National Injunction Case Added to the Court's Docket

National injunction deja deja deja vu?

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This morning, for the fourth time in the last two decades, the Supreme Court of the United States has granted certiorari to address the legality of the national injunction. The case is Wolf v. Innovation Law Lab (SCOTUSBlog's case page is here). The injunction question–"whether the district court's universal preliminary injunction is impermissibly overbroad"–is the fourth of the four questions presented.

The panel decision below was by Judge Fletcher. After noting that "nationwide injunctions have become increasingly controversial" and arguing that the district court's injunction in the case was not truly national (just the southern border), Judge Fletcher gave two reasons for affirming it: the APA and immigration exceptionality.

The immigration exceptionality argument is very weak as a matter of constitutional text and history–"an uniform rule of naturalization" is not a synecdoche for uniform immigration law, much less uniformity in judicial remedies in cases related to immigration. I suspect that this reason only shows up as much as it does because of its invocation by the Fifth Circuit in the waning days of the Obama administration, which has made it a convenient citation over the last four years. (This is not to fault Judge Fletcher's use of it; that the case occurs in an immigration context has now been repeatedly cited by the Ninth Circuit as a rationale for national injunctions, as can be seen in this review of the Ninth Circuit's recent national injunction cases by William Yeatman.)

By contrast, the APA argument given by Judge Fletcher is the serious one, with serious points to be made on both sides. The leading pieces are by John Harrison (short version here) and Mila Sohoni. My own view is that the APA text and context cut strongly against national injunctions, and that the best support that can be mustered for them is more recent lower court precedent and practice. The brief filed by Nick Bagley and me in the last national injunction case at the Court, which also arose under the APA, is here. (Goes without saying, but the position Nick and I take on the national injunction has nothing to do with who is president.)

If you've followed the recent national injunction cases in which the Court granted cert, or the one from over a decade ago (Summers v. Earth Island Institute), you probably know why the Court grants these cases but then doesn't resolve the national injunction question: the remedies question comes last, and in each case the Court has resolved the merits in a way that means it doesn't reach the question of remedy. Whether that will happen again is a question I leave to those with more expertise in the substantive law implicated by Wolf v. Innovation Law Lab.

NEXT: Today in Supreme Court History: October 19, 1789

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  1. “The immigration exceptionality argument is very weak as a matter of constitutional text and history–”an uniform rule of naturalization” is not a synecdoche for uniform immigration law”

    This is a total falsehood. Scalia claimed this, and as usual, he was both dumber than he thought of himself and full of his own BS.

    Congressional powers get a broad interpretation. OF COURSE the point of this power grant was to allow Congress to create rules to ensure that people wouldn’t be legal in one state and illegal in another.

    In any event, once the 14th Amendment was passed, this was crystal clear. Deciding who is lawfully in the country was a federal power, because a state taking this power would deny persons within its jurisdiction the equal protection of the laws.

    1. Ken yee nae see the difference between “naturalization” and “immigration”? Ken yee nae see that two different words have different meanings, and where one was chosen, the other was not?

      1. That’s exactly the sort of sophomoric analysis Scalia engaged in.

        1. I see, you only got through the freshman year, and never learned the sophomore trick of distinguishing two different words with two different meanings, neither of which is a subset of the other.

          1. Actually, I took the next class and learned that the dictionary definitions of two words is a really simplistic method of interpretation.

        2. Say, here’s an idea. Why don’t you try to explain why those two different words actually mean the same thing?

          Perhaps you’d rather just insult people. See, I can do that too, in addition to asserting they are two different words with two different meanings.

          1. I actually explained exactly why the Constitution, taken as a whole, shows that the Congressional power in this area is expansive.

            The problem is that Simplistic Scalia lied to you that this stuff is easy and all you have to do is pull out the dictionary, so you didn’t understand it.

  2. “The immigration exceptionality argument is very weak as a matter of constitutional text and history–’an uniform rule of naturalization’ is not a synecdoche for uniform immigration law, much less uniformity in judicial remedies in cases related to immigration.”

    “And what do you call your act?” “the Textualists!”

  3. BTW, congratulations to these guys for getting cert with 4 questions presented. That’s hard to do.

  4. If new justices arrive at the Supreme Court next spring, how likely would participation by those justices be with respect to cases whose petitions are being granted now?

    1. If “ifs” and “buts” were candy and nuts, we’d all have a Merry Christmas.

      1. Or happy holidays.

        Season’s greetings!

  5. I find the term “universal injunction” to be impermissibly overbroad.

  6. January 2021 – US District Court for West Virginia issues nationwide injunction staying national mask mandate.

    February 2021 – 4th Circuit Court of Appeals upholds injunction.

    Spring 2021 – Democrats, “national injunctions violate the Constitution and are holding up democracy…the Supreme Court should hear this case and curtail this misused practice…”

    Trump sitting in UK – “Tell me about it…”

    1. Trump will have to move to Russia. The UK has extradition treaties with the U.S.
      On the last full day of his presidency he will order Air Force one to fly him, one-way to Moscow.
      You heard here first

      1. Biden isn’t going to prosecute Trump because he doesn’t want to set the precedent for his own sake…

        1. Biden does not have to. Multiple states will do the deed for him.

  7. Moreover Pres. Harris is going to want to string DJT up.

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