Jamie Raskin
Representative for Maryland · Democratic · United States
“Meeting these deadlines at the time required the largest mobilization of the federal government since WWII and the largest civilian undertaking in the history of the U.S. government. As TSA Chief Counsel, Ms. Kerner was responsible for providing the legal and policy advice for this record level of mobilization.”
“Meeting these deadlines at the time required the largest mobilization of the federal government since WWII and the largest civilian undertaking in the history of the U.S. government. As TSA Chief Counsel, Ms. Kerner was responsible for providing the legal and policy advice for this record level of mobilization.”
“Congressional Record, Volume 171 Issue 72 (Wednesday, April 30, 2025) [Congressional Record Volume 171, Number 72 (Wednesday, April 30, 2025)] [Extensions of Remarks] [Pages E365-E366] From the Congressional Record Online through the Government Publishing Office [ www.gpo.gov ] HONORING THE SERVICE OF FRANCINE KERNER, CHIEF COUNSEL, TRANS…”
“Congressional Record, Volume 171 Issue 72 (Wednesday, April 30, 2025) [Congressional Record Volume 171, Number 72 (Wednesday, April 30, 2025)] [Extensions of Remarks] [Pages E365-E366] From the Congressional Record Online through the Government Publishing Office [ www.gpo.gov ] HONORING THE SERVICE OF FRANCINE KERNER, CHIEF COUNSEL, TRANS…”
“She later helped the Bureau of Alcohol, Tobacco, and Firearms overhaul its fair hiring, promotion and professional development programs. Ms. Kerner found her way into public service after earning her law degree at the New York University School of Law in 1974.”
“She later helped the Bureau of Alcohol, Tobacco, and Firearms overhaul its fair hiring, promotion and professional development programs. Ms. Kerner found her way into public service after earning her law degree at the New York University School of Law in 1974.”
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“On behalf of a grateful Nation and the residents of Maryland's beautiful Eighth District, I wish Francine Kerner and her family nothing but the best as they begin this new chapter in their lives. ____________________”
“Bar Association's Beatrice Rosenberg Award for Excellence in Government Service; the Burton Award for Public Service in the Government; and the TSA Federal Woman's Program Trailblazer Award in 2011, in recognition of her efforts to advance the career of women at TSA. Throughout her career, Ms. Kerner never lost sight of the importance of family. She was careful to foster a family-friendly environment in each office she led. Her devotion to her own family set a powerful example for the many employees that she supervised and mentored across her decades in federal service. I want to conclude by recognizing her husband Michael Klein, her children Elizabeth and Adam, her daughter- in-law Robin, and her grandchildren, Maxine, Louis and Sidney.”
“She later helped the Bureau of Alcohol, Tobacco, and Firearms overhaul its fair hiring, promotion and professional development programs. Ms. Kerner found her way into public service after earning her law degree at the New York University School of Law in 1974. While at NYU Law, she interned for the New York City Law Department and served with such distinction that her supervisor, Mary P. Bass, later asked her to work in the Carter Administration where Ms. Bass was serving as the first IG at the U.S. Department of Commerce. Ms. Kerner is the recipient of numerous awards earned throughout her career of service, including the Presidential Meritorious Rank Awards in 2001 and 2022; the American University Roger W. Jones Award in 2023; the D.C.”
“Meeting these deadlines at the time required the largest mobilization of the federal government since WWII and the largest civilian undertaking in the history of the U.S. government. As TSA Chief Counsel, Ms. Kerner was responsible for providing the legal and policy advice for this record level of mobilization. For the next 23 years, she served as a principal architect of TSA's mission- critical programs and operations, supported by the outstanding team of attorneys she recruited, guided, and whose careers in Federal Service she unstintingty advanced. Prior to being named TSA's Chief Counsel, Ms. Kerner's Federal career spanned two decades, beginning as Counsel to the Inspector General (IG) at the Commerce Department in 1979 before serving in several managerial positions at the Treasury.”
