The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For some reason, everybody is talking about severability. (Which means it is a good day, like every day, to read Kevin Walsh.) In addition to all the discussion of the merits and severability in Texas v. United States, something should be said about the remedy. Several propositions:
1. It is good that the court did not issue a national injunction. (Multiple Chancellors.)
2. Don't get too comfortable: the court might well have issued a national injunction, given its other conclusions; it did not rule on all the counts in the complaint (so it might yet issue an injunction); and at any rate, after issuing a declaratory judgment, a court retains the power to issue injunctive relief. (28 U.S.C. § 2202.)
3. What the court issued was a declaratory judgment—a remedy that is the judgment itself, without any further remedy such as damages or an injunction. This remedy can be used to decide whether a patent is valid, or who owns a copyright, or whether an insurance contract requires the insurer to pay. A declaratory judgment is not merely advice from a court, a kind of mild suggestion. It is a binding decision of the court. (The Myth of the Mild Declaratory Judgment.)
4. Even though a declaratory judgment is a binding determination, it is not an order to the parties enforceable by contempt. The injunction, by contrast, being an equitable remedy, is enforceable by contempt. (This difference is explored more in Myth ) But since a declaratory judgment can be the basis for a subsequent injunction, it's not a permanent distinction—it's the difference between contempt in one step or in two. And we presume that the government will comply with judicial judgments.
5. So here's the gist so far: the district court gave a declaratory judgment, which is a binding decision, but not one immediately enforceable by contempt. But what is its scope? Whose rights and legal relations are determined by this declaratory judgment—those of every person in the United States, or only the those of the plaintiffs? The federal district court in Texas didn't say. And the question is enormously important but also understudied.
The answer depends, I think, on background understandings of Article III and the judicial power. If you think (as I do) that the judicial power granted by Article III is fundamentally about resolving the dispute between the parties, then there is an easy answer: the declaratory judgment is a binding determination as between the parties, but it does not control the relationship of the parties to non-parties. (There are of course still doctrines of precedent and preclusion—I am focusing on the effect of the remedy qua remedy.) But for those who don't adopt this understanding of the judicial power, it's a real puzzle. Why isn't a declaratory judgment a "national declaratory judgment," either automatically or at least whenever the issuing district court wants it to be?
Here's some wisdom on this from John Harrison:
Declaratory judgments concerning invalidity may seem like invalidation, but a declaration cannot make a previously valid law invalid, precisely because of its declaratory nature. FN: Declaratory judgments that conform to the federal Declaratory Judgment Act cannot be said to invalidate statutory rules for another reason. The Act provides that a court may declare the rights or other legal relations of parties. 28 U.S.C. § 2201(a) (2012). The legal relations of parties, like the right to performance under a contract, are specific to the parties. The invalidity of a statutory provision is general, and so not the proper subject of a declaratory judgment. It is, however, common for federal courts to declare that statutory provisions are invalid in the abstract. That practice is difficult to reconcile with the statute, but it is widespread.
More broadly, these questions about the effect of a declaratory judgment raise the issue about whether a declaratory judgment action should be thought of as essentially anti-suit. Here is a suggestive passage from the remedies casebook that Emily Sherwin and I are authors of (Ames, Chafee, and Re on Remedies, 2nd edition, pp. 678-679):
Modern procedural rules permit plaintiffs to sue directly for declaratory relief without seeking any further remedy against the defendant, provided there is an actual controversy between the parties. In other words, like an "anti-suit injunction," the declaratory judgment can be seen as an "anti-suit" remedy. The effect of the judgment is to settle the rights of the parties. The judgment constitutes a determination on the merits, and, by issue preclusion, precludes relitigation of the issues actually decided by the court. It also lays the foundation for further actions for damages or injunctive relief, if these remedies become necessary.
6. In analyzing the effect of the declaratory judgment, then, there are two mistakes to avoid. One is saying the government can ignore it because it's "only" a declaratory judgment. That is incorrect; it is a real judgment, and unless stayed by the district court or an appellate court it deserves the adherence accorded to any other judicial judgment. The other is saying the government is bound to follow the judgment with respect to everyone, party or not. In effect, we would be treating the remedy as a "national declaratory judgment." That, too, is incorrect. To give such a remedy is beyond the judicial power.
The government is bound to follow the judgment (unless, as it should be, it is stayed pending appeal), but only with respect to the parties. That still leaves plenty to debate and discuss–including the proper basis of standing for the plaintiffs, and the status of intervenor-defendants for thinking about the effect of a declaratory judgment. But this line of inquiry avoids making fundamental mistakes about the kind of remedy the declaratory judgment is, either the mistake of thinking it is soft, mild, unreal; or the mistake of thinking it is universal and conclusive as to non-parties.