Two days ago I wrote about the brewing battle between (1) one district court's national injunction against the lifting of Title 42 and (2) another district court's purported vacatur of Title 42. Later that day there was another development. Judge Sullivan of the United States District Court for the District of Columbia issued this minute order in the docket:
MINUTE ORDER granting 166 Unopposed Emergency Motion for Temporary Stay of the Court's November 15, 2022 Order ("Emergency Mot."). The government states that "[t]he requested temporary stay… is not for the pendency of appeal but rather for only a temporary period." Emergency Mot., ECF No. 166 at 3. The government further states that "DHS requires a short period of time to prepare for the transition from Title 42 to Title 8 processing, given the need to resolve resource and logistical issues that it was unable to address in advance without knowing precisely when currently operative August 2021 Title 42 order would end. Cf. 87 Fed. Reg. at 19,95456 (setting effective date of Termination Order for 52 days from date of issuance to, among other things, provide DHS with additional time to ready operational plans). During this period of time, DHS will need to move additional resources to the border and coordinate with stakeholders, including non-governmental organizations and state and local governments, to help prepare for the transition to Title 8 processing. This transition period is critical to ensuring that DHS can continue to carry out its mission to secure the Nation's borders and to conduct its border operations in an orderly fashion. See, e.g., AARP v. EEOC, 292 F. Supp. 3d 238, 241 (D.D.C. 2017) (staying effective date of vacatur order for about one year to avoid the potential for disruption); NAACP v. Trump, 298 F. Supp. 3d 209, 24445 (D.D.C. 2018) (staying vacatur order for 90 days to avoid disruption)." Id. Plaintiffs do not oppose the motion. Pursuant to Federal Rules of Civil Procedure 59 and 60, the Court's inherent authority, and in view of the lack of opposition by Plaintiffs, the government's representation that the request for a temporary stay is not for the pendency of appeal, but rather to enable the government to make preparations to implement the Court's Order, the Court, WITH GREAT RELUCTANCE, grants the request. The Court's November 15, 2022 Order is stayed for five weeks, from November 15, 2022 to December 20, 2022. The Order will take effect at midnight on December 21, 2022. Signed by Judge Emmet G. Sullivan on 11/16/2022. (lcegs1)
A number of things about this are interesting, but let me highlight three:
- There is growing tension between the injunction of the United States District Court for the Western District of Louisiana and the orders from the United States District Court for the District of Columbia. One prohibits the administration from lifting Title 42; the other gives the administration time to make "operational plans" and "coordinate with stakeholders" for what is in effect . . . the lifting of Title 42. Perhaps the Department of Homeland Security can thread the needle here and avoid contempt, but in ordinary injunction practice the actions contemplated in the minute order would be an evasion or circumvention of the injunction.
- It's a familiar observation that the government sometimes uses consent decrees to achieve policy ends it otherwise cannot. "The courts made me do it," in effect. For example, Professor Michael McConnell wrote about this in a 1987 article called Why Hold Elections? – Using Consent Decrees to Insulate Policies from Political Change. The subtext here seems hard to miss, especially since the government's motion for the five-week stay of the vacatur is unopposed by the plaintiffs.
- The questions this minute order poses about vacatur underscore what a dubious remedy it is. The modification and dissolution of injunctions is well-known. If vacatur were an equitable remedy like an injunction, then it could be modified, dissolved, phased in, phased out, made conditional upon certain actions or non-actions by the defendant, etc. All that makes sense because the injunction is not operating on a rule but is instead operating on the relationship of the plaintiffs and defendants. It is in personam. But vacatur is not like that. There is no equitable remedy of vacatur. Perhaps it would be better understood as a statutorily created remedy that is in effect a declaratory judgment (which Sir John Baker compares to the prerogative writs). But if that's so, then there's no such thing as a judge declaring that at future date X, but not until then, it will be case that statute or rule Y is and has always been unlawful. The mental contortions for this are just impossible. If vacatur is a remedy, it is either a court action like an injunction, in which case it is impossible to square it with the principle that judicial remedies don't act directly on legal rules; or it is more akin to a declaration of invalidity, in which case it is impossible to square it with the idea of a five-week delay, a kind of springing declaratory judgment. And even declaratory judgments are only binding as between the parties to the case: a declaratory judgment does not operate on a statute or rule itself. (If you want to read more about the differences between injunctions and declaratory judgments, I explore them in The Myth of the Mild Declaratory Judgment.)
Two final caveats.
First, I appreciate the situation that Judge Sullivan is in. Under D.C. Circuit precedent, binding on the United States District Court for the District of Columbia, vacatur is entirely accepted. It follows in this case. And all parties recognize the logistical nightmare it inflicts in this case. That logical path is of course how we have wound up in a situation where there's a five-week delay for vacatur. So my critique is not of how Judge Sullivan got to this point, but of the compromised doctrinal structure that made that possible.
Second, it should be obvious but I will state this clearly so there's no misunderstanding: the problem here is not just vacatur, but also the national injunction. There should never have been a national injunction in this case (nor in any other). Moreover, the district court's standing analysis in the Western District of Louisiana case shows once again the direct relationship between the explosion of national injunctions since 2016 and a broad reading of Massachusetts v. EPA.
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