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The Argument For a Nationwide Injunction in State of New York v. U.S. Department of Justice

By Caitlin Kierum*

On November 30, 2018, Judge Edgardo Ramos from the United States District Court for the Southern District of New York authored an opinion granting partial summary judgment in favor of the plaintiffs in State of New York v. United States Department of Justice, granting the parties in the litigation injunctive relief, but declining to issue a nationwide injunction against conditions that the opinion deemed unconstitutional and unlawful.[i] However, as a matter of judicial efficiency, I argue a nationwide injunction is necessary to the resolution of this case.

Nationwide injunctions have become increasingly prevalent, especially over the past decade.[ii] A nationwide injunction is a form of injunction that extends its protection beyond the plaintiffs in the litigation and forecloses the government from applying the enjoined conditions against anyone.[iii] With its increasing use in courts, scholarship and debate on the use of nationwide injunctions has consequently increased.[iv]

On July 25, 2017, the Department of Justice (“DOJ”) issued a press release following their solicitation for the 2017 Edward Byrne Memorial Justice Assistance Grant Programs (“Byrne JAG”),[v] introducing several new immigration-related conditions that were going to be placed on the award.[vi] These conditions were added to the fund application process following the release of Executive Order 13768 on January 30, 2017,[vii] when President Trump declared that because “Sanctuary Jurisdictions” violated federal law, they should not receive federal funding except as required by law.[viii] In response, multiple cities and states have sued the DOJ to obtain declaratory and injunctive relief against these conditions.[ix] In line with the decisions rendered in the related litigation, Judge Ramos granted declaratory and injunctive relief to the plaintiffs, noting that the conditions the DOJ imposed were not lawful under the Administrative Procedure Act (“APA”).[x]

The DOJ grant conditions violating the APA include: compliance with 8 U.S.C. § 1373, access to local jails or state prisons for enforcement officers to inquire about the status and eligibility of aliens located there, and notice to the Department of Homeland Security 48 hours in advance of when an alien is set to be released from a prison or jail.[xi] Judge Ramos stated that these conditions were ultra vires, and arbitrary and capricious under the APA.[xii] 8 U.S.C. § 1373 is a statute that governs communication between government agencies and the Immigration and Naturalization service, requiring that state and local governments not prohibit or restrict information about citizenship or immigration status of individuals.[xiii] In addition to his ruling about the violations of the APA, Judge Ramos also ruled that 8 U.S. C. § 1373(a)-(b) as it applies to state and localities, was facially unconstitutional under the Tenth Amendment because the code provisions commandeer state power.[xiv]

Judge Ramos, however, declined to issue a nationwide injunction because the plaintiffs had not sufficiently shown “nationwide impact” and because a nationwide injunction has not been successful in the related litigation yet.[xv] Judge Ramos cited the language of Califano v. Yamasaki,[xvi] insisting that the relief granted to plaintiffs must only be that which is “necessary to provide complete relief to the plaintiffs.”[xvii] Yet, until the unlawful conditions placed on the award are fully and completely enjoined, the DOJ will continue to release future awards contingent upon the acceptance of the conditions.[xviii] As a result, plaintiffs will have to continue bringing similar lawsuits each year to re-enjoin the conditions.[xix] Essentially, decisions that do not compel the DOJ to remove these conditions altogether fail to provide plaintiffs the complete relief they are seeking. Having to continually re-litigate the issue over these same conditions with every passing year, both with current plaintiffs and new plaintiffs seeking injunctive protection, is simply inefficient and impractical when the issue could be swiftly resolved with a single nationwide injunction.[xx] Given that each judge thus far has held that certain conditions on this award are unconstitutional,[xxi] continuing to litigate the issue appears to be a waste of time and money, in addition to delaying and complicating the process of applying for and receiving the Byrne JAG award. Furthermore, because nationwide injunctions are the “least disruptive remedy for the third parties affected by them,”[xxii] one would be appropriate in New York, a case which affects a large number of third parties who benefit from the Byrne JAG awards.[xxiii]

Ultimately, a nationwide injunction is both applicable and essential to this litigation in order to assuage concerns over judicial efficiency. Furthermore, the implications of a nationwide injunction in this case specifically are minimal in terms of repercussions, as an injunction would only stop the DOJ from imposing these conditions on a single award program. If the conditions were enjoined, the award could simply revert back to the grant’s formulaic process that has worked adequately, in terms of disbursing the award to qualified applicants who meet a statutorily-mandated formula, since the award was created in 2005.[xxiv] A nationwide injunction here is not telling the DOJ generally that taking agency action to support Executive Order 13,768 is unlawful, but simply that supporting the order by attaching immigration-related conditions on these funds intended to support state law enforcement programs is not allowed.[xxv]

However, stepping back from this particular litigation and considering what granting a nationwide injunction would do to the system as a whole, there are consequences, especially if nationwide injunctions become a widely acceptable practice condoned by the Supreme Court.[xxvi] And admittedly, there are many situations where a nationwide injunction is inappropriate.[xxvii] Nonetheless, in this specific case, it becomes a question of how many more individual prospective recipients of the Byrne JAG award must bring lawsuits to enjoin the DOJ, and how many more identically disposed decisions of the conditions’ incongruence with the law must be handed down before someone puts a definitive stop to the DOJ putting these conditions on the award.

