rare circumstances,” but concluded that the city’s suit was one such circumstance, because “[t]he case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors nationwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief.” Judge Daniel Manion dissented only with respect to the nationwide nature of the injunction. As he wrote, “Other jurisdictions that do not want to comply with the Notice and Access conditions were not parties to this suit, and there is no need to protect them in order to protect Chicago.”

The government sought en banc rehearing of the panel decision only with respect to the nationwide scope of the injunction, and a stay of that aspect of the injunction (but not the injunction itself) pending disposition of its petition. On June 4, the 7th Circuit granted rehearing en banc “only as to the geographic scope of the preliminary injunction entered by the district court,” but deferred the government’s request for a ruling on its application for a stay until the Supreme Court decided the travel ban case, which “may facilitate our disposition of the pending motions.”

Given the full 7th Circuit’s refusal to rule immediately on the stay application, the solicitor general on Monday filed an application for a partial stay directly with Justice Elena Kagan, in her capacity as Circuit Justice for the 7th Circuit. The application asks Kagan to stay the nationwide scope of the district court’s injunction pending the en banc 7th Circuit’s disposition of the government’s petition for rehearing — which looks like it will be argued later this summer — and, “if necessary, pending the filing and disposition of a petition for a writ of certiorari and further proceedings in this Court.” Later on Monday, Kagan ordered a response to the application — by 5:00 p.m. on Wednesday, June 27 (by which point the Supreme Court may well have decided the travel-ban case).

Thus, although the government is not challenging the substance of the district court’s injunction, it appears willing to use that injunction as a vehicle to challenge the propriety of nationwide injunctions more generally — perhaps more so than in the travel ban or DACA litigation. Whether the justices are interested in such a challenge (especially in a case in which the government may be all-but conceding the weakness of its position on the merits) remains to be seen.