Dead Horses and the Strong Hand

A preliminary injunction or temporary restraining order is not supposed to decide the case. In fact, as Lackey v. Stinnie recently emphasized, preliminary injunctions can do no such thing (and the point holds a fortiori for temporary restraining orders). The value of interim injunctive relief lies in a different direction: it is meant to preserve the efficacy of the court’s ultimate remedial options. In other words, the court should make sure that the parties do not engage in conduct that will undermine the court’s ability to give effective relief to whoever prevails. You can find extensive analysis of this in The Purpose of the Preliminary Injunction and Preliminary Injunctions on a Blank Slate.

Will Baude and I illustrate the point this way in Proper Parties, Proper Relief:

It is standard remedial doctrine that preliminary injunctions are supposed to be rare. They are not meant to decide the case, but are instead meant to hold things in place — “preserve the status quo” — so a court is able to decide the dispute. As such, they are a critical tool in equity’s arsenal. They are especially useful in allowing a court to stop a defendant from abusing the legal process by going ahead and taking the irreversible action that will moot or radically alter the case — selling the disputed pet, tearing down the disputed house, exporting the disputed Vermeer.

After “exporting the disputed Vermeer,” one could add “or the alleged Venezualan gang members.” In other words, in thinking about Judge Boasberg’s order that is currently a matter of intense dispute, it is helpful to think about why TROs exist in the first place. The need to preserve the court’s ability to decide the case and give effective relief—regardless of the politics, and regardless of who eventually wins the case—is an important aspect of a well-functioning judicial system.

That’s why I was surprised to see a filing from the Department of Justice today that argued in effect that what’s done is done. Here are two paragraphs from the filing:

Particularly because the Court’s inquiries relate only to retrospective and immaterial facts, and not future compliance, there is simply no need for the information at issue before the D.C. Circuit can issue its stay ruling.

Moreover, the Government has already set forth its arguments for why its actions complied with this Court’s March 16 minute order, see Doc. 24, which do not require reference to any of the information sought to support those arguments. And Plaintiffs have not explained why they need any of the requested information to raise whatever compliance arguments they intend to make either. In short, the Plaintiffs and the Court are seeking information about a past event to which the Government has already spoken and which has no salience to the Plaintiffs’ claims. Continuing to beat a dead horse solely for the sake of prying from the Government legally immaterial facts and wholly within a sphere of core functions of the Executive Branch is both purposeless and frustrating to the consideration of the actual legal issues at stake in this case. This consideration also warrants a stay.

But there is no law of the dead horse that says courts can’t inquire into compliance with their orders. What would happen if a court ordered someone not to sell the disputed pet, tear down the disputed house, or export the disputed Vermeer, and then the defendant went ahead and did it? Should the court say, “Let’s move on; there’s no use crying over spilt Vermeers”?

To the contrary, judges—no matter who appointed them, no matter what their personal views, no matter whether they are federal or state judges, no matter whether they were judges in 1725 or 2025, or any other distinction that could be made—take a dim view of people ignoring judicial orders and taking the law into their own hands. And the fact that disobedience happened in the past is not a defense against consequences in the present.

I am not addressing exactly what those consequences should be, since that is its own very thorny question, and one that is intensely discretionary. Rather, my point here is about the inadequacy of “it’s already happened” as a defense in equity. Consider, for example, an 1890 opinion from the Pennsylvania Supreme Court about a case where the facts were “strongly suggestive of a race against the law”:

A preliminary injunction was issued in this case 8th February, 1890, which, after hearing, the court below dissolved on the 21st of the same month. This appeal was taken by the plaintiff from the order dissolving the injunction. It is not our practice, as we have frequently stated, to file opinions in cases of this character. We shall not depart from it in this instance, so far as the merits of the case are concerned. But there is one feature about it which requires a few words of comment. It appears that the plaintiff is the lessee of certain coal mines, of which the defendants are the owners or lessors, and that since 1887 he has been operating said mines. A dispute having arisen as to the manner of working the mines, and the amount of royalty due under the lease, the defendants proceeded by force to tear up a portion of the tramway used by plaintiff in shipping his coal. The plaintiff replaced it, and it was again torn up. This occurred for the third time; the last being on February 8th, while the plaintiff was obtaining a preliminary injunction to restrain the defendants. The writ was served just as they had finished the work of demolition, and this coincidence is strongly suggestive of a race against the law. When the cause came on to be heard upon the motion to continue the injunction, the learned court dissolved it, in part for the reason that the act sought to be restrained had already been done, and that it had no power at this stage of the cause to issue a mandatory injunction, and restore the property to its former condition.

In the recent case of Appeal of Easton, etc., Ry. Co., ante, 486, we had occasion to express our views in regard to the propriety of settling legal disputes by the strong hand. I quote a few words from the opinion in that case as applicable here: ‘There is a growing disposition in this commonwealth, especially on the part of corporations, private as well as municipal, to take the law into their own hands, and settle controversies by force, instead of appealing to the courts to redress their wrongs and enforce their rights, in an orderly and peaceable manner. Instances are not rare, and are of recent occurrence, where bands of men have stood confronting each other, some of them with arms in their hands, in the assertion of supposed rights. The public peace has been threatened and disturbed in this manner, sometimes resulting in loss of life. It is well that it should be known that such persons, whether representing individuals, private corporations, or municipalities, are simply rioters, and answerable to the criminal law for their conduct.’ In that case the authorities of the city of Easton tore up the tracks of a streetcar company because the latter had put down a kind of rail of which the city council did not approve. They did not invoke the aid of the courts in enforcing their supposed rights, but asserted them with the strong hand. What the city did in that case, the defendants did in this. They decided in their own favor all the questions of law and fact arising under the lease, and enforced their decision by tearing up the tramway, not only once but thrice; the last destruction being so well-timed as to escape by a few minutes the injunction issued by the court. If such matters are to be settled in this way,—if we sanction the doctrine that might makes right,—there will be little use for the civil courts, while the criminal side of the courts will have a large accession of business, in the matter of riots, assaults, and homicides growing out of such transactions. What we did in the Easton Case we will do here. We will restore the injunction, without passing upon the merits of the case. They will be considered when it comes here upon final hearing. As far as it is possible upon a preliminary injunction, we will restore the status quo as it existed prior to the acts of the defendants. While the injunction will not require the defendants to relay the tramway, it will enable the plaintiff to do so, and will protect him in its use pending this litigation. The decree is reversed at the costs of the appellees, and the preliminary injunction is reinstated.

Appeal of Cooke, 135 Pa. 102, 108–10, 19 A. 944, 944–45 (1890).