SCOTUS reins in a national injunction

Are the days of the national injunction numbered?

|The Volokh Conspiracy |


Big news on the national injunction front: the US Supreme Court. has just issued a stay of the district court's national injunction in Barr v. East Bay Sanctuary Covenant, a case about the administration's new asylum policy. Two justices dissented (Justices Sotomayor and Ginsburg); at least five justices voted to issue the stay (and as many as seven). To be clear, given the posture of the case, the Court is not deciding whether lower courts can issue national injunctions. But this action is a signal of the Court's concern about the practice.

The Supreme Court's action comes after a flurry of decisions in this case, even in the last few days. The district court issued a national injunction against enforcement of the administration policy. Then a Ninth Circuit motions panel (by a 2-1) vote issued a partial stay, limiting the injunction to the territory of the Ninth Circuit, and remanding to the district court. Then two days ago the district judge decided again to issue a national injunction. Then yesterday a panel of the Ninth Circuit (I presume a merits panel) issued a partial stay again limiting the injunction to the territory of the Ninth Circuit, a kind of "Yes, we really meant it." Then today the Supreme Court acted.

A few links:

Coverage by Amy Howe is here.

The SCOTUSBlog page for the case is here.

The order of the Court, with Judge Sotomayor's dissent, is available here.

(Correction: the original post said the vote was 7-2, which was incorrect, because dissents from a motion to stay do not need to be recorded. Thank you to the two careful readers who caught this.)