Justice Thomas Criticizes Nationwide Injunctions, Citing Our Own Sam Bray

An interesting separate concurrence in the "travel ban" decision.

|The Volokh Conspiracy |

I just wanted to note that in today's Trump v. Hawaii decision, Justice Thomas has a separate concurrence that argues against "nationwide injunctions" (or "national injunctions," or as Justice Thomas labels them, "universal injunctions")—injunctions that "prohibit the Government from enforcing a policy with respect to anyone, including nonparties." Our own Sam Bray has written extensively on such injunctions (not at all limited to the ones against the travel bans), including in a recent Harvard Law Review article; the concurrence cites that article nine times. Congratulations to Sam for having his work so prominently noticed!

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  1. Thomas’s concurrence is fine Kennedy’s though… a right without a remedy is not a right, a rule without enforcement is not a rule, and that concurrence is the most sickeningly naive paean to non-judging a judge could write.

    1. To be fair to Kennedy, he is just as happy to hand out remedies in the absence of rights (or wrongs) and to enforce non existent rules. So he can do judging when leaving things alone is what a real judge would do, just as well as non judging when a real judge would judge. He is nothing if not flexible.

      Incidentally his concurrence slightly ups my odds on him retiring. It looks like the work of a tired man.

  2. Nationwide injunctions are a problem and SCOTUS should use its supervisory power to set down rules.

    Thomas’ solution is dumb, though. And unprincipled. Absent from his opinion is ANY actual evidence that anyone understood the Constitution as prohibiting nationwide injunctions. He just made it up.

    1. “And they appear to be inconsistent with longstanding limits on…the power of Article III courts. ”

      If there’s no case or controversy between particular parties, courts don’t have jurisdiction to provide relief.

    2. Seeing as how the Constitution is a granting of powers and not a limiting of powers (outside of a few badly written amendments…)

      Where do you see the grant of nationwide injunctions in the listing of powers on the judiciary?

      1. Article III. It is a plenary grant of judicial power..As long as there is a case or controversy, all other limitations on justiciability are prudential- as the Court has said many times.

        1. I just re-read Article III in its entirety. I see nothing to suggest that nationwide injunctions are an inherent plenary power of the Court.

          In fact, your own argument works against you. If A sues B, there is a case or controversy between them. If A chooses not sue C, there is no case or controversy between those two even if C’s conduct was identical to B’s.

  3. I could at least argue that, while a nationwide injunction enjoins the government in regards to people who weren’t party to the original case, it is at least enjoining the government, which was a party to the original case.

    This doesn’t mean they’re always legitimate, indeed it appears to be mostly a way of lower courts imposing their views on other circuits. But it might be appropriate in some instances.

    1. National injunctions apply even to parties who agree with the law. For example, in Halbig v Burwell, the plaintiffs had standing because they were harmed by receiving Obamacare subsidies. But if there were a nationwide injunction against the subsides, loads of folks would have been subject to the injunction even when everybody involved agreed that the subsidies were constitutional. There’s no controversy when everybody agrees.

  4. Justice Thomas suggested that maybe the Court would have to weigh in on the legality of such injunctions, but (unless I missed it) he didn’t suggest that Congress could either endorse or prohibit them. If one were to claim that there is some constitutional basis for them then perhaps Congress cannot ban them, even though it has complete power over the jurisdiction and even the existence of lower courts. I doubt that argument would get 5 votes.

    It’s a shame nobody else signed on to his concurrence. That happens a lot with Thomas. Notice also that he cites himself a lot in the opinion.

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