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Federal court permanently blocks Trump “sanctuary cities” order

Good.

A federal judge has permanently blocked President Trump’s efforts to bar cities that limit cooperation with U.S. immigration forces from receiving funding, the most decisive blow yet to the White House’s efforts to crack down on so-called sanctuary cities.

In a ruling issued Monday, U.S. District Court Judge William Orrick ruled Trump’s January executive order seeking to cut off sanctuary cities from federal funding unconstitutional. The same judge put a hold on the executive order in April.

“The Constitution vests the spending powers in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds,” Orrick wrote in the latest decision. “Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves.”

Orrick called Trump’s move “unconstitutional on its face.”

See here for the background. This is not directly related to the SB4 litigation – among other things, this lawsuit didn’t originate in Texas – but it is a mark against the attempt to force cities to enforce immigration law. It’s also good news on its own. Let’s hope it stands up on appeal. The Washington Post has more.

Ogg joins with other DAs in criticizing new Justice Department sentencing guidelines

As well she should.

Kim Ogg

Harris County District Attorney Kim Ogg on Friday joined 30 other sitting and former district attorneys in a letter protesting U.S. Attorney General Jeff Sessions’ recent push for harsher sentences in America’s federal courts.

“This is a return to a failed policy of a generation ago,” Ogg, a Democrat, said of the directive. “It did not make the public safer then and it will not make the public safer now.”

A week ago, Sessions ordered that federal prosecutors should bring the toughest charges possible against most suspects, a move seen as a reversal of Obama-era policies that will send more people to prison and for much longer terms.

Prosecutors across the country, including Ogg, criticized a return to failed drug-war policies that would likely unfairly affect minorities and fill prisons with nonviolent offenders.

The open letter was orchestrated by Fair and Just Prosecution, a group that works with prosecutors around the nation.

Miriam Krinsky, executive director for the group, said in a news release that the letter reflects a trend among a “new wave of prosecutors nationwide who are rejecting excessively punitive policies in favor of data-driven and sensible approaches to improve public safety.”

You can see a copy of the letter here. I can’t find a website or Facebook page for “Fair and Just Prosecution”, so this is about all I know. Though the Sessions directive doesn’t affect local prosecutors, the Justice Department does set a tone, and it’s a bad one in this case. Pushing back is the right thing to do, and I’m glad once again to have voted for a DA who is willing to do that.

Get ready for the “sanctuary cities” lawsuits

It’s just a matter of time.

Now that Senate Bill 4 is on its way to becoming law, opponents are looking to the courts for relief – and a 2012 U.S. Supreme Court case is giving them hope.
The high court struck down parts of a controversial 2010 immigration law in Arizona on the grounds that Congress, not the states, has the power to create immigration law. Experts say that argument could come into play with Texas’ SB 4, which requires local jails to comply with immigration detention requests that federal officials have said are voluntary.

“My opinion is the state is regulating in the immigration field,” said Barbara Hines, senior fellow at the immigration reform group the Emerson Collective. “What the state of Texas is doing is they are creating their own detainer program. That is pre-empted. Immigration is a federal area.”

Among other things, SB 4 would create civil and criminal penalties for officials who disregard requests by U.S. Immigration and Customs Enforcement to extend the detention of jail inmates suspected of being in the country illegally. Those detention requests, or detainers, help facilitate possible deportation proceedings.

State Rep. Rafael Anchia, D-Dallas, predicted that the bill will follow the same course as Arizona’s SB 1070, better known as the “papers please” law because it required law enforcement officers in Arizona to demand the documentation of anyone they believed was in the country illegally.

Texas’ SB 4 doesn’t require officers to ask, but it prohibits sheriffs or police chiefs from keeping their officers from doing so.

“It allows local law enforcement to ask anybody on the street for their immigration status,” said Anchia, who chairs the Democrat-dominated Mexican American Legislative Caucus, which is fighting the state in court over redistricting maps it says are racially discriminatory.

[…]

Critics have argued the bill would separate families, deport well-meaning immigrants and create a fear in immigrant communities that might undermine their safety.

They picked up a legal argument this week after a group of mayors, including Austin Mayor Steve Adler, met with U.S. Attorney General Jeff Sessions for clarity on the ramifications for so-called “sanctuary cities.”

