Monday, September 17, 2012

SDNY Indefinite Detention Decision Misunderstands Implications of Facial Invalidation

By Mike Dorf

Last week, in Hedges v. Obama, federal district judge Katherine Forrest permanently enjoined the enforcement of the federal statutory provision that authorizes indefinite detention of U.S. citizens, having found the law unconstitutional on its face.  The government has sought reversal on an expedited basis.  The case presents a number of interesting questions about standing, mootness, free speech, the overbreadth doctrine, and vagueness under the Due Process Clause of the Fifth Amendment.  But here I want to focus on the remedy Judge Forrest ordered: She enjoined the government from enforcing the statutory provision against anybody, not just against the eight plaintiffs in the case.

Wait, you're thinking: "Isn't that the point of invalidating a law on its face--that it cannot be enforced against anyone?"  Apparently that's what Judge Forrest thought too.  But if so, she was wrong.

A ruling by a federal court that a law is unconstitutional "on its face" is one way of finding that the plaintiffs may not be subject to that law, but it is not authorization for issuing rulings applicable to persons who are not parties.  Such persons can only take advantage of such a ruling by the ordinary means by which judicial decisions have force: (1) The ruling may be a precedent to be followed in other cases; or (2) The ruling may have issue-preclusive effect (under a doctrine formerly called collateral estoppel).  Neither approach works here.

A ruling of a single federal district judge has no binding precedential effect.  It may be cited by litigants as persuasive precedent in subsequent cases involving other parties, but no judge must follow it in the way that a district court must follow the precedents of the appeals court in the circuit that encompasses the district court or that district courts and appeals courts must follow Supreme Court precedent.  Indeed, a district judge's ruling in one case is not even binding as a matter of precedent on the very same judge in a subsequent case involving different parties (although a district judge would look rather foolish if she failed to follow her own prior decisions, absent some good reason for a change of heart).

What about preclusion?  Couldn't litigants in subsequent cases use the facial invalidation in the earlier case to preclude the government from re-litigating the law's validity?  The short answer is no.  The modern law of issue preclusion sometimes permits non-mutual issue preclusion--that is, it sometimes permits persons who were not party to an earlier case to use the result of that case to estop relitigation by the losing party in the earlier case--but non-mutual issue preclusion is not permitted against the government.  The reason is that the government is involved in so much litigation, that it would not be fair or sensible to make the first case that happens to come to judgment decisive of all future cases.

So why did Judge Forrest enjoin the challenged provision's application to everybody in the world?  I think she confused the stated rationale for the First Amendment overbreadth doctrine with its remedial implications.  Under a general rule that has been much criticized (including by me), courts say that they do not generally consider the effect of a law on third parties in deciding whether the law is valid as applied to the parties before the Court.  There is a widely-acknowledged exception, however, for laws burdening free speech.  Under the overbreadth doctrine, a party whose own conduct is not privileged by the First Amendment may nonetheless invoke the First Amendment to shield himself from prosecution if the law being applied to him also reaches the protected speech of third parties not before the Court.  The idea behind the overbreadth doctrine is that overbroad laws have a "chilling effect" on third parties.

In an earlier opinion in the Hedges case, Judge Forrest cited a couple of district court decisions that she characterizes as having issued injunctive relief going beyond the parties to an overbreadth case.  But she cites no Supreme Court opinions that make that move, and she offers not-especially-persuasive grounds for distinguishing language in Supreme Court cases that states that injunctive relief beyond the parties is unavailable.

Having criticized Judge Forrest for misunderstanding the law, I should say in defense of her position that it has a certain logic to it.  If the point of permitting overbreadth challenges is to protect the rights and interests of third parties not before the court, then shouldn't those third parties be able to benefit from the ruling?  And given what I have just said about the limited impact of a district court ruling, isn't the only way to do that by issuing an injunction that goes beyond the parties to the case?

The short answer is no.  For one thing, if Judge Forrest's decision is upheld on appeal to the Second Circuit, then it will be binding throughout the Second Circuit as a matter of precedent, and if it is upheld on certiorari by the Supreme Court, then it will be binding everywhere for the benefit of everyone who might otherwise be subject to the law.  The fact that a single district court's judgment about a law's facial validity is not binding beyond the parties to the case makes considerable sense when one compares constitutional litigation in the U.S. with constitutional litigation in countries that do permit laws to be challenged in so-called "abstract" cases.  In those other systems, typically the power to invalidate a law and wipe it off the books is reserved to the constitutional court, rather than lodged in trial courts.

Moreover, even at the district court level, a ruling of facial invalidity can be given wide scope if the case is litigated as a plaintiff class action.  If the plaintiffs had sought and received class certification, then the government could have been enjoined from enforcing the law against everyone within the class.  The problem, however, is that the Hedges case was not brought as a class action.  Further, if it had been so brought, it is highly unlikely that the case could have been properly certified as covering everyone potentially subject to the law.  Perhaps the plaintiffs might have properly been certified as representing journalists and scholars, but given the wide variety of contexts in which the challenged law could apply, it is doubtful that the plaintiffs could have satisfied the criteria set forth in Federal Rule of Civil Procedure 23 for representing a class of everyone who might be subject to the law.

Hence, even if the appeals court affirms the district court ruling on the merits, I think it highly unlikely that the broad scope of the remedy will be upheld on appeal.  In the meantime, is the government bound by the injunction?  Yes.  Sure, Judge Forrest misunderstood the meaning of a facial challenge, and was therefore not legally entitled to enjoin the law's application to non-parties, but whenever a party appeals an injunction, the party argues that the judge made a mistake.

As the Supreme Court held in Walker v. Birmingham, a party who believes that a judge should not have enjoined his conduct must still comply with the injunction, pending vacation of the injunction on appeal--or else face contempt charges.  The Walker rule has been applied to injunctions against government officials as well as to injunctions against private parties and thus, even though Judge Forrest shouldn't have enjoined the law's application to non-parties, unless and until her decision is overruled, such applications are indeed forbidden.