Mazie Hirono Highlights Her 'Stop Judge Shopping' Bill As Possible Remedy To Nationwide Injunctions

Forbes Breaking News

At a Senate Judiciary Committee hearing before the Congressional recess, Sen. Mazie Hirono (D-HI) spoke about universal injunctions.

Transcript

00:00Sure. This is a question for Professor Vladeck. Professor Bray noted in his testimony the concern

00:10about extreme foreign shopping, especially in single judge districts. So I think you're familiar

00:21with a bill that I had introduced, which I intend to introduce once again about stop judge shopping.

00:28Yeah, it was not motivated by a concern about nationwide injunctions, but here we are.

00:37I think it has relevance. And I'm wondering, Professor, do you think that parties would

00:42seek and receive fewer nationwide injunctions if they were not able to judge or foreign shop

00:49for favorable outcomes? That's happened in the Texas Medford-Pristone case.

00:54I think there's no question, Senator. I mean, I think the data such as it is shows that there

00:58was a higher success rate when parties sought nationwide relief during the Biden administration

01:03in single judge divisions than when they filed in courts that had random assignment to more than

01:08three judges. And so, you know, that's a small data set, and I don't want to overstate it. But yes,

01:12I think, I mean, there's almost no conceivable way in which it wouldn't be smaller.

01:16So that would be, in my view, it would be a fair, I suppose, way of addressing the concern over

01:25of nationwide injunctions.

01:27So, I mean, I would say, if I might, two things. The first is that I think distributing assignments

01:32would at least mitigate the allure of nationwide injunctions in cases in which the median judge

01:38might not issue it. I mean, Professor Bray referred before in the birthright citizenship case

01:43to his confidence that any judge would block this order. The issue is not those cases. The

01:48issue is cases where the identity of the judge might be dispositive. So that's piece one.

01:53Especially in the single judge districts.

01:57This is, again, for you, and perhaps Professor Bray. You know, I'm trying to understand the

02:03practical effect of Chair Grassley's proposed legislation wherein you limit the relief that

02:13a court can grant to only the parties before the court. So I would like to know how, in a

02:19case like the Memphis Bristol decision, how the relief granted would apply only to the parties

02:26before the court. So I mean, can I, I actually, so I think it's even more powerfully illustrated,

02:33Senator, in the birthright citizenship cases, because in a context in which you had, say,

02:38individual non-citizen parents, or even, you know, a group of non-citizen plaintiffs, say,

02:44in Northern California, seeking to block the birthright citizenship policy, an injunction that only ran to

02:51them would be of no benefit to non-citizen parents in Southern California, in Oregon, or anywhere else

02:57in the country. And so you would need litigation, you know, on a retail nationwide basis to ensure

03:03that the actual, that these parents could have, could have confidence that when their children are

03:07born in the United States, they're born citizens. So you're saying that multiple lawsuits must be

03:12filed to obtain the relief if we're going to go with what is in Senator Grassley's bill that the relief

03:20will only be granted to the parties before it. There are certain issues that, certain cases

03:27where it wouldn't make sense. Well, and so, and so, Senator, unless, unless, unless, and this goes back

03:34to, to the chairman's opening statement, unless you were in the same bill to reinvigorate nationwide

03:40class actions, unless you were to effectively trade nationwide injunctions for a reinvigorated

03:47nationwide class action where you'd be able to show that all non-citizen parents who are, you know,

03:53who have a childbearing age, right, are affected by this order. Professor Bray, do you want to weigh in?

03:59I would love to. Yes, I would love to. Thank you, Senator. So I think the Mifepristone case is a great

04:04example. You couldn't really have an injunction to protect the plaintiffs' interests there because the

04:10plaintiffs didn't have standing. But what the case shows is... Well, let's say that the plaintiffs did have

04:14standing. What, what, what the case shows is the lack of fit in so many of these cases with universal

04:20injunctions between tenuous, narrow standing claims, including DAPA, the original 2015 one,

04:27the tenuous, narrow standing claims and massive universal relief. And that's not the way... I'm

04:33saying that, let's say that the standing issue was overcome, and then you have a court that says

04:40what the FDA did did not comport with the APA. And can that court limit the, that, that holding just

04:50to the plaintiffs before him or her? Well, in that, in that sort of case, the court should adjust its

04:55remedy to whatever the injury is. So you'd have to have a real specific injury to then tailor the

05:01injunction to it. And in a case where you don't have one, you can't really have an injunction tailored to

05:07the remedy. I mean, tailored to the injury. So, so we'd have to hypothesize an injury and then

05:12hypothesize an injunction that matched it. Thank you. I realize my time is up, but my point is that

05:16I think there, there are some concerns about the approach that the chairman is taking in his bill.

05:22Thank you, Senator Hirono. Senator Hawley. Thank you very much, Madam Chair.

Category

Transcript

Recommended