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In relation to Trump's executive orders, both the first version and the new watered down one, it seems that two (or more) separate judges were asked to rule on its constitutionality. How can this be possible? Here are some specific questions:

  • Why didn't the judge in Maryland just say that the question had already been handled by another judge at the same level in Hawaii?
  • What happens if they make contradictory rulings?
  • If Trump wants to appeal, does he have to appeal each ruling separately?
  • Could, in theory, 50 separate federal judges have been asked to rule on exactly the same question at the same time?
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How can this be possible?

What rules make this possible?

Each judge independently evaluates whether the case was brought by someone who suffered an actual injury and whether the defendant is properly sued in federal court. Any given person who is injured can sue in only one federal court at a time. The general rule in federal court is that venue is proper in any court that has jurisdiction over the parties and subject-matter jurisdiction.

Federal trial courts, collectively, always have subject-matter jurisdiction over lawsuits against the United States (subject to extremely rare exceptions involving probate claims, lawsuits against the United States brought by a U.S. state or a diplomat, and a couple of other minor and obscure exceptions).

All federal trial courts have jurisdiction over the United States government, since it operates in every federal judicial district.

If the United States government causes people in multiple places to have an actual injury due to the same action, judges in each of those places where someone was injured has jurisdiction over that case in the absence of specific federal statutes limiting the places where suits can be filed.

Most claims against the United States government for money damages must be brought in the United States Court of Claims. Most claims for injunctive relief can be brought in any federal trial court (other than the Court of Claims which has jurisdiction only over certain specified money claims).

Another subtle and technical point that is debated mostly by civil procedure professors is that the practice of allowing a judge determining the constitutionality of a rule or law through a nationwide injunction is well entrenched in precedent, even though the private law principles that drive our civil procedure system didn't really contemplate the idea of one injured party's dispute with the government giving rise to the injunction of national applicability.

The national injunction concept developed precisely because otherwise there would have to be a ruling for each affected injured party which is cumbersome and impractical and likely to lead to conflicting rulings that can be reconciled. A national injunction eliminates the need for anyone to file a new lawsuit to address the issue because the ones that were already filed resolve the dispute. So, instead of having hundreds or thousands of lawsuits about a single federal policy, it would be rare to have more than half a dozen.

Functionally, individual lawsuits seeking injunctions of federal policies end up operating like class action lawsuits, because that is how the logical of federal government implementation of a court ruling works most naturally. But, the class action lawsuit procedures of Federal Rule of Civil Procedure 23 are ill suited to this kind of public law lawsuit.

There are actually some areas of law (e.g. tax law and private sector labor law) where circuit splits on questions of federal law routinely persist on many issues for many years or even decades, until the U.S. Supreme Court resolve the issue, or the United States government concedes an issue on a national level after multiple defeats in different court of appeals circuits.

Why did the rules get written this way?

At a deeper, more philosophical and historical level, this happened because the people who wrote the rules didn't know what they were doing.

The people who wrote the United States Constitution, the judges who established the early precedents that established the relevant rules of civil procedure, and the legislators who wrote the early laws establishing the federal court system (groups of people that overlapped heavily in the formative years of the Republic), did not have a well developed sense of the issues and problems that could arise from the rules about suing the federal government that they wrote.

Why were they so clueless?

Because they were familiar only with the English legal system. But, (1) the English legal system that was in place until the United States Constitution was adopted did not have the principle of judicial review of statutes for constitutionality, (2) the English legal system did not have a two tiered federal court system, (3) the English legal system did not have a separation of powers between the executive, legislative and judicial branches of government designed to create a system of checks and balances, and (4) the English legal system did not have a well developed distinction between private law (i.e. lawsuits between non-governmental parties) and public law (i.e. suits related to the operation of governmental entities).

The English legal system was divided between "courts of law" and "courts of equity", each of which handled some private law cases and some public law cases, rather than between private law courts and public law courts, like most of the rest of the world. And, soon, the U.S. legal system further muddled public law and private law by merging its law and equity courts.

So, instead, the people who wrote the rules merely adapted legal doctrines from private law in a unitary state that did not have judicial review, by analogy, as best they could to a public law setting, resulting in many less than optimal choices.

It also doesn't help that the rules governing judicial review of statutes and other governmental actions for their legality and constitutionality are rarely bright-line rules. Instead, they are broad standards upon which reasonable, intelligent judges can have differences of opinion, so conflicting rulings can easily arise when different judges try to interpret these constitutional rules.

For a long time this didn't matter much.

Early on there were far fewer U.S. States to have judges in conflict with each other. Until the Civil War, the federal government was extremely small, and didn't do very much, and so the federal court system was also small.

