The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Judge Sutton Strikes Again on the National Injunction
Earlier this week, a panel of the Sixth Circuit Court of Appeals decided Arizona v. Biden. The context of the case is immigration law: three states (Arizona, Montana, and Ohio) had sued to obtain an injunction blocking the Department of Homeland Security from implementing a memorandum about enforcement priorities. The district court issued a preliminary national injunction; the panel of the Sixth Circuit reversed.
The opinion of the court was delivered by Chief Judge Sutton and joined by Judges Moore and Cole. Chief Judge Sutton also wrote a separate concurrence for himself, and he returned to the question of the propriety of national injunctions and "universal" relief under the Administrative Procedure Act. It's on pages 23-28 here.
This is the second time in this case that Chief Judge Sutton has written a separate concurrence that highlights the legal infirmities of the national injunction (or "nationwide injunction," "universal injunction," etc.). In April, the same panel issued a stay of the district court's preliminary national injunction (Chief Judge Sutton's opinion concurring in the grant of the stay begins on page 18 here).
This new concurring opinion adds a section on the provision limiting injunctions about certain immigration laws (8 U.S.C. § 1252(f)(1)), a provision that was recently at issue in Biden v. Texas at the Supreme Court. The concurring opinion then reiterates Chief Judge Sutton's critique of national injunctions, adding two new points.
First, in critiquing the idea that "set aside" in the APA authorizes universal relief, Chief Judge Sutton adds this point:
Observe as well that the statute does not say against whom an unlawful agency action must be "set aside." In the context of a law authorizing identifiable "person[s]" "aggrieved by agency action" to seek judicial review, 5 U.S.C. § 702, we should not lightly conclude that a court is entitled to "set aside" agency action against persons not privy to the case before it.
Second, there is a new critique by Chief Judge Sutton of any attempt to legitimate the national injunction by appealing to the English bill of peace:
What of the English courts' use of a "bill of peace" at the founding? Does that permit a contrary, and historically grounded, justification for nationwide injunctions? At common law, this device allowed courts to resolve multiple suits involving common claims, say with several tenants suing one [land]lord. Bray, supra, at 426. In one sense, it is true, bills of peace allowed English courts to adjudicate the rights of members of dispersed groups without formally joining them to a lawsuit through the usual procedures. See id.; Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065, 1080–81 (2018). But this observation tees up the question rather than answering it. Question: Does the bill of peace have a modern analog? Answer: Yes, class actions under Civil Rule 23. Bray, supra, at 426. Nationwide injunctions depart from, they do not embrace, traditional equity practices incorporated into the Federal Rules of Civil Procedure. The domesticated animal known as a bill of peace looks nothing like thedragon of nationwide injunctions. A bill of peace applied to small, cohesive groups. And because it was representative in nature, any decision, win or lose, bound any nonparty members of the group to the judgment. Id.; Michael T. Morley, Disaggregating Nationwide Injunctions, 71 Ala. L. Rev. 1, 36–37 (2019). Not so for today's asymmetric, applicable-against-the-world injunctions. Use of the common law bill of peace to justify today's nationwide injunction gives analogy—and history—a bad name.
This concurrence will now be a standard source on what's wrong with the brave new world of national injunctions. The national injunction is not going away; it continues to drive and distort our judicial system. But there have now been trenchant judicial critiques of the national injunction by Justices Thomas and Gorsuch and Judges Bress, Bybee, Manion, Stras, Sutton, and Wilkinson. It's time for this weed to be pulled up from the garden of the law.