Sessions confirmed Tuesday to the mayors that compliance with the federal immigration detention requests sent to local jails — the central requirement of SB 4 — isn’t mandated under federal law. Rather, the jails can choose whether to hold inmates longer at the request of ICE, Sessions said.

That the comments came from such a high-ranking Trump administration official deflated the notion often associated with SB 4: that local officials like Travis County Sheriff Sally Hernandez are breaking federal law by choosing to ignore some ICE detention requests.

It also raised questions over whether the state could step in and create an immigration law making the detainers mandatory.

“It is inevitable that you will see cities and counties across the state suing the state. The overreach is unprecedented,” Austin City Council Member Greg Casar said. “I don’t know who died and made Greg Abbott (into) Putin, but our cities are going to fight back.”

See here for the background, and here for more on what Mayor Adler said about his meeting with Sessions. I hope opponents of this lousy bill flood the zone with lawsuits. It’s clear from the HB2 experience that setbacks in court will not stop the Lege from trying the same things again in the future, but it’s still necessary. Also, I say Greg Abbott has always had authoritarian inclinations, he’s just more comfortable expressing them in public now.

There will also be many headaches for law enforcement agencies, which strongly opposed SB4.

Houston Police Chief Art Acevedo spoke vehemently against Senate Bill 4 Thursday afternoon, calling it a dangerous move by the state Legislature because it would redirect limited HPD resources from crime fighting efforts to an initiative that does not improve public safety.

Acevedo did not share if HPD would alter its policies if SB 4 were to become law. However, he made it clear during the afternoon presser he would make public safety a priority over policies he believe are unrelated.

“I am carrying out my sworn duty and moral duty to speak out on matters of public safety. And I’m not here to keep a job to do it,” he said.

[…]

The legislation would force police to honor all federal requests to detain people suspected of being in the country illegally until federal authorities can investigate the person’s status. It also would prohibit local jurisdictions from passing or enforcing an ordinance that prohibits police officers from inquiring about a detained person’s immigration status, which would nullify the Houston Police Department’s 1990 policy on the matter.

“If that language does not get removed … we’re going to have some negative consequences,” Acevedo said.

Police departments across the state, including Houston, are understaffed, he said. And the bill would diminish those already limited resources, he added. Just this year Acevedo announced plans to target high-crime areas and violent documented gang members.

He also announced a joint effort with the Texas Department of Public Safety to decrease violent crime in the area by creating two squad assigned to the initiative.

However, he believes SB4 may affect those plans.

“We don’t have the resources, nor do we have the bandwidth nor the desire to be ICE agents. If I wanted to work for ICE, I would’ve applied for ICE,” he said.

Acevedo’s worry is that a police officer’s duty and the proposed policy will create a divide among departments throughout the state. While police officers are sworn to protect, he says the bill could open the door for harassment.

“I will lose my ability and authority to direct (my officers) workflow,” he said. “ … And all of sudden I’ll have a police officer that wants to go off and play ICE agent all day.”

He went on to add he hopes that isn’t the case, but that perception would be damaging for Houston – particularly on immigrant communities.

It’s not about what local officials want, it’s about what Greg Abbott wants. Sorry, Chief. The Chron, ThinkProgress, and the Press have more.

So what does that redistricting ruling really mean?

The Trib has a good explainer.

So will the Legislature redraw the congressional map? And if so, when?

Here’s where it gets tricky. Friday’s order made it clear that the 2011 map cannot stand, but it did not order anyone to immediately redraw it. That might be because that map wasn’t actually in effect.

Amid the legal wrangling, Texas has conducted elections with a court-approved interim map. [Michael] Li, the redistricting expert [with the Brennan Center for Justice at New York University Law School], said the court must still rule on that map, drawn in 2013. It’s not clear when that will happen. Striking down the 2013 map is something of a formality, Li said, because the boundaries of two of its districts — Farenthold’s 27th and Doggett’s 35th — are identical to those drawn in 2011.

It’s anybody’s guess when Texas will get new maps — or even who will draw them. Generally, courts will give lawmakers another crack at drawing a map that’s been struck down. But plaintiffs could argue that Texas can’t be trusted to try again, pushing instead for an alternative fix.

Can Texas appeal Friday’s ruling?

Sure. Texas Attorney General Ken Paxton could ask the U.S Supreme Court to weigh in on the case. But it’s not clear when or whether the Republican will do that — largely because of how open-ended the ruling is.

