The Mask-Mandate Remedy

Whether someone praises or disdains today's decision vacating the mask mandate is likely to be driven by what the person thinks of the merits of mask mandates. But remedies matter too, and we should be able to think about them without merits-driven analysis. This decision from the U.S. District Court for the Middle District of Florida is one more in a series of highly consequential district decisions that are, or at could be considered, national injunctions. That "could be considered" caveat matters here, for reasons that will become clear.

A few thoughts on the remedy:

First, the opinion works through different arguments but places central reliance on circuit precedent in favor of vacatur of rules under the Administrative Procedure Act. I think the position reflected in those precedents is wrong. But for a district court, that's the safest ground to locate this remedies decision.

Second, the current stage we're in is one where district courts routinely give national injunctions, but usually with some hand-wringing about their existence. Here we have the conventional concern: "the Court recognizes the criticism about nationwide injunctive relief and admittedly shares some of the skepticism about it" (p. 55).

Third, the current stage is also one where the courts are wrestling with whether to draw a sharp distinction between APA and non-APA remedies, and specifically with how to handle  "vacatur" and "injunction." With the possible exception of footnote 4 on p. 56, this opinion strongly separates the two and says this is vacatur not an injunction, and it also emphasizes that it's not a preliminary injunction but rather a remedy after a judgment on the merits. Even so, the court addresses arguments and cites authorities related to national injunctions, so the two remedies get somewhat intertwined.

(How this question gets resolved is going to be very consequential, because "vacatur" is not a traditional equitable remedy, and so if a wedge is driven between it and the injunction then it isn't clear that the various equitable considerations that govern the latter have relevance for the former, as well as the flexibility courts have to phase in or phase out injunctions or to condition them on other actions. But that's another discussion . . . .)

Given the attempt to put this remedy just in the "vacatur" box, it's understandable that the court would rely on the circuit court precedent in favor of vacatur of a rule as to all people and not just the parties. But the court never addresses the question of whether this is actually right. John Harrison's powerful arguments that there is no "set aside" remedy under the APA–the "set aside" language is not even in the APA section on remedies–need to be considered. The leading analysis on the other side is Mila Sohoni's recent APA article.

Judge Sutton made an important point about this question in his concurrence last week in Arizona v. Biden:

The Administrative Procedure Act, it is true, says that a reviewing court may "hold unlawful and set aside" agency actions that violate the law. 5 U.S.C. § 706(2). But that raises a question; it does not answer it. The question is whether Congress meant to upset the bedrock practice of case-by-case judgments with respect to the parties in each case or create a new and far-reaching power through this unremarkable language. We presume that statutes conform to longstanding remedial principles. Nken v. Holder, 556 U.S. 418, 433 (2009); Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982). And it is far from clear that Congress intended to make such a sweeping change. Compare Bray, supra, at 438 n.121; and John Harrison, Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies, 37 Yale J. Reg. Bull. 37, 41–47 (2020); with Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1191–92 (2020). Use of the "setting aside" language does not seem to tell us one way or another whether to nullify illegal administrative action or not to enforce it in the case with the named litigants. For that reason, I would be inclined to stand by the long-understood view of equity—that courts issue judgments that bind the parties in each case over whom they have personal jurisdiction.

Perhaps it's understandable for a district court to stop with controlling circuit court precedent, at least if it weren't such a significant case. But the circuit court judges–and certainly the justices–should think about whether this approach has any basis in the text, structure, and historical context of the APA.

Fourth, I have referred to the court's reliance on circuit precedent, but there is one eyebrow-raising citation to a recent Supreme Court case (from p. 54): "see also Barr v. Am. Ass'n. of Pol. Consultants, Inc., 140 S. Ct. 2335, 2351 n.8 (2020) (explaining that, when 'a provision [of law] is declared invalid[,]' the invalid provision 'cannot be lawfully enforced against others'–not just 'against the plaintiff')."

