The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
What's Missing in Washington v. Azar
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).