“For her, that was as Deputy Assistant General [[Page E366]] Counsel at the U.S. Department of the Treasury's Enforcement Division. She was in her office at Main Treasury when the terrorist attacks began. That fateful day changed the worId and changed Ms. Kerner's life. A few weeks later, Congress enacted the Aviation and Transportation Security Act and established TSA. Ms. Kerner was one of a small group of federal workers chosen to stand up the fledgling agency with a monumental task ahead of them. To secure U.S. passengers and the American people from the grave threat posed by airline hijackers, Congress mandated that TSA begin screening passengers and checked baggage at 450 commercial airports within just a few months.”
“Congressional Record, Volume 171 Issue 72 (Wednesday, April 30, 2025) [Congressional Record Volume 171, Number 72 (Wednesday, April 30, 2025)] [Extensions of Remarks] [Pages E365-E366] From the Congressional Record Online through the Government Publishing Office [ www.gpo.gov ] HONORING THE SERVICE OF FRANCINE KERNER, CHIEF COUNSEL, TRANSPORTATION SECURITY ADMINISTRATION ______ HON. JAMIE RASKIN of maryland in the house of representatives Wednesday, April 30, 2025 Mr. RASKIN. Mr. Speaker, I rise to pay tribute to Francine Kerner, who retired on February 28, as Chief Counsel of the Transportation Security Administration (TSA) after dedicating over 50 years of her career to public service. On September 11, 2001, Ms. Kerner woke up and went to work, just like any other day.”
“On behalf of a grateful Nation and the residents of Maryland's beautiful Eighth District, I wish Francine Kerner and her family nothing but the best as they begin this new chapter in their lives. ____________________”
“Bar Association's Beatrice Rosenberg Award for Excellence in Government Service; the Burton Award for Public Service in the Government; and the TSA Federal Woman's Program Trailblazer Award in 2011, in recognition of her efforts to advance the career of women at TSA. Throughout her career, Ms. Kerner never lost sight of the importance of family. She was careful to foster a family-friendly environment in each office she led. Her devotion to her own family set a powerful example for the many employees that she supervised and mentored across her decades in federal service. I want to conclude by recognizing her husband Michael Klein, her children Elizabeth and Adam, her daughter- in-law Robin, and her grandchildren, Maxine, Louis and Sidney.”
“She later helped the Bureau of Alcohol, Tobacco, and Firearms overhaul its fair hiring, promotion and professional development programs. Ms. Kerner found her way into public service after earning her law degree at the New York University School of Law in 1974. While at NYU Law, she interned for the New York City Law Department and served with such distinction that her supervisor, Mary P. Bass, later asked her to work in the Carter Administration where Ms. Bass was serving as the first IG at the U.S. Department of Commerce. Ms. Kerner is the recipient of numerous awards earned throughout her career of service, including the Presidential Meritorious Rank Awards in 2001 and 2022; the American University Roger W. Jones Award in 2023; the D.C.”
“Meeting these deadlines at the time required the largest mobilization of the federal government since WWII and the largest civilian undertaking in the history of the U.S. government. As TSA Chief Counsel, Ms. Kerner was responsible for providing the legal and policy advice for this record level of mobilization. For the next 23 years, she served as a principal architect of TSA's mission- critical programs and operations, supported by the outstanding team of attorneys she recruited, guided, and whose careers in Federal Service she unstintingty advanced. Prior to being named TSA's Chief Counsel, Ms. Kerner's Federal career spanned two decades, beginning as Counsel to the Inspector General (IG) at the Commerce Department in 1979 before serving in several managerial positions at the Treasury.”
“For her, that was as Deputy Assistant General [[Page E366]] Counsel at the U.S. Department of the Treasury's Enforcement Division. She was in her office at Main Treasury when the terrorist attacks began. That fateful day changed the worId and changed Ms. Kerner's life. A few weeks later, Congress enacted the Aviation and Transportation Security Act and established TSA. Ms. Kerner was one of a small group of federal workers chosen to stand up the fledgling agency with a monumental task ahead of them. To secure U.S. passengers and the American people from the grave threat posed by airline hijackers, Congress mandated that TSA begin screening passengers and checked baggage at 450 commercial airports within just a few months.”
