Does the Administrative Procedure Act authorize national injunctions?

|The Volokh Conspiracy |

Injunctions are remedies given by courts. They are orders for the defendant to do or refrain from doing some act. Traditionally, injunctions have protected the plaintiff, but only the plaintiff—injunctions haven't protected people who aren't parties to the case. But federal judges now sometimes give "national injunctions." National injunctions prohibit the federal government from enforcing a law or regulation against anyone, not just against the plaintiff. Examples include the national injunctions against President Barack Obama's signature immigration initiative and against President Trump's order restricting travel from certain countries. National injunctions are becoming routine in the federal courts.

One argument given for national injunctions is the Administrative Procedure Act. This is a major statute from 1946 that establishes, among other things, how judges review the work of administrative agencies. The argument is, in essence, that the APA tells judges to "hold unlawful and set aside" illicit agency actions, and federal judges are simply following that command when they issue national injunctions. That argument is attractive to some, because it promises to help us sort national injunctions into "good" and "bad" categories. It is especially attractive to Republican partisans, because the national injunctions against the Obama administration tended to rely on the APA, but for technical reasons, the national injunctions against the Trump administration have not tended to rely on the APA.

But there are several difficulties with the APA-made-me-do-it argument for the national injunction.

First, to find support for the national injunction in the APA is anachronistic. There were no national injunctions before the APA was enacted. It would be very odd for Congress to slip into the APA an authorization for an unheard-of and dramatic new remedy. As Justice Antonin Scalia said, "Congress, . . . does not, one might say, hide elephants in mouseholes."

Second, the best argument for finding a basis for the national injunction in the APA is the "set aside" language. But on closer inspection, that doesn't turn out to be a very strong argument. "Set aside" was technical language, it seems, for reversing a judgment (see Morgan v. Daniels). That fits with the expectation, when the APA was enacted, that federal agencies would typically make policy through adjudication, not through general rule-making (as discussed in this excellent article by Reuel Schiller). If agencies were expected to make policy through adjudication, and courts were supposed to review the actions of agencies, it makes complete sense to use a term for reversing judgments ("set aside"). And reversing a judgment has never meant the same thing as issuing an injunction, which is an in personam order enforceable by contempt.

The trouble, of course, is in making sense of what a phrase used for reversing judgments ("set aside") means when the agency action is a rule. There are good reasons to think it would mean "don't apply the rule," not "enjoin enforcement of the rule everywhere." One is that this is the traditional conception of what judges do to unconstitutional statutes and unlawful rules—not apply them. Only later, after the APA is enacted, does the idea of judges "striking down" statutes and rules become more prevalent. Second, the APA says that what judges are to "hold unlawful and set aside" is "agency action, findings, and conclusions." It would be silly to think the judge is supposed to enjoin findings and conclusions. And if "set aside" doesn't mean "enjoin" for findings and conclusions, it is unlikely to have that meaning for agency actions. Otherwise, it would be a zeugma—not impossible, but rather unlikely. Much more probable: "set aside" does not refer to injunctions, but instead to ignoring the work of an agency that is inconsistent with law. If so, the verbal phrase can have the same sense for all three objects—"agency action, findings, and conclusions." This meaning works no matter whether the agency action is an adjudication or a rule.

Third, if the APA did authorize national injunctions, it did more than that: It required them. The APA instructs courts to set aside unlawful agency action; it doesn't just give them permission. But if "set aside" means "enjoin the enforcement everywhere," then it is passing strange that for several decades after the APA was enacted essentially no one thought that it required national injunctions. I am aware of no national injunctions before the 1960s, and only one before the 1970s.

In other words, to believe the APA authorizes national injunctions, one would have to accept that (a) Congress used familiar words that were not about injunctions ("set aside") (b) in order to require federal courts to give a dramatic new kind of injunction, (c) that Congress forgot to tell anyone, and (d) that no one knew about it. Occam's razor would suggest a simpler explanation: The APA didn't require national injunctions.

Indeed, unless the APA is clear on the question, there is no authorization of the national injunction. The U.S. Supreme Court has held that statutes shouldn't be read to abrogate long-standing remedial principles without a clear statement to that effect (Nken v. Holder). The principle that injunctions protect the plaintiff, rather than protecting non-parties, is based on centuries of equitable practice. Nothing in the APA is even remotely close to a clear statement that would establish a contrary principle.

Finally, even if the APA did authorize national injunctions, there is a constitutional problem. A mere statute cannot grant to the courts a power that lies beyond the "judicial Power." I put the point this way in a forthcoming article (with supporting citations):

Article III of the Constitution of the United States confers the "judicial Power." This is a power to decide a case for a particular claimant. Indeed, "all challenges to statutes arise when a particular litigant claims that a statute cannot be enforced against her." This claimant-focused understanding of the judicial power has implications not only for who can sue in federal court, but also for what remedies the federal courts have authority to give. On this understanding, Article III defines the judicial role as "redress[ing] an injury resulting from a specific dispute." Once a federal court has given an appropriate remedy to the plaintiffs, there is no longer any case or controversy left for the court to resolve. The parties have had their case or controversy resolved. There is no other. The court has no constitutional basis to decide disputes and issue remedies for those who are not parties. . . .

In short, Article III gives the judiciary authority to resolve the disputes of the litigants, not the disputes of others. Article III gives the judiciary authority to remedy the wrongs done to those litigants, not the wrongs done to others.

Judges can, and indeed must, reverse agency action inconsistent with law. When they do so, their decisions are precedents that will apply in other cases. But what judges should not do is issue injunctions that protect non-parties. Nothing about that conclusion changes because of the APA.

If there is a good case to be made for the national injunction—and I don't think there is—it has to rest on some other foundation than the APA. Such a case would need to rest on arguments about the scope of the "judicial Power," the equitable authority of federal courts, and what counts as good policy in a system of distributed judicial decisionmaking.

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