The latest on the national injunction at the Supreme Court

SCOTUS amici versus John Harrison


Among the cases that are at the Supreme Court this term is Trump v. Pennsylvania, consolidated with Little Sisters of the Poor v. Pennsylvania. One of the questions presented is about the scope of the injunction. Nick Bagley and I submitted an amicus brief almost two months ago, and when posting about it here at the Volokh Conspiracy I mentioned that I would call attention to any opposing briefs on this question. My apologies for not being able to do that sooner. In this post I'll also mention an important new contribution to the debate by John Harrison: "Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies."

Here, then, are the amicus briefs on the other side that devote substantial space to the injunction question:

  1. Twenty states and the District of Columbia filed an amicus brief that argued, among other things, that the scope of the injunction was consistent with equitable principles and the APA.
  2. Zach Clopton, Amanda Frost, Suzette Malveaux, and Alan Trammell filed an amicus brief that defends nationwide injunctions with arguments from the history of equity (including the bill of peace and privity), the history of writs at common law (e.g., mandamus), and preclusion doctrine. Two notes. First, in my view mandamus has a different logic than the injunction, not focused on protection of the plaintiff and those represented by the plaintiff, but rather focused on the officer's duty, and it has its own distinctive limiting principles (e.g., only ministerial duties). Second, the brief relies on an amicus brief filed in 2018 in the Seventh Circuit sanctuary city case by some extraordinarily able legal historians. That brief is available here, and I responded in this post and this post.
  3. Mila Sohoni's amicus brief focuses primarily (but not exclusively) on the APA, concluding that it authorizes "courts to issue nationwide injunctions" and that this authorization "not only is constitutional but squares entirely with the traditional equity practice." On the 1937 statute, compare Professor Sohoni's discussion with Professor Harrison's.
  4. Public Citizen's amicus brief argues for "nationwide relief [as] the ordinary remedy" under the APA.
  5. The Public Interest Law Center and affiliated lawyers' committees filed an amicus brief arguing that nationwide injunctions are consistent with historic equity, both English and American, even before 1789.
  6. An amicus brief for several state and local government associations, including National League of Cities and the United States Conference of Mayors, argues, among other things, that nationwide injunctions have become accepted in current doctrine.

In addition to these amicus briefs, there is coverage of the scope of the injunction the party briefs (available at SCOTUSBlog).

Finally, there's the explosive new argument by John Harrison in his bulletin in the Yale Journal on Regulation. Harrison argues that Section 706 of the APA doesn't authorize universal remedies because it has nothing to do with remedies–that is the job of Section 703. Among other things, Harrison's piece provides the most compelling reading of the 1937 statute that established three-judge district courts and gave them authority to "set[] aside" federal statutes that were repugnant to the Constitution. On Harrison's reading, "set aside" in the 1937 statute and in the APA does not mean "strike out" or "vacate" or even "reverse" but rather "set to one side," "put to the side," "ignore for purposes of deciding the case." If you want a taster course, Harrison posted a shorter version of the argument at the Yale Journal on Regulation's Notice & Comment blog. Harrison's argument is also cited by the Solicitor General.

If you're interested in the national injunction or the APA or both, there's plenty to read.

NEXT: No, the Kelo Case Doesn't Require Takings Compensation for Businesses Closed by Coronavirus Shutdown Orders

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  1. This is more of a “good government” argument than a legal one, but if you have 94 Federal District Courts, each with national jurisdiction, it’s not going to be long before you have utter anarchy.

    1. Not necessarily. There are existing structures to deal with multidistrict litigation. If the federal court system felt this was a significant problem they could certainly start routing cases that sought national injunctions through that process.

    2. That is what the Left would like and how they want power. A multi-headed hydra, each as powerful as the next. All they need is one District Court, and really one Circuit Court, and they can hold up just about anything.

  2. I had thought the arguments against universal injunctions were based on the preliminariness of proceedings before a full trial on the merits and the limited jurisdiction of inferior courts. Professor Harrison seems to be saying that if the Supreme Court affirms a decision striking down a law after a full trial below, prosecutors are free to ignore the decision until their local court specifically enjoins them. That can’t be right.

  3. I don’t have to follow the laws of a state where I do not live. Why do I have to pay attention to rulings of district courts where I do no live?
    How does a district judge on one coast gain power over citizens on the other coast?

  4. I wonder how quickly the Left will sour on national injunctions if they say regain the White House in November and a solid Trump bolstered judiciary throws constant roadblocks up to their initiatives endlessly for the next four year.

    1. It is motives, not process that count.

    2. Based on what I’m seeing in these comment threads, I’m not sure if the left is red-hot on national injunctions even now.

      1. Looks like some Amazon workers rang Bezo’s doorbell this morning. Are you going to engage is some gnashing of teeth here over this.

        1. “Police were at the scene, but kept their distance from the group of nine demonstrators, said to be from the Shutdown DC climate movement and Virginia immigrant rights group La ColectiVA.”

          I have a problem with that — unless DC wishes to make it’s streets a public forum and let everyone paint them. This includes the pro-lifers painting the street in front of the abortion clinics…

          1. Sarcastro spilled a good bit of ink equating me suggesting that Kirkland might want to rethink his aggressive, bigoted, and hateful opinions because one day he might get called out for them. (I did so in saying he might “get his doorbell rang” one day). Sarcastro made the oh so logical leap that this must be a “death threat” (I literally said “get his doorbell rung” and nothing else). And then proceeded to continue the accusation for another dozen comments.

            Well now that we have an actual situation where some “activists” have done it to Bezos. I would love to hear his thoughts on the matter.

  5. Just in case there might be a lot of confusion over the number of primary colors you would need for the 20 states in favor of their judges having the power to tug the marionette strings of the entire country:


    1. Hmmm…I’m gonna go out on a limb and guess: Blue.

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