“Congressional Record, Volume 171 Issue 72 (Wednesday, April 30, 2025) [Congressional Record Volume 171, Number 72 (Wednesday, April 30, 2025)] [Extensions of Remarks] [Pages E365-E366] From the Congressional Record Online through the Government Publishing Office [ www.gpo.gov ] HONORING THE SERVICE OF FRANCINE KERNER, CHIEF COUNSEL, TRANSPORTATION SECURITY ADMINISTRATION ______ HON. JAMIE RASKIN of maryland in the house of representatives Wednesday, April 30, 2025 Mr. RASKIN. Mr. Speaker, I rise to pay tribute to Francine Kerner, who retired on February 28, as Chief Counsel of the Transportation Security Administration (TSA) after dedicating over 50 years of her career to public service. On September 11, 2001, Ms. Kerner woke up and went to work, just like any other day.”
“There are 2 minutes remaining. {time} 2003 Mr. NEWHOUSE changed his vote from ``nay'' to ``yea.'' So the bill was passed. The result of the vote was announced as above recorded. A motion to reconsider was laid on the table. ____________________”
“Goodlander Gottheimer Gray Green, Al (TX) Harder (CA) Hayes Himes Horsford Houlahan Hoyer Hoyle (OR) Huffman Ivey Jackson (IL) Jacobs Jayapal Jeffries Johnson (GA) Johnson (TX) Kamlager-Dove Kaptur Keating Kelly (IL) Kennedy (NY) Khanna Krishnamoorthi Landsman Larsen (WA) Larson (CT) Latimer Lee (NV) Lee (PA) Leger Fernandez Levin Liccardo Lieu Lofgren Lynch Magaziner Mannion Matsui McBath McBride McClain Delaney McClellan McCollum McDonald Rivet McGarvey McGovern McIver Meeks Menendez Meng Mfume Min Moore (WI) Morelle Morrison Moskowitz Moulton Mrvan Mullin Nadler Neal Neguse Ocasio-Cortez Olszewski Omar Pallone Panetta Pappas Pelosi Perez Peters Pettersen Pingree Pocan Pou Pressley Quigley Ramirez Randall Raskin Riley (NY) Rivas Ross Ruiz Ryan Salinas Sanchez Scanlon Schakowsky Schneider Scholten Schrier Scott (VA) Scott, David Sewell Sherman Sherrill Simon Smith (WA) Sorensen Soto Stansbury Stanton Stevens Strickland Subramanyam Suozzi Swalwell Sykes Takano Thanedar Thompson (CA) Thompson (MS) Titus Tlaib Tokuda Tonko Torres (CA) Torres (NY) Trahan Tran Turner (OH) Underwood Vargas Vasquez Veasey Velazquez Vindman Wasserman Schultz Waters Watson Coleman Whitesides Williams (GA) Wilson (FL) NOT VOTING--1 Norcross Announcement by the Speaker Pro Tempore The SPEAKER pro tempore (during the vote).”
“98] YEAS--219 Aderholt Alford Allen Amodei (NV) Arrington Babin Bacon Baird Balderson Barr Barrett Baumgartner Bean (FL) Begich Bentz Bergman Bice Biggs (AZ) Biggs (SC) Bilirakis Boebert Bost Brecheen Bresnahan Buchanan Burchett Burlison Calvert Cammack Carey Carter (GA) Carter (TX) Ciscomani Cline Cloud Clyde Cole Collins Comer Crane Crank Crawford [[Page H1552]] Crenshaw Davidson De La Cruz DesJarlais Diaz-Balart Donalds Downing Dunn (FL) Edwards Ellzey Emmer Estes Evans (CO) Ezell Fallon Fedorchak Feenstra Fine Finstad Fischbach Fitzgerald Fitzpatrick Fleischmann Flood Fong Foxx Franklin, Scott Fry Fulcher Garbarino Gill (TX) Gimenez Goldman (TX) Gonzales, Tony Gooden Gosar Graves Green (TN) Greene (GA) Griffith Grothman Guest Guthrie Hageman Hamadeh (AZ) Haridopolos Harrigan Harris (MD) Harris (NC) Harshbarger Hern (OK) Higgins (LA) Hill (AR) Hinson Houchin Hudson Huizenga Hunt Hurd (CO) Issa Jack Jackson (TX) James Johnson (LA) Johnson (SD) Jordan Joyce (OH) Joyce (PA) Kean Kelly (MS) Kelly (PA) Kennedy (UT) Kiggans (VA) Kiley (CA) Kim Knott Kustoff LaHood LaLota LaMalfa Langworthy Latta Lawler Lee (FL) Letlow Loudermilk Lucas Luna Luttrell Mace Mackenzie Malliotakis Maloy Mann Massie Mast McCaul McClain McClintock McCormick McDowell McGuire Messmer Meuser Miller (IL) Miller (OH) Miller (WV) Miller-Meeks Mills Moolenaar Moore (AL) Moore (NC) Moore (UT) Moore (WV) Moran Murphy Nehls Newhouse Norman Nunn (IA) Obernolte Ogles Onder Owens Palmer Patronis Perry Pfluger Reschenthaler Rogers (AL) Rogers (KY) Rose Rouzer Roy Rulli Rutherford