The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

National Injunction Case Added to the Court's Docket

National injunction deja deja deja vu?


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.