The Volokh Conspiracy

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Today the National Injunction Batted .500

One judge grants a national injunction, another declines to


In two opinions issued today, federal district courts wrestled with the question of whether to give a national injunction. One judge did, one didn't. And their decisions offer a window into the current state of this question.

First, the U.S. District Court for the Northern District of California granted a preliminary injunction to thirteen states challenging certain rules promulgated by the Department of Health and Human Services. (These rules create a religious exemption and a moral exemption to the birth-control mandate under the Affordable Care Act.) The court declined to give a national injunction, and instead gave one that applied only within the thirteen plaintiff states. In the same case, the court had previously given a national preliminary injunction only to have it reversed by the Ninth Circuit, for the court's failure to justify the national scope.

The court did not offer an extensive discussion of the question. It made a passing reference to the possibility of "direct legal conflicts"–noting another district court's decision that a state lacked standing to bring a similar claim. But this is not a strong argument against national injunctions. The court was using "direct legal conflicts" in a very broad sense–encompassing different views of the law by different courts. Without national injunctions, that kind of conflict still happens (in fact, there would be more of it). More interesting is that the court, prodded by the Ninth Circuit's reversal, seemed to treat the national injunction as unusual and exceptional. The case didn't meet "the high threshold set by the Ninth Circuit for a nationwide injunction."

Second, the U.S. District Court for the Eastern District of Pennsylvania granted a preliminary injunction to two states challenging the same rules. And this court gave a national preliminary injunction–the injunction prohibits the federal government from implementing the rules with regard to anyone, not just with regard to the plaintiffs or to people within the plaintiff states. In effect, the Eastern District of Pennsylvania's decision to give a national injunction means the restraint shown by the Northern District of California has no effect (unless, of course, the Eastern District of Pennsylvania decision is stayed or reversed on appeal).

More interesting is the opinion the court gave defending the national injunction. It is well written, and for supporters of national injunctions it advances the strongest legal and precedential case for them. That is because it tries to show how the national injunction is an outworking of several lines of established doctrinal authority–the court doesn't lapse into the "someone is wrong on the internet" argument for the national injunction (someone, somewhere, is doing something unconstitutional and It Must Be Stopped).

Nevertheless, readers who have followed the national injunction debate will not be surprised that I think there are holes in the court's argument. Here are a few:

  1. The court very quickly, one might almost say blithely, says "it is well established that a district court sitting in equity has the authority to enter a nation-wide injunction." After this assertion, the court treats the question of giving a national injunction as strictly a matter of prudence and balancing. For this remarkable proposition, the court cites three cases, and the most interesting and oldest is a U.S. Supreme Court opinion from 1932. But on inspection the case has no bearing. It concerns contempt enforcement for an injunction that prohibited the defendant from infringing the plaintiff's patent anywhere in the country. But of course that is not controversial. Since the 1740s it has never been seriously questioned that a court of equity could control the defendant's conduct toward the plaintiff anywhere. What is at issue in the national injunction debate is whether a court of equity can control the defendant's conduct toward anyone in the country–including nonparties.
  2. The court takes a very aggressive view of "complete relief." In particular, the court seems to think that it has to, with its injunction, prevent any harm to the plaintiffs. And then, in a particularly strong part of the opinion, the court works through the practical difficulties involved in granting a narrower injunction. Nevertheless, there are several unstated and unexamined premises for the court's argument on this point. One is that equity has to prevent all harm to the plaintiff. That has never been true of equity, and instead there are a host of equitable doctrines that provide reasons for stopping short of "complete relief" because of the burden on the court, the conduct of the parties, and principles of constitutional strucuture. Another unstated and unexamined premise is that the point of a preliminary injunction is to prevent the plaintiff from suffering injury–an alternative paradigm is that the point of a preliminary injunction is to preserve the court's power to decide the case. And yet another premise, but one the court does address in another part of the opinion, involves state standing.
  3. The court pushes hard the APA argument and D.C. Circuit precedents. In a footnote the court even toys with the idea that national injunctions are required in APA cases. But the APA argument for the national injunction is strong on the basis of fairly recent lower-court precedent, and it's much weaker as a matter of first principles. To my knowledge, no decision basing a national injunction on the APA has taken seriously the counterarguments. (For a roundup of sources, including my arguments, skepticism by Chris Walker, and analysis by Ron Levin, see this post.)
  4. Taken together, the two opinions–one opting for an injunction that applies in the territory of the plaintiff states, and the other protecting the plaintiff states with a national injunction–reveal one of the deep questions underlying the surge in national injunctions. What interests do states have standing to vindicate in the courts? Are they representing their own pecuniary and proprietary interests? Their own sovereign and dignitary interests? The interests of their people? (Side note: consider a possibly parallel question of the constitutional interests that corporations may vindicate, as explored here by Adam Winkler–that these might be conceptually parallel tends to be missed, and I haven't seen any "States aren't people" bumper stickers.) The idea of state standing to bring all these challenges–and I mean the ones against the Obama administration and the ones against the Trump administration, what's good for the Republican goose is good for the Democratic gander–is itself in tension with traditional equitable practice. It's no accident that Massachusetts v. Mellon and Frothingham v. Mellon were companion cases. In the long run, they may live or die together.