“Since this is an interim order that does not propose any relief, the State is evaluating its options, which may be impacted by any future court rulings,” Kayleigh Lovvorn, a Paxton spokeswoman, told the Texas Tribune on Monday.

What about Texas’ state House and Senate maps?

The courts have settled squabbles over the state Senate map, but a challenge to the House boundaries is still pending. It’s not clear when the judges will rule.

What are the larger implications of Friday’s ruling?

Experts call it huge that the judges found “intentional” discrimination in the congressional map — a condition that could ultimately put Texas back on the list of states that need permission to change their election laws.

A 2013 Supreme Court ruling — Shelby County v. Holder — sprung Texas and other states with a history of discrimination from that list. But Section 3 of the Voting Rights Act includes a “bail-in” provision allowing courts to put a state back under supervision (a process called “preclearance”) if it is found to have knowingly discriminated in changing its election laws.

“This is a big test of whether the Voting Rights Act still has some teeth,” Li said.

Before the Shelby County ruling, Texas needed the U.S. Department of Justice’s signoff to change its election laws. If courts again ordered such supervision, Texas could find a sympathetic ear from the current U.S. attorney general, Jeff Sessions, who applauded the Shelby County decision in 2013.

But if the judges give Texas a supervisor, they could choose someone other than the Justice Department — another court, for instance.

“The court has broad discretion in defining how preclearance will work,” Li said. “Section 3 [of the Voting Rights Act] is very untested, and this case will help define what a court can and cannot do.”

See here for the background. If you want even more from Michael Li on this, see what he has to say at Rick Hasen‘s place. I didn’t know that about Section 3. I had been skeptical about bail-in to preclearance having much effect since the Sessions Justice Department is a cruel joke, but if Texas has to get pre-approval on any changes from a federal court, that changes things. And with this ruling, there may be two cases that require preclearance again. Maybe this time, crime really didn’t pay. In any event, at this point we need 1) a remedy for the Voting Rights Act violations, which begins with a new map; 2) some process for drawing that new map – it could be the court, if the plaintiffs can argue that the Lege cannot be trusted; 3) a ruling on the State House map, and a remedy for it if it too is ruled to be illegal; and 4) a ruling on Section 3 bail-in. Time is officially of the essence, so let’s hope we start getting answers to these questions soon.

Another voter ID update

From the Lone Star Project:

Still the only voter ID anyone should need

Last week, the Trump Department of Justice brought press attention to the ongoing Texas voter ID lawsuit that remains pending before Federal District Judge Nelva Gonzales Ramos in Corpus Christi. The Trump DOJ withdrew long-standing federal government claims that the Texas law was adopted with the intent to discriminate against Hispanic and African American Texans.

By withdrawing its claims of discriminatory intent in the Texas case, the Trump DOJ, led by embattled Attorney General Jeff Sessions, sent its first clear signal that the DOJ under Trump will not responsibly defend the U.S. Voting Rights Act or block discrimination against minority citizens.

Moreover, in their brief to Judge Ramos, the Trump DOJ argued that she should delay her ruling on discriminatory intent until the current Texas Legislature decides on the adoption of a new Texas voter ID law.  The argument is extraordinary in that it somehow reasons that the intentions of a Legislature convened in 2017 can repair or erase the discriminatory intentions of a different Legislature convened in 2011.

On Tuesday, allied plaintiffs challenging the Texas voter ID law, who include U.S. Congressman Marc Veasey (TX33 – Dallas/Fort Worth), filed their brief responding to the Trump DOJ.  The brief is relatively short and easy to follow.  The key points made are:

  • The Trump DOJ withdrew its claims of discriminatory intent based on political rather than substantive legal considerations.  They failed to cite any new evidence refuting discriminatory intent.
  • Action by the current Texas Legislature to consider or pass a new voter ID law does not reflect on the intent of the Legislature five years ago, and should not affect Judge Ramos’ actions or ruling on discriminatory intent now.
  • Judge Ramos should issue her ruling on discriminatory intent now, while holding her final judgement and prescribing a remedy until the Legislature completes whatever actions it may take on new voter ID legislation.

Judge Ramos is expected to issue her response to the briefs filed soon.

