National Injunction Developments

New opinions from the Fourth and Ninth Circuits

|The Volokh Conspiracy |

There are two developments of note.

First, there has been a steady stream of national-injunction-related decisions out of the Ninth Circuit. The Notice & Comment blog has a review (by William Yeatman), and it notes that two lines of doctrine are developing about national/nationwide preliminary injunctions in the Ninth Circuit. In one line, these injunctions are justified by appeals to the need for uniformity in immigration law, the APA, and the breadth of possible harms to an organizational plaintiff. In the other line, these injunctions are viewed skeptically because they interfere with percolation in the federal system and go beyond what is needed to remedy the harms to the plaintiff.

(The only criticism of the Notice & Comment post I would venture is that the pro-national-injunction opinions, including at least one opinion by Judge Fletcher, sometimes go out of their way to suggest that the injunction being granted is not really national in scope. Whether that is salutary modesty and precision about the scope of the remedy, or an indication of the doubtfulness of the legal foundation of national injunctions, or both, is a question I will leave to the reader.)

Second, Judge Wilkinson of the Fourth Circuit has an opinion in Casa de Maryland, Inc. v. Trump that lays out clearly and at length the arguments against the national injunction (pp. 56-70)–as a matter of constitutional principle, equitable doctrine, and judicial policy. It is now probably the leading opinion from the lower federal courts against the national injunction. On the other side, a leading opinion from several months ago is by Judge Howell, chief judge of the U.S. District Court for the District of Columbia, in District of Columbia v. U.S. Department of Agriculture (pp. 68-84). Both the opinions of Judge Wilkinson and Judge Howell show how this question is not a narrowly technical one about remedial mechanics, but is instead downstream from different views about the nature of judicial authority and the judicial duty.

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  1. I see policy and a sprinkling of statutory justification on both sides of the split.

    Is there anything Constitutional/originalist going on for either of them? Should there be?

    1. Constitutional aspects:
      * Relation to Article III case-or-controversy requirement.
      In a case brought by A against B, what authority does a court have to give orders affecting C? Wilkinson says that because A can’t vindicate C’s rights, a court has no constitutional power to do more than uphold A’s rights. Howell says that case-or-controversy only goes towards standing, so once standing is established, courts have a free-wheeling discretionary role in crafting remedies like injunctions.

      Brone’s Breakdown: Howell has the better argument here. Wilkinson doesn’t explain why standing limits the scope of the remedy.

      * Equity power
      Wilkinson says that traditional English equity principles were constitutionalised in Article III, and that universal injunctions are foreign to such principles. Howell says that universal injunctions are completely aligned with traditional equity principles, because if the court crafts an injunction to abate a public nuisance, everyone benefits from the injunction, not just the plaintiff.

      Brone’s Breakdown: Wilkinson wins, because Howell’s argument is laughably weak. There’s a clear distinction between relief necessary to make plaintiff A whole, from which C may incidentally benefit (e.g. the typical public nuisance injunction), and relief not necessary to make A whole (e.g. Howell striking down the SNAP requirements in Texas because New York brought suit against them). But there are better arguments than Howell’s out there.

      1. Noice.

        I’m pretty agnostic on how this goes, but my inner process geek is pretty happy with watching stuff unfold.

  2. “but is instead downstream from different views about the nature of judicial authority and the judicial duty.”

    This is the most interesting idea in the article. Unfortunately, there’s no text following it to explain these differences in view.

    While I’ve read legal opinions in the past, i’d like to see someone who makes a claim actually defend it with their interpretation of the evidence.

  3. [sarcasm alert] Maybe the 9th Cir needs to enter injunctions against SCOTUS overturning it’s injunctions. For that matter, it should enjoin Trump from taking any actions as president. Maybe even enjoying the Republicans in the US Senate from voting on legislation.

    1. Some members of the Patent Bar have actually suggested that the Federal District ignore the repeated slap downs by SCOTUS because SCOTUS lacks expertise in patents. An alternate explanation is that the Federal District has been captured by patent maximalists and they don’t want a more restrictive approach to restrict their rent seeking on stupid patents.

      1. The Federal District basically does ignore the Supreme Court, which is why they keep getting slapped down.

        1. You’re far too trusting. The patent bar is too remote to make an effective demonstration. But don’t worry; we will deal with your lawyer friends soon enough.

      2. Hmmmm….speaking as a tax lawyer, maybe the tax bar should take a similar approach. Some (not all) SCOTUS opinions have made a mush of tax law.

        1. I don’t think tax law has a single choke point like the Federal District where all appeals in patent cases go, but I am not a lawyer and don’t know much about tax litigation.

          1. Good point. You have lots of federal judges in various courts ruling on tax law. Some good; many not so much.

      3. What is the “Federal District”?

        1. See:

          Love the geography — that’s actually Quebec where they put PR, but it’s in the 1st. I never understood why, though.

  4. If a judge can enforce his order beyond his range (national injunction), then isn’t it logical if ANY appellate court outside the range can strike it down, and bind ALL other CIRCUITS?

    So, judge in California issues national injunction. You should be able to appeal to any other appellate circuit to void the injunction and bind the 9th Circuit. At least that seems logical to me. But I am not a lawyer!!!

    1. Seems to me only a matter of time before two judges issue conflicting national injunctions.

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