Intermediate appellate courts weren't established until around 1890 in the federal system, before which all appeals from federal trial courts went straight to the U.S. Supreme Court. Case loads were also kept down because, before 1890, there was also no right to a direct appeal in most federal criminal cases (the right to an appeal is still not a constitutional right in criminal cases, it is only a statutory right).

The federal government got a bit bigger in the early 1900s, but didn't approach its existing scale and scope of authority until the New Deal in the 1930s, long after rules devised for a very different court system had been cemented in place by precedents and institutional structures that were hard to displace at that point.

Many countries with a federal system (i.e. central and state/province governments), like Canada, Germany and Australia, have far less overlap in jurisdiction between federal and state courts, and have far smaller federal court systems in which there are fewer federal courts that can end up in disputes with each other.

These countries also tend to have more rules specifying which court has jurisdiction over particular kinds of disputes, so there is less room for forum shopping. Most countries not descended from English law reserve the power of judicial review to a single Constitutional Court, rather than to all judges in all courts which is the practice in U.S. law. In fact, many countries not descended from English law have an entirely different court system to handle public law cases than it does to handle private law cases. For example, in France, public law disputes are handled by an agency known as the "Council of State", which is widely viewed as the best public law court system in the world.

One of the reasons that government is viewed as so much less efficient and effective than the private sector in the United States by many people in the political world is because the organization of the bureaucracy and public law system in the United States are so inferior to those institutions in countries where government plays a larger role relative to the private sector in the economy.

Why didn't the judge in Maryland just say that the question had already been handled by another judge at the same level in Hawaii?

A court decision does not bar another court from addressing the same legal issue unless:

  1. The court that addressed the same issue is an appellate court to which the forum court's decision can be appealed, or

This can't happen until cases have been around long enough to be appealed, and the applicability of an appellate precedent is often a disputed issue.

  1. The other court doesn't have jurisdiction to decide the claim, or

There are surprisingly many cases where almost every U.S. District Court will have jurisdiction, including most cases involving broad federal policies, unless statutes provide that a particular court has exclusive jurisdiction (e.g. many federal regulations may only be challenged, due to a statutory jurisdiction limitation, in the United States District Court for the District of Columbia). On the other hand, doctrines like the necessity of an actual case or controversy, mootness and ripeness, can have jurisdictional effects.

  1. The initial decision was made by a state court and the federal court case is in the nature of an appeal of that ruling (this is called the "Rooker-Feldman doctrine"), or

The Rooker-Feldman doctrine doesn't apply if both suits are commenced in federal courts.

  1. The doctrines of res judicata ("claim preclusion") or collateral estoppel ("issue preclusion") apply. Collateral estoppel applies when the parties to both cases are the same (or related by privity or common interest), the identical issue was litigated on the merits, there was a full and fair opportunity to litigate the issue, there is a final order on the issue. Res judicata bars future litigation of issues that were or could have been litigated between the identical parties in a prior case, following litigation of the prior case on the merits with a full and fair opportunity to do so, resulting in a final order.

Collateral estoppel and res judicata usually won't apply in these cases because the plaintiffs are different and because the rulings aren't final in the early stages of the case, they are merely temporary restraining orders or preliminary injunctions.

Even when one court is not bound by the rulings of another court, however, it isn't unusual for one court to consider another court's ruling to be persuasive guidance in how the second court decides the issue even though the other court's decision isn't binding. The better written the first court's opinion, the more weight it is given by other judges.

There are also circumstances when a judge has a discretionary option to decline to hear a case, even when, in theory, the judge ought to have authority to decide the case under doctrines including but not limited to forum non conveniens which is a discretionary power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case. This dismissal does not prevent a plaintiff from refiling his or her case in the more appropriate forum.

What happens if they make contradictory rulings?

Usually, one judge or another will stay the effectiveness of his or her ruling if the rulings are truly contradictory. If they don't, appellate courts governing either judge can stay the ruling. If the appellate courts don't resolve the deadlock, the U.S. Supreme Court can intervene (the justice assigned to the Circuit can make a temporary order personally, or can refer the dispute to the full court).

Historically, the most common scenario where this kind of contradictory ruling comes up have been child custody cases where trial courts in different states have reached contradictory conclusions, to which state legislators and Congress responded by establishing clear, bright line jurisdiction rules that usually prevented conflicts like this before they had to be resolved by the U.S. Supreme Court.

Another way that conflicting results can be handled is for the case to be referred to a multi-district litigation panel under special federal rules governing cases involving the same facts that arise in multiple districts.

Usually, as a practical matter, multi-district cases get assigned to the court where a plaintiff was first to file, and usually subsequent courts defer to earlier decisions (at least on a temporary basis), but neither of those principles are hard and fast rules.

If Trump wants to appeal, does he have to appeal each ruling separately?

Yes.

Of course, these appeals are handled by the Justice Department with the assistance of attorneys attached to other federal agencies.