See here for the background. I didn’t think much of the state and DOJ’s arguments last week, and I don’t think any more of them now. Between this and the redistricting decision, the potential to substantially roll back some of the most egregiously restrictive voting laws of this decade is great.

Justice Department wants out of voter ID case

As expected.

Still the only voter ID anyone should need

The U.S. Department of Justice confirmed Monday it plans to ditch its longstanding position that Texas lawmakers purposefully discriminated against minority voters by passing the nation’s strictest voter identification law in 2011.

The move comes one day before a federal judge is scheduled to hear arguments on that high-stakes voting rights question, and it highlights yet another instance in which President Donald Trump has dramatically departed from the path of his predecessor.

Former President Obama’s Justice Department originally teamed up with civil rights groups against Texas throughout the long-winding legal battle over the ID law, known as Senate Bill 14. But on Monday, lawyers for U.S. Attorney General Jeff Sessions told parties that they were dropping a claim that Texas lawmakers intentionally discriminated against Latino and African-American voters.

The Justice Department’s immediate plans do not include changing its position that the ID law has a “discriminatory effect” on certain voters. A federal appeals court has already resolved that issue, ruling against Texas.

But U.S. District Judge Nelva Gonzales Ramos is scheduled to weigh a more specific question Tuesday: Whether lawmakers knowingly discriminated.

A soon-to-be-filed Justice Department motion “seeks to dismiss the discriminatory purpose claim, but not the discriminatory effect claim,” Mark Abueg, a department spokesman, confirmed to the Texas Tribune.

A ruling against Texas could ultimately put it back on the list of states needing federal approval (called “preclearance”) before changing election laws. A 2013 Supreme Court ruling sprung Texas and other states with a history of discrimination from that list.

Danielle Lang, deputy director of voting rights for the Campaign Legal Center, one of several groups challenging the Texas law, vowed to press on in the case — even without the federal government’s help.

“None of the facts have changed, just the administration,” she said in an interview. “We will be arguing the same claim, and we think it’s really disappointing that the Department of Justice is backing away from its enforcement of voting rights.”

See here for some background. Today’s hearing was rescheduled from January; the DOJ and the State of Texas tried to get today’s hearing postponed as well, to give the Lege a chance to pass the voter ID 2.0 bill, but were denied. Even if Sen. Huffman’s update to the voter ID law, which would incorporate the so-called “softening” agreements from the 2016 Fifth Circuit ruling, were to be passed, it wouldn’t affect this litigation anyway, since the question being litigated is whether the Lege acted with discriminatory intent in 2011 when SB14 was passed. It will be interesting to see if today’s hearing has any effect on the Huffman bill.

So this is where we are. The private plaintiffs will have more work to do now, but as they note the facts haven’t changed, just who’s sitting at the table with them. Rick Hasen believes (and I agree with him) that “eventually DOJ will be on the other side of this issue, supporting the right of states to make it harder to register and vote (purportedly on anti-fraud or public confidence grounds)”. Among other things, that means that Texas will get a much warmer reception from the feds if they pass bills this session or next that restrict voting rights, but that day hasn’t happened yet. Today we will hopefully move one step closer to a ruling that Texas didn’t just accidentally discriminate with SB14. The Lone Star Project, Political Animal, the Current, and the Chron have more.

Deportation nation

Appalling.

The Trump administration on Tuesday moved one step closer to implementing the president’s plans to aggressively rid the country of undocumented immigrants and expand local police-based enforcement of border security operations.

In a fact sheet outlining the efforts, the Department of Homeland Security said that though their top priority is finding and removing undocumented immigrants with criminal histories, millions more may also be subject to immediate removal.

“With extremely limited exceptions, DHS will not exempt classes or categories of removal aliens from potential enforcement. All of those in violation of the immigration laws may be subject to enforcement proceedings, up to and including removal from the United States,” the fact sheet explains. “The guidance makes clear, however, that ICE should prioritize several categories of removable aliens who have committed crimes, beginning with those convicted of a criminal offense.”

The memo did not include instructions to halt the 2012 executive action called Deferred Action for Childhood Arrivals, or DACA, which has allowed about 750,000 undocumented immigrants who arrived in the United States as children to live and work in the country legally.

The guidelines also state that the Department of Homeland Security has authority to expedite the removal of undocumented immigrants who have been in the country illegally for at least two years, a departure from the Obama administration’s approach of concentrating mainly on newly arriving immigrants.

