The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
That did not take long. Today the U.S. District Court for the Southern District of Texas issued the first national injunction against the Biden administration. The order, to be precise a national TRO, prohibits the administration from enforcing and implementing its "100-Day Pause on Removals."
The rationales given for the nationwide scope are a mix of (1) circuit precedent (correct); (2) immigration needs uniformity (a bad argument but widespread, and previously invoked by both the 5th and 9th Circuits); (3) concern about interference with Congress's "integrated scheme of regulation" (the sort of concern that would make national injunctions a default remedy in challenges to federal policy); (4) a footnote invoking case law on the APA (a point supported by lower court precedent, though wrong as a reading of the APA, as John Harrison has shown); and (5) a concern that without a national injunction Texas would be affected by the movement of immigrants within the United States (a point that is a reminder of how close the connection is between overly aggressive remedies and overly aggressive theories of state standing–Massachusetts v. Mellon and Frothingham v. Mellon may stand or fall together).
The court is open to narrowing the injunction after further briefing.
There are two takeaways. The first is that the national injunction has now just jumped the partisan divide, and it will begin to be used as a tool of conservative litigants and red-state attorneys general to challenge the Biden administration. No surprise. But the national injunction remains every bit as much a malformation of the law of remedies and the law of equity–and a striking departure from the dispute-resolution vision of the federal judicial role in cases like Frothingham. (And, just as before, the national injunction is consistent with a quite different vision of the federal judicial role, one that emphasizes the declaration of law and takes literally the "striking down" of statutes, regulations, etc.)
The second takeaway is that the national injunction has become entrenched in circuit precedent in some circuits, which increases the need for the Supreme Court (or Congress) to act. Here's to hoping that 2021 is the year the Supreme Court inters the national injunction.