2019—Federal district judge Ketanji Brown Jackson issues a nationwide injunction (in Make the Road New York v. McAleenan) barring the Department of Homeland Security from enforcing its decision expanding the reach of its expedited-removal process to the statutory limit. In the course of her 122-page opinion, Jackson rules that plaintiffs had sufficiently established that her court had jurisdiction over the challenge to the decision; that Congress “did not intend to commit implementation of the expedited removal process it authorized entirely to agency discretion”; that plaintiffs had procedural claims under the Administrative Procedure Act; and that the DHS decision was arbitrary and capricious. On the contested question whether the APA authorizes federal courts to issue nationwide injunctions, law professor Samuel Bray condemns her shallow analysis and “imprudently intemperate” rhetoric.
In June 2020, the D.C. Circuit will reverse Jackson’s ruling. In her majority opinion, Judge Patricia Millett, joined by Judge Harry Edwards, holds that Congress did indeed commit to DHS’s “sole and unreviewable discretion”—that’s the statutory language—the judgment whether to expand expedited removal to the statutory limit. In a separate opinion, Judge Neomi Rao determines that Jackson made an earlier threshold error in exercising any jurisdiction over plaintiffs’ challenge.
2021—Federal district judge Jon S. Tigar holds (in Plata v. Newsom) that the state of California’s effort to implement covid safety measures in state prisons violates the Eighth Amendment rights of prisoners, and he instead mandates covid vaccines for all state employees working in the prisons.
The Ninth Circuit will block Tigar’s mandate from taking effect and in April 2022 will vacate his ruling. It’s a sign of how far afield Tigar is that the panel that rules unanimously in April will have two Obama appointees on it and will see fit to dispose of Tigar’s mandate in a brief unpublished opinion.