The Volokh Conspiracy
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Today, the Acting Solicitor General filed an emergency application with the Supreme Court to vacate the 5th Circuit's stay of the District Court's injunction against S.B. 8.
Circuit Justice Alito requested a response by Thursday. My prediction: the Court grants cert before judgment, and hears the case this term. I do not think there are five votes for a stay. The easiest reason to deny a stay: the United States lacks an equitable cause of action under Grupo Mexicano. I already explained that the Garland DOJ departed from its longstanding position on Grupo Mexicano. Here, the Acting SG has advanced yet another interpretation of Justice Scalia's majority opinion.
Texas has asserted (e.g., C.A. Reply Br. 4) that the government's suit is inconsistent with Grupo Mexicano de Desarrollo S. A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999). But Grupo Mexicano simply stands for the proposition that the equity jurisdiction of the federal courts does not authorize them to grant "a remedy" that was "historically unavailable from a court of equity." Id. at 333. Unlike the novel form of preliminary relief sought in Grupo Mexicano, the remedy the United States seeks here -- an injunction against enforcement of an unconstitutional statute -- falls squarely within the history and tradition of courts of equity. See Armstrong, 575 U.S. at 327.
The government, like Judge Pitman, conflates equitable jurisdiction with equitable remedies. The SG couldn't even be bothered to quote from Justice Scalia's opinion! The key word is "equity jurisdiction."
Moreover, Congress's grant of equity jurisdiction to the federal courts is limited to the relief that "was traditionally accorded by courts of equity," and thus a "substantial expansion of past practice" is "incompatible with [the courts'] traditionally cautious approach to equitable powers, which leaves . . . to Congress" such policy judgments. Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S.308, 318-19, 329 (1999). Given the manifest separation-of-powers concerns here, Congress must decide whether to provide the Committee with the unprecedented right to sue to enforce a congressional subpoena seeking testimony from an individual on matters related to his duties as an Executive Branch official serving as a close advisor to the President.
Before a court can decide if it can issue a particular equitable remedy, it must first have equitable jurisdiction. And there is no history of the federal government suing a state in federal equitable jurisdiction. Congress can always create such a cause of action. But it did not exist at common law.
Seth Barett Tillman and I discuss this all-too common conflation in our new article, forthcoming in the Georgetown Journal of Law & Public Policy:
Article III of the Constitution gave the federal courts jurisdiction over both law and equity. And in equity, there is a distinction between equitable relief and equitable jurisdiction. Litigants often conflate these concepts. Moreover, litigants likewise conflate causes of action grounded in law with equitable causes of action. In the Emoluments Clauses litigation, the plaintiffs did not assert a traditional equitable cause of action that established federal court jurisdiction. The Supreme Court has not recognized a free-floating equitable cause of action to challenge ultra vires government conduct. . . . .
In the Emoluments Clauses litigation, the plaintiffs contended that the federal courts had equitable jurisdiction to enjoin ultra vires government conduct. For example, the Maryland and D.C. Attorneys General argued that "'[t]he ability to sue to enjoin unconstitutional actions by state and federal officers'" is "'the creation of courts of equity,'" and reflects "'a long history of judicial review of illegal executive action, tracing back to England.'"239 The plaintiffs invoked the term "equity," as if seeking an equitable remedy establishes the equitable jurisdiction of the District Courts. (See p. 36, 39)
Moreover, the type of equitable remedy DOJ is seeking is far cry from the sorts of injunctions granted at common law. Private parties have long been able to seek an injunction against state officers for the purported violation of individual rights. But there is no precedent for the United States to seek an injunction against a state for the purported violation of individual rights.
For what it's worth, Justice Scalia wrote Grupo Mexicano in OT 1998. And Justice Barrett clerked for Justice Scalia in OT 1998.