Salazar Scalise Schmidt Schweikert Scott, Austin Self Sessions Shreve Simpson Smith (MO) Smith (NE) Smith (NJ) Smucker Spartz Stauber Stefanik Steil Steube Strong Stutzman Taylor Tenney Thompson (PA) Tiffany Timmons Valadao Van Drew Van Duyne Van Orden Wagner Walberg Weber (TX) Webster (FL) Westerman Wied Williams (TX) Wilson (SC) Wittman Womack Yakym Zinke NAYS--213 Adams Aguilar Amo Ansari Auchincloss Balint Barragan Beatty Bell Bera Beyer Bishop Bonamici Boyle (PA) Brown Brownley Budzinski Bynum Carbajal Carson Carter (LA) Casar Case Casten Castor (FL) Castro (TX) Cherfilus-McCormick Chu Cisneros Clark (MA) Clarke (NY) Cleaver Clyburn Cohen Conaway Connolly Correa Costa Courtney Craig Crockett Crow Cuellar Davids (KS) Davis (IL) Davis (NC) Dean (PA) DeGette DeLauro DelBene Deluzio DeSaulnier Dexter Dingell Doggett Elfreth Escobar Espaillat Evans (PA) Fields Figures Fletcher Foster Foushee Frankel, Lois Friedman Frost Garamendi Garcia (CA) Garcia (IL) Garcia (TX) Gillen Golden (ME) Goldman (NY) Gomez Gonzalez, V.”
“Mr. Speaker, on that I demand the yeas and nays. The yeas and nays were ordered. This is a 5-minute vote. The vote was taken by electronic device, and there were--yeas 219, nays 213, not voting 1, as follows: [Roll No.”
“Mr. Speaker, listening to the debate, it occurs to me that Bonnie and Clyde and Butch Cassidy and the Sundance Kid should have just denounced traditional activism and moved to change the Federal rules of civil procedure: Always better to blame the judge than to take responsibility for your own unlawful actions. Mr. Speaker, I will close by quoting Thomas Jefferson who said during the time of the Alien and Sedition Acts: ``A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles.'' In the meantime, we are suffering the horrors and malignities of this period, but if the game runs against us sometimes as it will, we must have patience because it is a game where principles are at stake. Mr.”
“If they can sweep anybody off the street and say we are going to send you to a torturous prison in El Salvador without any kind of hearing at all, it can happen to citizens as well as noncitizens. Mr. Speaker, I reserve the balance of my time. The SPEAKER pro tempore (Mr. Harris of North Carolina). Members are reminded to refrain from engaging in personalities toward the President.”
“Secondly, there seems to be a myth on the other side that if a President campaigns on something, then it is constitutional and the courts can't strike it down. So if the President campaigns on running again for a third term, then it is okay. Where does it say that in the Constitution? That can't be right. We are all bound by the Constitution no matter what we say during the campaign. A person could run around saying, ``I am going to be king,'' or if President Trump said, ``I will be dictator on day one.'' No, you will not be dictator on day one under the Constitution of the United States. Why did the judge tell the administration to turn the planes around? Because of the two most beautiful words in the English language, ``due process.'' Because what they can do to noncitizens, they can do to citizens.”
“There is a beautiful portrait of Washington, the Trumbull portrait, that we have in the rotunda and it is a picture of George Washington surrendering his commission as the general of the Continental Forces, which Napoleon said made him the greatest man ever, that he could have stayed on as a dictator forever, and he gave up his power. He could have been President forever, but he gave up his power. When we compare that to Donald Trump who is saying he is going to run for an unconstitutional and, yes, an illegal third term, that would be an illegal third term for him to run again to try to take office, so that is why we have courts in order to cabin the potentially limitless ambitions of Presidents. That is why we don't have kings; we have Presidents here.”
“Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I will answer my good friend, the chairman of the subcommittee, about the remarks he just made. He is correct that the President, of course, like Members of Congress, must also interpret and enforce the Constitution. In fact, that is the core part of the President's job, to take care that the laws are faithfully executed, says Article II, not distorted or rewritten, but to take care that the laws are faithfully executed. That doesn't negate the fact that under Marbury v. Madison, it is emphatically the province and the duty of the Judicial Department to say what the law is in the event of an actual case or controversy. The gentleman invoked George Washington.”
“Mr. Speaker, the Supreme Court has already rejected at least two of the actions that Donald Trump has taken since he got in. One was firing the executive director of the Office of Special Counsel. He was reinstated. The other was reinstating a $2.1 billion aid grant that was essentially impounded and diverted by the administration. Mr. Speaker, I yield 1 minute to the very distinguished gentleman from Virginia (Mr. Subramanyam).”
“If we are talking about deciding the constitutionality of a law, obviously it is the judge under Marbury v. Madison. I know that the distinguished gentleman from the Committee on the Judiciary knows that the fact that Donald Trump beat Kamala Harris by 2 million votes is neither here, nor there. Joe Biden beat Donald Trump by 7 million votes, and they still went to court pretty much on a weekly basis to try to get Joe Biden's legislation and his programs struck down. The majority believed in judicial review then. We should understand that it is very convenient for Republicans to say, all of a sudden, that my colleagues on the other side of the aisle don't believe in judicial review just because they have the Presidency. Mr. Speaker, I yield 2 minutes to the distinguished gentlewoman from North Carolina (Ms. Ross).”
“Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, just to answer a couple of things raised by the gentleman from Ohio (Mr. Jordan), my friend. First of all, that is not what the Supreme Court said. The Supreme Court simply said that this was not a case that should be going through the Administrative Procedure Act under the Immigration and Nationality Act. It should be done through a habeas corpus in the district of confinement, in Texas. Mr. Speaker, in fact, the Supreme Court affirmed that there must be due process for people who were illegally taken out of this country and sent to El Salvador. Secondly, the gentleman gives us a false choice when he says: Who gets to decide? Is it the person who puts his name on the ballot and goes out and campaigns, or is it an unelected Federal district judge? Decide what?”
“Mr. Speaker, I thank the gentleman for his astute observations there and say that Judge Kacsmaryk was reversed several times by higher courts. We never came out and said, therefore, let's ban nationwide injunctions. We did say we should reform judge shopping and forum shopping. That is the real problem. Yet, it is not a problem if there is a nationwide crisis created by illegal action by an executive that a judge has the authority to counter that with an injunction and then it gets appealed up to the Supreme Court. Mr. Speaker, I reserve the balance of my time.”
“Mr. Speaker, nationwide injunctions are something that my friends across the aisle not only endorsed but took liberal advantage of in the last administration. Remember Judge Matt Kacsmaryk of the Northern District of Texas? They were lining up around the block to go forum shopping in his little district because he was the only judge to get cases against Biden there. Then Republicans praised the nationwide injunctions he issued. The gentleman who just spoke signed a letter in praise of a nationwide injunction that was offered by Judge [[Page H1489]] Kacsmaryk. If the gentleman wants to change his position, fine, but please explain to us why the position has changed since the gentleman was praising nationwide injunctions in the last administration. Mr. Speaker, I yield 2 minutes to the gentleman from Colorado (Mr. Neguse).”
“There will be a lawsuit on this, and what our colleagues are saying is that if there is a bipartisan lawsuit that goes to court which stops these tariffs that are crippling businesses and farmers and wiping out people's retirements across the country, and if they succeed in one district, say, in Minnesota or Wisconsin or New York, you have to go to every one of 94 different districts in the country to get the benefit of that. That is what they want to do. Mr. Speaker, I reserve the balance of my time. The SPEAKER pro tempore. Members are reminded to refrain from engaging in personalities toward the President.”
