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Breaking–Professor Mila Sohoni on Article III and the "Universal" Injunction

Does Article III forbid the injunction that protects non-plaintiffs?


This is a big week for everyone interested in the debate over the scope of injunctions against the federal government, because Professor Mila Sohoni of the University of San Diego Law School has just posted her forthcoming article in the Harvard Law Review called The Lost History of the "Universal" Injunction. I'm delighted to offer the readers of the Volokh Conspiracy an entry point for Mila's argument, a post from the author herself! From Mila:

In several recent cases, the district courts have issued injunctions that stop the executive branch from enforcing federal laws, regulations, or policies not just against the plaintiffs, but against non-plaintiffs, too. In his concurrence inTrump v. Hawaii, Justice Clarence Thomas (citing heavily to an influential article by the Volokh Conspiracy's own Sam Bray) contended that such injunctions are a "recent development" and that they depart from "American courts' tradition of providing equitable relief only to parties." Justice Thomas also urged the Court to take up the question of whether such injunctions are proper under Article III, a suggestion that Vice-President Pence and Attorney General William Barr have since echoed.

In a recently posted draft article, The Lost History of the 'Universal' Injunction, 133 Harvard Law Review (forthcoming 2020), I show that Article III courts have issued injunctions that extend beyond just the plaintiff for well over a century. Drawing on decisions by courts at all three levels of the federal judicial hierarchy and on cases involving both state and federal law, I argue that Article III does not forbid injunctions that reach beyond just the plaintiffs.

Let us divide these injunctions into buckets. In the first bucket are those ordered by the Supreme Court concerning federal laws. The Supreme Court itself issued a universal nationwide injunction in 1913, in the months preceding Lewis Publishing Co. v. Morgan, when it enjoined a federal statute affecting newspapers from being enforced not just against the two plaintiff publications but also against "other newspaper publishers" pending its decision in that case. In the following decade, the Court issued two other preliminary injunctions that barred the enforcement of federal laws beyond the plaintiffs (though not universally) within a single, critical judicial district, in the run-up to its decisions in Hill v. Wallace (1921) and Chicago Board of Trade v. Olsen (1923). In one of those cases (Hill), it specified that similarly broad final relief should issue.

In the second bucket are injunctions by lower federal courts concerning state laws.  At least as far back as 1916, three-judge federal courts issued injunctions against the enforcement of state laws that reached beyond the plaintiffs in those suits. When the state defendants appealed these decrees to the Supreme Court, the Court on several occasions affirmed the lower court's injunction, and sometimes did so in single-sentence, unanimous, per curiam decisions. In one famous instance -- Pierce v. Society of Sisters(1925) -- the Court affirmed a universal injunction that barred the enforcement of the Oregon compulsory public-schooling law at issue in that case in a landmark precedent that remains good law to this day. Two other well-known examples are Hague v. CIO (1939) and West Virginia Board of Education v. Barnette (1943), the first of which affirmed an injunction that protected non-plaintiffs in a case concerning municipal law and the second of which did the same in a case concerning state law. A less well-known instance is Langer v. Grandin (292 U.S. 605 (1934)), in which the Court affirmed per curiam an interlocutory injunction barring the governor of North Dakota from exercising authority conferred by a state law to impose embargoes on sales of agricultural products out of the state.

Finally, there is the third bucket: the universal injunction against federal agency action. In 1939, the D.C. Circuit in Lukens Steel v. Perkins enjoined Cabinet-level officers from effectuating a minimum-wage determination for government contractors as to the entire steel and iron industries in a suit brought by a handful of steel companies. When the Court took up the case in Perkins v. Lukens Steel (1940) the Court held that the plaintiffs lacked standing and were thus not entitled to seek any kind of relief; the steel companies' suit, the Court held, "contains no semblance of these elements which go to make up a litigable controversy as our law knows the concept." The Perkins Court emphasized that the D.C. Circuit's injunction had greatly interfered with executive action, observing that "[i]n this vital industry, by action of the [D.C. Circuit], the [Walsh-Healey] Act has been suspended and inoperative for more than a year." But the Perkins Court did not hold—or even say in dictum—that a universal injunction against federal agency action was categorically inappropriate or that it would be improper in suits brought by parties that had standing or in suits that did implicate private rights. To the contrary, the Perkins Court took care to note that the steel companies' suit involved neither "regulatory power over private business or employment," nor an official action that "invade[d] private rights in a manner amounting to a tortious violation," and to distinguish cases that did—including Pierce, which had affirmed a universal injunction as to a state law.

This history of non-plaintiff protective injunctions spans many years, many courts, and many kinds of cases, but its implications for the Article III analysis are straightforward. Federal courts may issue injunctions that protect non-plaintiffs. Article III confers a singular judicial power upon federal courts to decide "cases … in equity." It does not allocate different types of equitable remedial power to courts at different levels of the federal judicial hierarchy. It does not distinguish between injunctions that reach a single district, a single circuit, or every circuit. It does not distinguish between injunctions affecting enforcement of state laws and injunctions affecting enforcement of federal laws. If the Supreme Court can issue a universal injunction against enforcement of a federal law in a suit by a single plaintiff, then so can a federal district court as an Article III matter. If a federal district court can issue a universal injunction against enforcement of a state law in a suit by a single plaintiff, a federal district court must also have the power to issue such an injunction against enforcement of a federal law as an Article III matter. There is only one "judicial power," and that power includes the power to issue injunctions that protect those who are not plaintiffs.

This history also has implications for our understanding of the nature of judicial review and its development.* As Amanda Frost has noted, the current debate over the universal injunction is as much a debate over the proper role of the federal courts as it is a debate over the scope of equitable remedies: "Are courts primarily intended to resolve disputes between the parties, or do they also declare the meaning of federal law for everyone?" To Justice Thomas, the answer is rooted in the historical practice of federal courts: "For most of our history, courts understood judicial power as 'fundamental[y] the power to render judgments in individual cases.'" But by mapping the longer lineage of the universal injunction, my draft shows that, in the period from 1890 to 1943, the law-declaration model animated and guided the actions of federal courts of all stripes as they issued decrees in cases implicating myriad questions of public law. Expanding the frame of our inquiry even this much reveals that the injunction that reaches beyond the plaintiffs—and the law-declaration model of the judicial power that this remedy implies—is not some late-blooming efflorescence of post-Warren Court judicial hubris. Rather, it is a tool that developed in tandem with, and in support of, the regime of routinized judicial review of the legality of state and federal official action that we continue to live under to this day.

Last but not least, I'm very grateful to Sam Bray for his courteous invitation to post about this draft here at the Volokh Conspiracy. I am also indebted to him for his helpful engagement with an earlier draft of this article. Notwithstanding our different perspectives on the subject, Sam could not have been a more gracious interlocutor.

* This history, as well as other materials, also has significance for how we should understand the Administrative Procedure Act, which was not enacted until 1946; I take up that matter in a separate article ("The Power to Vacate a Rule"), which is forthcoming in 2020 in the Annual Review of Administrative Law issue of the George Washington Law Review.