“To date, expedited removal has been exercised only for aliens encountered within 100 air miles of the border and 14 days of entry, and aliens who arrived in the United States by sea other than at a port of entry,” the agency states.

The action also seeks to expand a police-based immigration enforcement program known as 287(g), which allows local and state officers to perform immigration duties if they undergo the requisite training. The program fell out of favor under the Obama administration after Immigration and Customs Enforcement announced in 2012 that it wouldn’t renew contracts that were in place at the time.

“Empowering state and local law enforcement agencies to assist in the enforcement of federal immigration law is critical to an effective enforcement strategy, and CBP and ICE will work with interested and eligible jurisdictions,” the memo reads.

This is going to be a humanitarian catastrophe. It’s going to be devastating for a lot of industries – agriculture, construction, hospitality – all of which will be a drag on Texas’ economy. It will do further damage to our already dented international reputation. And it won’t do a damn thing to make us safer. I wonder what Jeff Sessions will do when churches start offering sanctuary to people who are being targeted. Oh, and it will be a big unfunded mandate on cities and counties, in the same way that the “sanctuary cities” bill in the State Senate will be, if local cops are being required to enforce immigration law. This is going to be very, very ugly. Political Animal, Daily Kos, the Current, and ThinkProgress have more.

Trump Justice Department to drop appeals in transgender bathroom directive case

From ThinkProgress:

The Trump administration has elected not to contest a Texas federal judge’s injunction barring the federal government from implementing Obama administration guidelines that protect transgender kids in schools.

Oral arguments for the Obama Justice Department’s appeal of the judge’s decision were scheduled for Tuesday. The DOJ cancelled them in a legal brief submitted Friday.

“Defendants-appellants hereby withdraw their pending November 23, 2016 motion for partial stay pending appeal,” the brief says. “The parties jointly move to remove from the Court’s calendar the February 14, 2017 oral argument currently scheduled for that motion. The parties are currently considering how best to proceed.”

That brief was filed the day after Jeff Sessions was sworn in as Attorney General.

As ThinkProgress reported last August, the Obama administration’s guidance “stated that Title IX’s nondiscrimination protections on the basis of ‘sex’ protect transgender students in accordance with their gender identity, such that they must be allowed to use the bathrooms and play on sports teams that match their gender.” But the brief filed Friday signals that the Trump administration no longer wants to implement that guidance.

See here, here, and here for the background. I suppose some other group could try to enter the proceedings at this point in place of the feds, but there’s nothing to stop Dear Leader from rescinding this executive order, which would moot the whole thing. We’re clearly not going to move forward in the next few years, so we’re going to have to fight to not move back.

So what will the Justice Department do with voter ID now?

We don’t know yet.

Still the only voter ID anyone should need

Hours after President Donald Trump was inaugurated, the Department of Justice filed to postpone a hearing on the Texas Voter ID law. The request was granted. The DOJ had previously argued that the law intentionally discriminated against minority voters, but told the court it needed additional time for the new administration to “brief the new leadership of the Department on this case and the issues to be addressed at that hearing before making any representations to the Court.”

Chad Dunn, attorney for the plaintiffs in the case, expects Trump’s Department of Justice to reverse course. “I figure the government will spend the next 30 days figuring out how to change its mind,” he said, adding that now he expects the DOJ to argue on behalf of the state of Texas, which has held that there was no intent to discriminate against minorities. “The facts did not change – just the personnel.”

The new hearing date has been set for Feb. 28.

Myrna Perez is the deputy director of the Brennan Center’s Democracy Program and leader of the center’s Voting Rights and Elections project. The Brennan Center was also set to offer oral arguments against the ID law on Tuesday, and Perez said she was “disappointed” with the DOJ’s decision to postpone the hearing. “Numerous courts have held that this law harms minority voters in Texas and we think delaying resolution of this case in that matter isn’t good for Texans,” she said.

[…]

The DOJ had previously argued that the law violated the Voting Rights Act and was intended to directly impact the abilities of minorities to vote, as more than 600,000 of them lacked the ID necessary under state law to vote. Dunn now expects the agency to reverse course.

Trump has not yet had an opportunity to nominate, let alone see confirmed, new judges.