“Mr. Speaker, I yield myself such time as I may consume. Both Democrats and some Republicans have assailed the clearly unlawful nature of this trade war instituted by President Trump based on tariffs against the entire world except for Vladimir Putin in Russia, and Congress has the power under Article I of the Constitution to regulate commerce internationally. We have the power over tariffs. [[Page H1488]] The President purportedly is asserting powers under a statute which applies to emergencies in extraordinary and unusual situations. Then he said this has been going on for decade after decade. Well, then how could that be an emergency? How could that be extraordinary and unusual?”
“Mr. Speaker, the link to the entire document can be found here: https://harvardlawreview.org/wp-content/uploads/2020/01/920- 1009__Online.pdf . Mr. Speaker, I yield 2 minutes to the distinguished gentleman from Georgia (Mr. Johnson), the ranking member of the Subcommittee on Courts, Intellectual Property, Artificial Intelligence, and the Internet.”
“Part IV describes injunctions against enforcement of state law issued by lower federal courts from the 1910s through the 1930s and then similarly outlines their implications for the Article III analysis. Part V turns to federal agency action, focusing specifically on Perkins and two cases involving state and local laws that are important for understanding Perkins; this Part spans the 1939-1943 period.”
“Our government is not a monarchy, and our federal judges are not Westminster chancellors; in no small part, the one has followed from the other. The Article proceeds in six Parts. Part I maps how the current discourse concerning universal injunctions has gerrymandered the analysis of judicial power and has thereby cast undue doubt on the propriety of this remedy. Part II explores how the Supreme Court in the 1890s endorsed an expansive view of the powers of federal courts to control the rights of nonparties through injunctive decrees. Part III describes injunctions against enforcement of federal statutes issued by the Court itself in the 1910s and 1920s and examines their implications for the Article III analysis.”
“May courts decide disputes only for the parties before them, or may they declare the law for nonparties, too? This Article's contribution to that evergreen debate is to show how, in the period from 1890 to 1943, the law- declaration model animated and guided the actions of federal courts as they issued decrees on myriad questions of public law. Expanding the frame of our inquiry even by this much reveals that the injunction reaching beyond the plaintiffs-- and the law-declaration model of the judicial power that this remedy implies--is not some late-blooming efflorescence of post-Warren Court judicial hubris. Rather, it is a tool that developed in tandem with, and in support of, the regime of routinized judicial review of state and federal official action that we continue to live under today.”
“Such a straitened conception of the equitable power of Article III courts cannot be squared with either a century- plus of practice or with ``the implicit policies embodied in Article III'' itself. Nor, fortunately, is that result demanded by Grupo Mexicana de Desarrollo v. Alliance Bond Fund, Inc., for that decision rested not only on the meaning of equity in England in 1789, but also on how American federal courts treated that concept in decisions extending through the twentieth century. Measured by that yardstick, the universal injunction against federal law is constitutionally legitimate. At bottom, the current debate over the universal injunction is as much a debate over the proper role of the federal courts as it is a debate over the arcana of equitable remedies.”
“At the time of the Founding, [[Page H1486]] English officers were kept to heel not with injunctions issued by the Chancellor in equity, but instead with common law damages suits or ``prerogative'' writs (mandamus, quo warranto, and so on) issued by the King's Bench--a common law court. And American federal courts did not issue ``Young- type'' injunctions against enforcement suits brought by state and federal officers until well after the Founding. A strictly originalist approach to the judicial power in equity would therefore jettison not just the universal injunction-- it would equally undercut the propriety of an injunction that protected just a single plaintiff from enforcement of even an egregiously unconstitutional law by a government officer.”
“If a federal district court issue a universal injunction against enforcement of a state law in a suit by a single plaintiff, a federal district court must also have the power to issue such an injunction against enforcement of a federal law as an Article III matter. There is only one ``judicial Power,'' and that power includes the power to issue injunctions that protect those who are not plaintiffs. Finally, some critics of the universal injunction have invoked a strict form of originalism in support of their case against that remedy. But the logic of that argument would extend well beyond the universal injunction.”
“Equity.'' It does not allocate different types of equitable remedial power to courts at different levels of the federal judicial hierarchy, and it draws no line between state and federal government defendants. That singular judicial power must be uniformly interpreted, and its scope cannot sensibly be regarded as hinging on the surmounting of hurdles to class certification that were not created until 1966. If the Supreme Court can issue a universal injunction against enforcement of a federal law in a suit by a single plaintiff, then so can a federal district court as an Article III matter.”
