Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—September 27

(Michał Chodyra/Getty Images)

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.

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