There are several problems with this citation. It's not an opinion of the Court; this part is the opinion of only three justices, and that should have been indicated. Moreover, this footnote is not about the APA but is about statutes and severability, so as support for an APA-specific argument it proves too much. Additionally, the cited footnote from Barr is careful to talk only about the implications of the Court itself–the Supreme Court–deciding that a provision of a statute is unconstitutional. There is a huge missing premise that district courts are like the Supreme Court for this purpose. Finally, and perhaps most significant, although the footnote distinguishes two views of severability (the plurality's and Justice Thomas's), it is at pains to treat them as "different paths" that "in many cases . . . lead to the same place." The footnote cites the major canonical cases for saying that a judicial decision does not erase an unconstitutional statute. The footnote is carefully hedged, but it arguably provides just as much reason to reject the district court's remedy of vacatur as it does to support it.

Fifth, the court gives as an "independent reason" for vacatur of the rule that doing so "is necessary to grant complete relief." It is a canard that equity requires courts to give complete relief to plaintiffs. A court of equity can do so, and it sometimes goes to great lengths to ensure that the injustice against a plaintiff is righted. But equity has a myriad of reasons not to do that, including the conduct of the plaintiff, the difficulty of enforcement, the balance of hardships, all the principles reflected in the equitable maxims, and so on. Here's the way I put it on p. 468 of Multiple Chancellors (and footnote 297 has supporting citations):

Finally, the complete-relief principle hardens the remedial choices of equity, treating the equitable remedy as corresponding precisely to the underlying right. To the contrary, the scope of an equitable remedy is not at all automatic. There are a number of situations in which equitable remedies go beyond, or stop short of, the strict right of the plaintiff.297 Equity is concerned with justice not only for the plaintiff but also for the defendant.298 Complete relief is thus the starting point for equitable relief, but it is not and never has been the sole desideratum for the scope of equitable remedies.299

The court's argument on this point depends entirely on the proposition that it's too hard for the government to distinguish the plaintiffs from other travelers. That may be true, and that may be a reason the government would prefer to withdraw the mask mandate entirely instead of enforcing against everyone but the plaintiffs, at least during the pendency of appeals. But that decision isn't the district court's to make. Judge Sutton's concurrence in Arizona v. Biden addressed this point: "Relatedly, the district court worried that the Guidance could not 'be applied on a state-by-state basis.' R.44 at 78. But that is initially the National Government's problem, not ours, and it indeed acknowledged that severed policy enforcement remains a feasible alternative."

And it's not even clear from the court's opinion how many plaintiffs there are. Footnote 5 simply says that the court takes judicial notice that the organizational plaintiff "has members throughout the country." If the propriety of a national remedy turns on this factual premise, given how significant this case is, we should at least know what the factual premise is. But regardless, this decision about administrative feasibility for non-parties is one that should belong, at least in the first instance, to the government–the court's job is to give a remedy to the plaintiffs.

Much more could be said on the remedies front about this case, including the lack of a stay pending appeal and the question of the role of the declaratory judgment. But this post is overlong. I'll close with this point–this is a deeply broken system. Amid this pandemic that has killed hundreds of thousands of Americans, not to mention millions around the world, there are strong disagreements about the best policy at any particular point in time. These decisions inevitably entail not only scientific judgments but also political judgments about tradeoffs and cost, all of which should be subject to Bayesian updating. There are strong disagreements about who is the constitutionally right actor to make these policies in various settings (i.e., the national government or the states). There's plenty of room for disagreement on the policy questions and the institutional questions. And it can be the duty of federal courts, in deciding the cases before them, to decide whether an agency has outrun its legislative authorization to make these decisions (as the court decided in this case). But it is a deeply broken system when the action and inaction of the various federal actors–House, Senate, President, agency reporting to the President–can be immediately swept aside by a single district court judge who chooses a remedy that is not only for the plaintiffs but for everyone.

This isn't the way it worked for most of our history. None of the Founders could have imagined this. Brutus, the Antifederalist critic of federal judicial power, was apoplectic when he thought about the federal courts having equity jurisdiction–can you imagine what he would have said if he thought this was even a possibility? Nor is this the way it worked when the APA was enacted. It doesn't have to be this way.

But it will stay this way if conservatives object to "nationwide" remedies only against Republican presidents, and liberals object to them only against Democratic presidents. Selective outrage and what-about-ism on the other side's inconsistency are a recipe for continued stalemate. If you object to these remedies on principle, stick to your principle, no matter who is President and no matter what you think of the merits.