National Injunction Developments

New opinions from the Fourth and Ninth Circuits


There are two developments of note.

First, there has been a steady stream of national-injunction-related decisions out of the Ninth Circuit. The Notice & Comment blog has a review (by William Yeatman), and it notes that two lines of doctrine are developing about national/nationwide preliminary injunctions in the Ninth Circuit. In one line, these injunctions are justified by appeals to the need for uniformity in immigration law, the APA, and the breadth of possible harms to an organizational plaintiff. In the other line, these injunctions are viewed skeptically because they interfere with percolation in the federal system and go beyond what is needed to remedy the harms to the plaintiff.

(The only criticism of the Notice & Comment post I would venture is that the pro-national-injunction opinions, including at least one opinion by Judge Fletcher, sometimes go out of their way to suggest that the injunction being granted is not really national in scope. Whether that is salutary modesty and precision about the scope of the remedy, or an indication of the doubtfulness of the legal foundation of national injunctions, or both, is a question I will leave to the reader.)

Second, Judge Wilkinson of the Fourth Circuit has an opinion in Casa de Maryland, Inc. v. Trump that lays out clearly and at length the arguments against the national injunction (pp. 56-70)--as a matter of constitutional principle, equitable doctrine, and judicial policy. It is now probably the leading opinion from the lower federal courts against the national injunction. On the other side, a leading opinion from several months ago is by Judge Howell, chief judge of the U.S. District Court for the District of Columbia, in District of Columbia v. U.S. Department of Agriculture (pp. 68-84). Both the opinions of Judge Wilkinson and Judge Howell show how this question is not a narrowly technical one about remedial mechanics, but is instead downstream from different views about the nature of judicial authority and the judicial duty.