The executive branch of federal government employs roughly 32,000 lawyers (excluding lawyers in the legislative or judicial branches of the federal government) which is roughly five times as many lawyers as the largest private law firms in the world (the largest private law firm in the world has 6,538 lawyers, the next biggest has 6,045 lawyers, the third biggest has 3,756,the fourth biggest has 3,372, and the fifth biggest has 2,562 lawyers), and significantly more than the twelve largest law firms in the world combined. So, Trump has effectively unlimited manpower to file appeals of individual rulings.

It is a fairly daunting managerial task, however, for the Attorney-General and the White House office to keep all of the lawyers involved on message and coordinated. This is particularly the case now, after Trump has fired most of the incumbent U.S. attorneys for particular federal districts, and many of the senior lawyers in the Justice Department and State Department, without having many permanent, loyal replacements in place.

Could, in theory, 50 separate federal judges have been asked to rule on exactly the same question at the same time?

Yes.

Indeed, there were probably some cases that you didn't hear about in this particular controversy where someone filed suit in a federal district court, the case was then assigned to a judge who was unlikely to be favorable to the cause of the plaintiff, and the case was then voluntarily dismissed by the plaintiff without having process served on any defendant and without proceeding further (which a plaintiff has a right to do at that very early point in the litigation).

In this kind of case, because the plaintiff can count on multiple different people challenging the law (and lawyers opposed to the law, especially if they also litigated an earlier version of the law are in touch with each other, often communicate with each other and attempt to reinforce their mutual efforts), a plaintiff who voluntarily dismisses a lawsuit in a very early stage of the case isn't sacrificing any rights in the way that a plaintiff in an ordinary lawsuit would.

  • It looks like the Seattle federal judge did refuse to hear the case because of the previous rulings in Hawaii and Maryland. – Lembik Mar 18 '17 at 6:32
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    @Lembik I can see how that might be possible under the forum non conveniens doctrine. Needless to say, this is a complicated area of law, with lots of doctrines and rules that seem to work at cross-purposes at times. It is basically a kludge rather than a system intelligently designed by one person at one time in a systematic manner. – ohwilleke Mar 18 '17 at 6:38
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A district court decision in one federal district does not bind a similar case in another district, so the matter had not been "previously handled". Since there is a real question of law, the Maryland judge has to handle the case and can't just dismiss it capriciously. Probably, the legal bases of the two cases are somewhat different, so while it looks superficially like the questions are the same, that's probably only true in the nightly-news summary sense. (It is possible that the legal issues raised in the two cases are actually identical: it may take a while to find out).

There can be contradictions (dunno how often that happens, but it's not at all rare). Presently, the effect is that there is a preliminary injunction against the order. At this point, the administration can appeal to the respective appeals courts (has officially said it will), and then we get to see how the order has changed (w.r.t. previous unconstitutional elements). If the 4th and 9th disagree, things could get interesting. If they agree, the administration can appeal to SCOTUS, and if 5 of 8 members agree on something, that becomes the last word on the matter. I conjecture that a pro-administration ruling is unlikely, and the best outcome from the administration's perspective would be a 4-4 tie, in which case the district court rulings would be unchanged.

Theoretically there is no limit on the number of suits that could be filed simultaneously, though I suspect that there would be multiple suits in the Western District of Washington, but there could be one in the Western District of Washington, or another state in the 9th district.

  • Thank you. Where the district court judge is making rulings that hold nationally this seems very confusing and inefficient. Does there need to be some legal difference in the cases? You almost suggest this but I couldn't tell if you meant it. – Lembik Mar 17 '17 at 22:10
  • No, rather I'm saying the Judge A would not likely dismiss an injunction request because he thought the legal issues had already been raised elsewhere. He would have to study the arguments from both sides in Hawaii to know that. It's a thing that a judge could technically say, but he would be overturned, and he would know that. – user6726 Mar 17 '17 at 22:20
  • Ok. Does it make sense to you to have dozens, say, of judges at the same level examining the same question over and over again? This seems like a massive waste of resources. – Lembik Mar 17 '17 at 22:24
  • It would not be my favorite way of spending money. I just don't see any way to objectively convert the intuition "we've been there already" to a rule where a complaint alleging unconstitutionality is summarily dismissed without serious judicial review. After all, there cannot be summary judgment in favor of the complainant where the government isn't allowed to argue its case. – user6726 Mar 17 '17 at 23:59
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    @Lembik user6726 is right. This isn't a system that anyone would have developed from scratch if they really understood how it would play out, but the current system, developed on a piecemeal basis, is less wasteful of resources than you might expect and allows for the development of a factual record about the circumstances and the consideration of a wider range of legal issues before the question is finally resolved than countries with more efficient legal systems might. Our system sacrifices efficiency in the interest of allowing more people more room to air their concerns. – ohwilleke Mar 18 '17 at 7:02

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