“They have pressed Congress to institute such a rule by statute--and indeed, the 115th Congress lately considered doing just that, holding hearings on whether it should forbid what the bill at issue styled as ``orders purporting to restrain enforcement against non-parties'' in cases not certified as Rule 23 class actions. Justice Thomas, as noted, has suggested that Article III may forbid injunctions that reach beyond the plaintiffs. We must be clear about one thing: it would be a sharp departure from precedent and practice to treat Article III as requiring the equitable remedial powers of federal courts to be cabined in that manner. Article III confers a singular power upon all federal courts to decide ``Cases[ ] in . . .”
“Barnette, shortly after Perkins, the Court affirmed an injunction that reached beyond both the plaintiffs' children and the alleged plaintiff class to shield ``any other children having religious scruples'' from a state law requiring students to salute the American flag. This history has important implications for how we should understand Article III. Today, critics of the universal injunction contend that Article III courts should adhere--or, as they sometimes frame it, revert--to the rule that injunctions must be solely ``plaintiff-protective.'' They have urged the Advisory Committee on Federal Rules to create such a rule by amending the Federal Rules of Civil Procedures.”
“Lukens Steel Co., the Court held that the plaintiffs lacked standing and were thus not entitled to seek any kind of relief, the steel companies' suit, the Court held, ``contains no semblance of these elements which go to make up a litigable controversy as our law knows the concept.'' Crucially, Perkins left intact the propriety of injunctions reaching beyond the plaintiffs as remedies in cases brought by plaintiffs with standing, indeed, Perkins is bookended by decisions in which the Court continued to approve that practice. In Hague v. CIO, less than a year before Perkins, the Court affirmed an injunction that protected those who acted in sympathy with the plaintiffs from enforcement of a city law; in West Virginia State Board of Education v.”
“Society of Sisters--the Court affirmed a universal injunction barring the enforcement of Oregon's compulsory public-schooling law in a landmark precedent that remains good law to this day. Not long thereafter, the universal injunction was brought to bear upon federal agency action. In 1939, the D.C. Circuit issued a universal injunction against federal agency action in Lukens Steel Co. v. Perkins. That highly consequential decree altered the federal government's purchasing activities with respect to the iron and steel industries for a whole year in the run-up to America's entry into World War II. When the Supreme Court took up the case in Perkins v.”
“Moreover, at least as far back as 1916, three-judge federal courts issued injunctions against the enforcement of laws that reached beyond the plaintiffs in those suits. The laws thereby enjoined were state laws, not federal laws, but the injunctions possessed the characteristic that matters most to the Article III debate over the injunctive power: those injunctions gave sweeping protection to nonplaintiffs who would otherwise have been vulnerable to the law's enforcement. When the state defendants in those suits appealed directly to the Supreme Court--as procedural law at the time allowed them to do--the Court on several occasions affirmed the lower courts' injunctions, and sometimes did so in single-sentence, unanimous, per curiam decisions. In one important (though not unique) instance--Pierce v.”
“The universal injunction against federal law did not ``emerg[e] for the first time in the 1960s,'' as many critics of the universal injunction have claimed. The Court itself issued a universal injunction in 1913, in the months preceding its opinion in Lewis Publishing Co. v. Morgan, when it temporarily enjoined a federal statute from being enforced not just against the plaintiffs but also against ``other newspaper publishers.'' In the following decade, the Court issued two other preliminary injunctions that barred a federal law's enforcement beyond the plaintiffs within a single judicial district, and in one of those cases it specified that similarly broad final relief should issue.”
“A growing vein of scholarship concerning such injunctions has also developed. This Article demonstrates that the universal injunction is a tool with a more venerable lineage than heretofore recognized. Surveying cases involving both state and federal law and drawing on decisions by courts at all three levels of the federal judicial hierarchy, this Article shows that Article III courts have issued injunctions that extend beyond just the plaintiff for well over a century. Building on this lost history, this Article argues that the Article III objection to the universal injunction should be retired and that legislative efforts to outright strip the federal courts of the substantive power to grant such injunctions should halt. Let us begin with the history.”
