What's Missing in Washington v. Azar

|The Volokh Conspiracy |

The latest national injunction has landed. In Washington v. Azar, the court cites a few Ninth Circuit precedents about national injunctions (pp. 5-6). The court recognizes that circuit precedent allows national injunctions "if such broad relief is necessary to give prevailing parties the relief to which they are entitled." At this point, one would expect the court to say why such relief is needed. Or one would expect the court to return to that question later in the opinion. But the court never does. Oddly, there is no analysis of the scope of the injunction.

Other parts of the court's preliminary-injunction discussion, too, could be criticized. The court disclaims any conclusion that the plaintiffs "are more likely going to prevail," yet still issues a preliminary injunction. When analyzing irreparable injury, the court should be using as the baseline a scenario in which the plaintiff prevails on the merits. And the court's balancing of the equities doesn't really include any balancing.

But the real surprise is the hole where the national injunction analysis is supposed to be. That is in contrast to some of the recent national injunction decisions that have shown a stronger sense of craft (e.g., the E.D. Pa. opinion discussed here).

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  1. I’m still curious about how a case where a state (Washington) is a party isn’t being heard in the Supreme Court where Art. III puts it.

    1. IANAL and probably never will understand this national injunction business. I understand the desire to right the world’s wrongs, or at least the country’s wrong, but therein lies the rub. Presumably the national court, ie the Supreme Court, is the one responsible for national decisions. If a mere circuit Appeals Court can make decisions for the entire country, why waste money and time with chucking cases up to a Supreme Court? Then the obvious next step is to get rid of the Appeals Courts, since there lesser courts are just as capable of reaching outside their jurisdictions. Why settle for circuit splits when we could have more fun with more splits?

      I also understand that even the least of trial courts make national decisions all the time when they convict or acquit some petty criminal, for have they not now branded him a criminal to the entire country, even the entire world? Thus why not extend this national action to injunctions. Surely if a local shoplifting case in a lowly trial court can have national ramifications, so should a local injunction in that same lowly trial court.

      1. OK, but the state of Washington was plaintiff in one of these cases, so even if Joe Average plaintiff has to use the lower federal courts, why ignore the provision in Art. III that in cases where a state is a party, the Supreme Court will have original jurisdiction?

        Since many of these cases are by Democratic states against Republican federal policies, then taking the matter straight to the U. S. Supreme Court would be consistent with the constitutional text, help with a speedy resolution, and avoid inconvenient questions about the scope of a national injunction, since the Supremes indisputably have the power to issue such injunctions.

        1. I think original jurisdiction just means that the court can hear the case at first instance. But it doesn’t mean that it’s the only court that has this first instance jurisdiction.

          Congress has the power to create inferior courts and has chosen to give them roles including original jurisdiction over some of the same things that the Constitution has given SCOTUS original jurisdiction over.

          Think of the courts as vampires (always works for me) – all after the blood of virgins. Any particular vampire wants a nice fresh virgin. But there are many vampires.

          1. Yeah, but the head vampire (Supreme Court) can claim a virgin for himself.

            I wonder what would have happened if the U. S. had said to the district court – “we’re asking to have this case removed to the Supremes,” and if they’d petitioned the Supremes accordingly. It would be an appeal but a transfer of the case to a new court.

            1. would *not* be an appeal

            2. SCOTUS would have said “Thanks for your interesting petition, now go forth and multiply.”

              1. I think that would be correct, for an attempt by the defense to remove a case to SCOTUS.

                However, consider a different case, the plaintiff files a case directly with SCOTUS that validly falls under it’s original jurisdiction. In that case, I don’t think the SCOTUS justices should have the discretion to just say go away.

                1. OK, I see that, but it would make it look as if the original jurisdiction of the Supreme Court, where the state is a party, is just for the state’s benefit.

                  What if the feds beat Washington to court, suing Washington and seeking a judgment that it would have to comply with the regulations?

                  1. or just for the plaintiff’s benefit

                2. I imagine they would handle such a case the same way they handle cases between two states (where SCOTUS has exclusive jurisdiction) – appoint a special master to conduct the proceedings and issue a recommendation.

          2. “I think original jurisdiction just means that the court can hear the case at first instance.”

            I don’t think can is the right word in this sentence. Generally speaking, trial courts (district courts in the federal system) do not have the power to refuse to hear cases validly brought before them.

            Likewise, I do not think that the Supreme Court should have the discretion to refuse a case validly filed with it under it’s constitutionally defined original jurisdiction.

            1. The jurisdictional provisions of Article III define the outer limits of jurisdiction for federal courts, but they aren’t self-executing: Congress still has to statutorily grant a court jurisdiction over a particular type of case. The Supreme Court’s non-appellate jurisdiction is defined at 28 USC § 1251:

              (a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
              (b) The Supreme Court shall have original but not exclusive jurisdiction of:
              (1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
              (2) All controversies between the United States and a State;
              (3) All actions or proceedings by a State against the citizens of another State or against aliens.

  2. But the real surprise is the hole where the national injunction analysis is supposed to be.

    My long, but admittedly non lawyerly, experience of business (and indeed life) leads me to suspect, as a default, that when someone appears to go out of their way to avoid mentioning something obvious, that common sense indicates ought to be mentioned, it’s because they don’t want to talk about.

    1. Lee,

      I agree. The 9th just wants to avoid the question, because they might not like the answer.

  3. It’s not clear to me what the hole being referred to is.

    Is it the case for an injunction, or the case for the injunction to be national rather than limited to Washington State?

    1. Please try to read. The OP made very clear where the hole was:

      “Oddly, there is no analysis of the scope of the injunction.”

      Perhaps it would have been clearer if the OP had stated:

      “Oddly, there is no analysis of the GEOGRAPHICAL scope of the injunction.” But I think that was certainly implied, given that the entire post was about when NATIONWIDE injunctions are appropriate.

      1. Thank you, DJDD.

      2. Except that Geographical scope wouldn’t be right either,

        While they call it a National Injunction, the difference from a regular injunction isn’t about geography.

        If a party wins a case and obtains an injunction from a federal district court in the state of Washington, that injunction does not become void if the prevailing party moves to Oregon.

        The regular injunction binds the loosing party with respect to the prevailing party. The current location of either party is irrelevant.

        On the other hand the “National Injunction” which is only ever issued against the federal government purports to bind the government in respect to the entire population of the nation, not just the opposing party.

        Even against the federal government, geography ought to be irrelevant, the feds should not be able to force someone to re litigate an issue on which that someone had already prevailed just because they move from one circuit to another.

        1. Yes, Prof Bray eschews “nationwide” in favor of “national” to make precisely this point – it’s not that it applies in every place in the nation (regular injunctions do that) but that it applies as respects the government’s treatment of every person in the nation.

          He did try floating the meme “universal injunction” which seems apt, but he doesn’t seem to have persuaded other folk to follow.

  4. “Office of Population Affairs….”

    Sounds like Wannsee, doesn’t it?

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