*Caitlin Kierum is a Junior Editor on MJEAL. They can be reached via email at

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[i] New York v. U.S. Dep’t of Justice, 343 F. Supp. 3d 213, 245-246 (S.D.N.Y. 2018). The plaintiffs in this case, New York, Connecticut, New Jersey, Washington, Massachusetts, and Virginia, filed suit against the DOJ in response to three new immigration-related conditions that were placed on the Byrne JAG award.

[ii] Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. REV. 1065, 1071 (2018).

[iii] Gretzel Berger, Note, Nationwide Injunctions Against the Federal Government: A Structural Approach, 92 N.Y.U. L. REV. 1068, 1069(2017).

[iv] Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 HARV. L. REV. 417, 219 (2017).

[v] NATHAN JAMES, CONG. RESEARCH SERV., RS22416, EDWARD BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT (JAG) PROGRAM (2013). The Byrne JAG is a fund that awards money to states based on a formula that considers each state’s population and violent crime statistics. States who receive funding through this grant are able to use the funds for various projects, such as law enforcement programs, drug treatment programs, or crime victim and witness programs.

[vi] Press Release 17-826, United States Department of Justice, (July 25, 2017),


[viii] Exec. Order 13,768, 82 Fed. Reg. 8,799 (Jan. 25, 2017).

[ix] New York v. U.S. Dep’t of Justice, 343 F. Supp. 3d 213, 244-45 (noting that in each prior case, the court enjoined the conditions as being unlawful).

[x] Id. at 245-246.

[xi] Peck, supra note 8, at 2-3.

[xii] New York, 343 F. Supp. 3d 213, 245.

[xiii] 8 U.S.C. 1373 (2012).

[xiv] New York, 343 F. Supp. 3d 213, 245-246.

[xv] Id. Although a nationwide injunction was granted in City of Chicago v. Sessions, it was later stayed by the 7th Circuit in an en banc hearing, limiting the injunction only to the plaintiffs in the lawsuit.

[xvi] Califano v. Yamasaki, 442 U.S. 682 (1979).

[xvii] Id. at 244.

[xviii] U.S. Dep’t of Justice, OMB No. 1121-0329, Edward Byrne Memorial Justice Assistance Grant (JAG) Program (2019), 23-24. The solicitation for the Fiscal Year 2019 Byrne JAG award still contains the immigration conditions that have been sued over in this, and related, litigation for the 2017 and 2018 Fiscal Years.

[xix] Amended Complaint, at 3, New York, (No. 1:18-cv-6471) (adding concerns about the newly imposed 2018 conditions to the lawsuit).

[xx] Frost, supra note 2, at 1098.

[xxi] New York, 343 F. Supp. 3d at 224-25.

[xxii] Frost, supra note 2,at 1099.

[xxiii] New York, 343 F. Supp. 3d at 244. As Judge Ramos mentions in his opinion based off of the plaintiff’s complaint, there are numerous third parties who are behind the litigation that the States are bringing in the lawsuit. The Byrne JAG grants help grant recipients fund their local law enforcement programs and public safety initiatives. Thus, the third parties affected by the litigation are all of the programs that are not receiving funding, and all the citizens who are not receiving the benefits of those programs, simply because these conditions have not been fully, nationally enjoined.

[xxiv] James, supra note 6 at 2.

[xxv] See New York, 343 F. Supp. 3d 213 at 243-44 (holding that the plaintiffs have demonstrated injury because of the unlawful conditions placed on the award).

[xxvi] Nicholas Bagley & Samuel Bray, Judges Shouldn’t Have the Power to Halt Laws Nationwide, ATLANTIC (Oct. 31, 2018), The authors discuss numerous concerns with the rising prevalence of nationwide injunctions, namely that such injunctions encourage plaintiffs to forum shop, short-circuiting the process of allowing multiple judges independently to come to their own conclusions on the merits of each case, dueling injunctions, and giving unelected judges the chance to exercise a large amount of authority. But see supra note 18, showing that multiple judges across the nation have already weighed in on this issue in particular and come to virtually the same conclusion.

[xxvii] Frost, supra note 2 at 1090.

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