“In December 2018, the Solicitor General's Office called for the Court to ``arrest'' this ``disturbing but accelerating trend,'' which it cast as a ``rapidly expanding threat to the respect that each coordinate Branch of our Nation's government owes the others.'' In guidelines to Department of Justice civil litigators, former Attorney General Jeff Sessions referred to such injunctions as ``abuses of judicial power,'' a ``threat[ ]'' to ``the rule of law,'' a ``danger to our constitutional order,'' and a ``kind of judicial activism [that] did not happen a single time in our first 175 years as a nation.'' Several states--including states that earlier sought and won such injunctions--now contend that ``universal injunctions contradict the rest of Anglo-American jurisprudence.'' The Trump White House, in its characteristically measured tones, has hinted that the practice is perhaps not beyond criticism.”
“The federal courts' power to issue such injunctions--which are variously called ``national,'' ``nationwide,'' ``universal,'' and even ``cosmic''--is now under fire. In Trump v. Hawaii, Justice Thomas concurred separately to urge the Court to take up the question of the legality of such injunctions, suggesting that they are a modern innovation and that they might fall outside the judicial power of Article III courts. In 2018, the House Judiciary Committee of the 115th Congress released a markup of the Injunctive Authority Clarification Act, which would curtail the authority of federal courts to issue such injunctions.”
“Surely, they need not be told, how slow every good system of laws must be in consolidating; and how easily the rashness of an hour may destroy, what ages have scarcely cemented in a solid form. --Joseph Story, Justice of the U.S. Supreme Court (1812- 1845) introduction The Trump Administration and the Obama Administration do not seem to have much in common. But they have had one shared foe: the ``universal'' injunction. Across both administrations, federal district courts have issued a slew of injunctions blocking the executive branch from enforcing federal laws, regulations, or policies ``not only against the plaintiff, but also against anyone,'' even in cases not certified as class actions.”
“If Article III allows such injunctions as to state laws, it a fortiori allows such injunctions as to federal laws. Mapping these and other pieces of the lost history of the universal injunction, this Article demonstrates that the Article III objection to the universal injunction should be retired and that the unfolding efforts to outright strip the federal courts of the tool of the universal injunction--whether by statutory fiat or by a judicial redefinition of Article III--should halt. But I would speak to the consciences of honorable men, and ask, how they can venture . . . to recommend changes, which may cut deep into the quick of remedial justice . . . .”
“Equity.'' This Article rebuts the proposition that the universal injunction is a recent invention and that it violates Article III or the traditional limits of equity as practiced in the federal courts. As far back as 1913, the Supreme Court itself enjoined federal officers from enforcing a federal statute not just against the plaintiff, but against anyone, until the Court had decided the case. If the Supreme Court can issue a universal injunction against enforcement of a federal law, then--as an Article III matter--so can a lower federal court. Moreover, lower federal courts have been issuing injunctions that reach beyond the plaintiffs as to state laws in cases that date back more than a century, and the Supreme Court has repeatedly approved of these injunctions.”
“Mr. Speaker, I include in the Record ``The Lost History of the `Universal' Injunction,'' a law review article by Mila Sohoni refuting what was just stated by the gentleman. The universal injunction, the nationwide injunction, goes back at least to 1913 and has been used repeatedly over the last century. [From the Harvard Law Review] The Lost History of the ``Universal'' Injunction (Mila Sohoni) The issuance of injunctions that reach beyond just the plaintiffs has recently become the subject of a mounting wave of censorious commentary, including by members of Congress, a Supreme Court Justice, the Solicitor General, the Attorney General, and the President. Critics of these ``universal'' injunctions have claimed that such injunctions are a recent invention and that they exceed the power conferred by Article III to decide ``Cases[ ] in . . .”
“So, for example, if the President establishes a church or bans newspapers or imposes martial law, then each citizen in America would have to bring his or her own case because the courts would not be able to rule to strike down unconstitutional actions generally. That is patently absurd, and we are going to be able to explain how this legislation is a massive distraction [[Page H1484]] from the issues that are really facing America. Mr. Speaker, I reserve the balance of my time. The SPEAKER pro tempore (Mr. Guest). Members are reminded to refrain from engaging in personalities toward the President.”