"For officers can almost always adduce a fifth factor, thereby taking themselves out of the injunction’s scope. The starkest example: officers could rely in part on the high numbers of undocumented persons in the area, a factor that seems present literally everywhere that the injunction applies."
Officers don't have reasonable suspicion that any one person is undocumented, but after they seize a dozen that becomes some kind of retrospective justification for the stop ? Surely not.
Great analysis. It seems like this could signal the further weakening of the irreparable harm factor, if the court of appeals’ stay doesn’t bear on the inquiry. I wonder if we’ll eventually see the Court do away with the Winter test and simply consider likelihood of success (unless “the government always wins irreparable harm” is a canon they want to continue to employ).
All of this is edifying and above my pay grade—only here to happily suggest “Odd Docket” came to mind re the last para. It’s fun and catchy.
I'm not sure I follow this logic:
"For officers can almost always adduce a fifth factor, thereby taking themselves out of the injunction’s scope. The starkest example: officers could rely in part on the high numbers of undocumented persons in the area, a factor that seems present literally everywhere that the injunction applies."
Officers don't have reasonable suspicion that any one person is undocumented, but after they seize a dozen that becomes some kind of retrospective justification for the stop ? Surely not.
Great analysis. It seems like this could signal the further weakening of the irreparable harm factor, if the court of appeals’ stay doesn’t bear on the inquiry. I wonder if we’ll eventually see the Court do away with the Winter test and simply consider likelihood of success (unless “the government always wins irreparable harm” is a canon they want to continue to employ).
I wrote in "Irregular Docket" as my entry to David Lat's poll
All of this is edifying and above my pay grade—only here to happily suggest “Odd Docket” came to mind re the last para. It’s is fun and catchy.