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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.



NEXT: 8 Cases Everyone Should Know from the Hughes Court

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  1. I had to look up the word "efflorescence" which is
    (in chemistry) "the migration of a salt to the surface of a porous material, where it forms a coating. The essential process involves the dissolving of an internally held salt in water, or occasionally in another solvent."

  2. "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."

    This seems like a bit of a stretch to me (although the district court appeared to believe the broader injunction was appropriate). If they were dismissing the case on standing grounds, was there really a need to get into the propriety of the scope of the injunction?

    1. It is not definitive evidence in support of injunctions, but the Court also talked about other stuff that was of no moment ("vital industry"). If you can scold a lower court for not recognizing a standing problem early on, why not scold them for issuing an overbroad injunction?

      1. "why not scold them for issuing an overbroad injunction?"

        Because they are lazy? Because they didn't bother to think about whether or not it was overbroad? Because they didn't want to be that mean? Because they weren't sure whether or not it was overbroad? Because they didn't think it was overbroad? There are any number of reasons, not all of which are consistent with them believing that the injunction was not overbroad.

        But, as I noted, the district court seemed to think it was okay, so I agree that the case is at least some evidence in favor of .Mila Sohoni's position. I'm just not a big fan of drawing conclusions from what the court didn't say when it didn't have to say something to get to the same result it did.

  3. The 1890s through 1940s? No earlier?

    It's accordingly completely uncontested that the nationwide injunction is an innovation? That it is completely unsupported by law and practice in the eras when the Constitution and Bill of Rights or the Reconstruction Amendments were adopted? That it is instead a fruit of the same intellectual era that produced such judicial gems as supporting state-imposed segregation on interstate commerce, imprisoning people for publishing flyers encouraging draft resistance, and rounding up and detaining undoubted US citizens in concentration camps on the basis of ancestry?

    1. For your information, there's no principle that says that judges have only those powers that were supported by law and practice at the time the Constitution or a particular constitutional amendment was adopted. For instance, the modern class action was not invented in 1787, and yet nobody contends Article III judges do not have the power to hear class actions or to order class-wide relief.

      As for the rest of your comment, yes, lots of good legal principles were developed at a time when other bad doctrines were still in place. That's how the common law system works- we develop better legal principles over time through an interative process.

      1. I think a lot of people would question whether they would have that power to in the absence of a rule expressly authorizing it.

        1. Congress gave the courts to power to enact rules [subject to congressional veto] by statute. For once, the courts did just not authorize themselves.

  4. These discussions are somewhat interesting. Thank you.

    1. No name-calling? No insult hurling? Thank you.

  5. I can see the arguments for presumptions against national injunctions, but I don't see the argument for "no injunction except as conduct directed at one of the parties".

    For one thing, it should be very clear that an appellate court can issue such an injunction. Let's say the Supreme Court rules that law X violates the First Amendment. That basically means that every act enforcing that law is now unconstitutional, throughout the country. Any doubt the Supreme Court can issue an injunction saying you can't enforce law X with respect to anyone?

    Well, this same principle applies to state Supreme Courts and federal Courts of Appeal, and to state intermediate appellate courts with jurisdictional districts. In each case, the law is made with respect to some geographic region and there's no reason the court shouldn't be able to enjoin anyone from violating its announced rule throughout the jurisdiction.

    So the only thing you have left are trial courts. But what, exactly, is the problem with trial courts doing it. It isn't jurisdictional- a trial court has the power to impose restrictions on the conduct of the defendant, adjudicated to be unlawful. Is it standing? But if it's standing, then why is it any different from a class action or any other form of representational standing? So long as the parties to be benefitted are similarly situated, what's the objection?

    1. "But what, exactly, is the problem with trial courts doing it."

      Forum shopping for one. All those cases filed in Hawaii or California are not just coincidence.

      Differing decisions from peer courts is another. Multiple plaintiffs file cases in different courts. No injunction in one, injunction in another. Why should the judge issuing the injunction be able to in effect override the other judge's decision?

      1. It is even worse than that. Assuming you could line up the necessary plaintiffs, you could file simultaneously in all 94 US District Courts. You could go 1-93, and still get your national injunction.

      2. The forum shopping argument is a reasonable argument against national injunctions. But it isn't a reasonable argument for saying courts have no power to bind the defendant with respect to conduct not directed at this plaintiff.

  6. There are specific rules governing class actions that are designed, among other things, to determine whether and to what extent a class should be certified and so entitled to relief. No such rules exist governing the propriety or scope of universal injunctions. Each trial court judge is free to do as he or she wishes. Sam Bray's article, cited above, or Bill Barr's op-ed in the Wall Street Journal both describe the several ways in which universal injunctions issued by a single trial court judge are otherwise a problem.

    1. Why can't the courts just generate specific rules with respect to when broader injunctions are justified?

      I mean, if this all gets back to "conservatives hate that federal judges have all this power", well, Article III gave them tons of power.

  7. Remember folks that Comrade Pelosi just said no one is above the law. No exceptions. Well except apparently illegal immigrants. Can't touch them. Or now relatives of Biden that steal taxpayer money. But other than that no one is above the law...

  8. Once a law or executive policy has been found unconstitutional after a trial, it is unconstitutional wherever the court has jurisdiction. I see a difference between preliminary injunctions and final ones at the close of judicial proceedings.

    1. I don't think that is true. I always thought that District Court cases were only persuasive authority, even within the same District.

  9. I would be very surprised if the Founding Fathers believe an inferior court judge could issue an injunction that would extend past the judicial district in which he or she heard cases. I am perfectly fine with a judge issuing a nationwide injunction that supports the policy objectives I support. But like everyone else I don't think I would like one that negates the policy objectives I support. A question I would have for the progressives whowere perfectly happy with nationwide injunctions against the Donald's many ridiculous policies is what what they would think if a federal judge issued a nationwide injunction prohibiting abortion. I suspect they would say that judge has no authority to issue a nationwide objection. Not based on Article III of the Constitution but based on their beliefs about the propriety of the policy choice.

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