One issue that has not been conclusively decided by the courts is the constitutionality of DACA protections. For example, the Supreme Court has not ruled on whether or not DACA is constitution. Since President Obama created DACA through regulations that complied with the Administrative Procedure Act. However, the Trump administration might not have complied with this act and as a result a preliminary injunction was issued against the repeal of DACA. However, other state attorney generals, such as the Attorney General of Texas have argued that DACA is itself unconstitutional. The Attorney General of Texas filed this lawsuit in a different district court from the lawsuit seeking to keep DACA.

Suppose both lawsuits successfully obtained a preliminary injunction in their favor. One injunction requires the United States Federal Government to continue accepting applications for DACA relief (and if the applicant complies with procedures offer them relief from enforcement). While the other injunction requires the Federal Government to stop offering DACA protections. Suppose that both District Courts require that their orders have nationwide effect and that a stay of the injunction is not issued immediately or by the circuit court with appellate jurisdiction (and maybe the courts are in separate circuits). With the current Supreme Court standing at 8 justices, it is plausible that the justices could be split 4-4 on the issue of granting a stay.

What is the legal position the Federal Government must take (assuming the Federal Government wants to comply with orders of the judicial branch as much as possible and does not assert its authority as a separate branch of the Federal Government)? Would the government be required to continue DACA or must it stop the program?

Currently this has not occurred, but I imagine it is possible for this situation to occur at some later point in time or if by chance some things change in the future.

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    I don't think the situation is even plausible without broad swathes of the judiciary being willfully dumb and abandoning good sense and professionalism to an almost comical degree. And Texas has been initially ruled against, being told they can't legally bring a case (even if their alleged injuries are meritorious), though they have the option to appeal still on the table I think. Sep 4, 2018 at 6:14

1 Answer 1


Resolving Conflicting Injunctions

This happens from time to time, frequently in cases involving child custody with dueling cases in different states, at least until recent legislative changes (the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act), which set forth clear rules calculated to leave only one court with jurisdiction to enter orders in almost all cases. The very first case I worked on as a student in a law school clinical program involved this kind of jurisdictional standoff.

There is no fool proof way to prevent this, although parties will often forcefully ask the court not to have contradictory injunctions imposed upon them, and courts will often take these arguments seriously. And, the parties will usually parse the language of each order to determine how both can be possibly be complied with at once.

Also, impossibility is a defense to being held in contempt of court for violating an injunction, and this tends to favor honoring the first entered of contradictory injunctions since the first is not impossible to comply with but complying with subsequent orders may be impossible.

When push comes to shove and the appeals in each case don't change the result, usually the case keeps going up the appellate court ladder on an emergency basis in each contradictory case until it the deadlock is resolved, or until a court with jurisdiction over all courts involved intervenes.

But, as you note, there is no definitive way to prevent the highest court in the land from having a deadlock (which can happen even when there are an odd number of judges if a judge recuses).

In many state supreme courts, and in appellate courts outside the U.S., deadlock in a tie breaker court is often avoiding by having a process to appoint lower court judges a substitute judges in a higher court when there is a potential for deadlock in that court. But, the U.S. Supreme Court has no such process.

The Ongoing Policy Debate

There is on ongoing debate in federal public law practice (i.e. in cases in which the government is a party) over whether national injunctions of the type that have been issued in the DACA case and the Muslim ban cases in the current administration are proper, or not on jurisdictional grounds (but, the propriety of the injunction is generally not a defense to being held in contempt of court for violating it). These injunctions bind the United States government, which is a single entity over which the court has jurisdiction, but the dispute is over whether these injunctions should be allowed to benefit non-parties who are similarly situated to those before the court (the prevailing rule at this time), or whether the parties seeking an injunction against the United States government only have standing to obtain relief for themselves personally, in the absence of a class action under Federal Rule of Civil Procedure 23, which has procedures calculated to protect the interests of members of a class who are not personally before the court.

The "conservative" position is that "national" injunctions against the United States should not be allowed outside of class actions, which would reduce the potential risk of conflicting orders, but would allow the United States government to proceed with conduct that had already been judicially determined elsewhere in a case against the same defendant to be unacceptable and illegal conduct. The status quo of allowing "national" injunctions is also important to allow a court to have the power to grant relief to individuals whose current location is not known perhaps, for example, because the United States government has concealed this information.

For example, a national injunction allows a district court to grant relief to a parent whose child has been removed from the parent improperly to an unknown location in the juvenile immigration detention system for which the U.S. government lost track of 1,400+ juveniles due to poor record keeping.

  • I've also heard it claimed--by Justice Thomas, I think--that overuse of national injunctions also accelerates the process by which an issue makes its way to the Supreme Court, forcing it to rule and intervene before the issue has been fully and properly considered in the lower courts. Sep 6, 2018 at 5:10
  • @zibadawatimmy: The supreme court could respond by casting down the injunction on procedural grounds but not the ruling.
    – Joshua
    Apr 22, 2019 at 21:59

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