“I don’t expect the outcome of this case to change because we’ve elected a new president,” Dunn said. “For people like me who handle civil rights case and the many who came before me to who did the same, we’re used to fighting against government at all its levels.”

See here for the background. It would be a shame, though it would hardly be a surprise, if the Justice Department changed course. I mean, this is GOP doctrine now, and you can’t send any clearer a signal than appointing Jefferson Beauregard Sessions as AG. It would be nice for the Justice Department to stay on the right side of this, but in the end I think Chad Dunn is correct. The facts haven’t changed, and the plaintiffs have had plenty of experience fighting against the government. Vox has more.

Voter ID hearing postponed

I fear this is a portent of things to come.

Still the only voter ID anyone should need

Within hours of Donald Trump being sworn in as president Friday, a Corpus Christi federal court postponed a scheduled hearing in the Texas Voter ID case until next month at the request of the U.S. Department of Justice.

Lawyers for the Justice department asked for a delay in the hearing scheduled for Tuesday, citing the change in presidential administrations.

“Because of the change in administration, the Department of Justice also experienced a transition in leadership,” the Justice Department petition states. “The United States requires additional time to brief the new leadership of the Department on this case and the issues to be addressed at that hearing before making any representations to the Court.”

In the past, the agency has asked that hearings in the case be expedited because of the issues involved.

The Corpus Christi court agreed to the delay, postponing the hearing until Feb. 28.

A lawyer for one of the plaintiffs expressed disappointment at the delay.

“This delay for us is not in the interest of resolving a case that has been going on for far too long,” said Leah Adeh, senior counsel with the NAACP Legal Defense Fund, which represents one of the plaintiffs. “We all have been expending far too many resources on it, and we really want a hearing to get to a decision that this law needs to be struck down.”

Aden said she did not have any reason to believe the delay was a deliberate move to weaken the case against the law, but said elections are upcoming, and a resolution needs to come quickly.

See here and here for the background. Rick Hasen expects that the Justice Department will now switch sides in litigation like this, and he notes that the incoming deputy assistant attorney general for civil rights in the DOJ has a long history of defending redistricting plans in court. So that’s awesome. As a reminder, this hearing was about the question of whether the voter ID law had discriminatory intent, which would void the law and could put Texas back under preclearance, not that this would mean much for the next four years. The law had already been found to have a discriminatory effect and was thus in violation of Section 2 of the Voting Rights Act, a ruling that was upheld by the Fifth Circuit and has been appealed to SCOTUS. The fight is far from over and the good guys still have a good shot at it, but it has gotten a lot harder. Politico and the Brennan Center have more.

Feds officially file appeal in transgender bathroom directive lawsuit

This may be the last stop.

With two weeks left, the Obama administration has asked a federal appeals court to throw out a lower court’s decision that suspended policies designed to protect transgender people’s access to restrooms — a sign the current leadership of the Justice Department will close shop mid-fight on one of its signature LGBT issues.

Federal lawyers said in a brief filed Friday with the US Court of Appeals for the Fifth Circuit that the previous ruling was incorrect and overly broad.

[…]

With their remedies waning in the lower court — and time running out — the Justice Department’s Civil Division made three arguments to the Fifth Circuit.

The Justice Department said the case is not ripe for judicial review because the government did not violate the Administrative Procedure Act, as Texas and the other states claimed. The guidance for schools and workplaces are not final acts by any agency, the appeal says, and therefore did not require a rule-making process under the APA.

Federal lawyers further contend the states lack standing to bring the case because they “can ignore [the guidance] without legal consequence.” They note that enforcement stems from civil rights laws, not the guidance itself. In the past, the states have bristled at that argument, noting in briefs and oral arguments that the government cited the guidance when threatening to sue school districts that banned transgender students from certain facilities.

Finally, the Justice Department argues that the lower court, under Judge O’Connor, erred by ruling too broadly. O’Connor did so by in applying the injunction nationwide, rather than just within the states that brought the lawsuit, the government lawyers say.

See here and here for the background. As Kerry Eleveld notes, Judge O’Connor cited the fact that this directive did not go through the federal rule-making process in his injunction against it, but other directives, including the health directive that O’Connor also injuncted, did go through that process. As always, it sucks to have to depend on the Fifth Circuit for anything, but there’s not much choice. We’ll see what happens.