The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Solicitor General has filed an application for a stay with the U.S. Supreme Court. The requested stay would be of a judgment entered by the U.S. District Court for the Southern District of Texas, but the real showdown here is between the Fifth Circuit and the Sixth Circuit. Last week they issued directly contrary decisions in cases about the Department of Homeland Security's September 2021 guidance about the enforcement of immigration laws. The issues include state standing, the agency's process for generating the enforcement guidance, the Section 1252(f)(1) jurisdiction-stripping provision, and universal relief (whether via a national injunction or the so-called remedy of "vacatur"). You can read the Fifth Circuit decision here, the Sixth Circuit decision here, and my recent Volokh Conspiracy post on the Sixth Circuit decision here.
This could be the big one--it could set up a Supreme Court decision about universal relief (i.e., relief that goes beyond the parties to the case, not just incidentally, but because the court is purporting to control the actions of the defendant vis-a-vis the world). Now there are various off-ramps that could mean the Court doesn't actually address whether district courts can give national injunctions or a remedy of "setting aside" agency action. For example, the agency could win on the merits, making the remedy question pointless. Or the Court could decide that the Southern District of Texas lacked jurisdiction under Section 1252(f)(1). (This kind of thing has happened several times before when the Court has granted certiorari on questions about "nationwide" relief, including Summers v. Earth Island Institute, where the cert petition was by S.G. Clement.) But if the case runs the procedural gauntlet and gets to the remedy, it would tee up the universal relief question for the Court.
General Prelogar's application for a stay is excellent. I want to add three comments:
- Massachusetts v. Mellon (with its companion case Frothingham v. Mellon) is cited twice in the application, and it shows just how deep the constitutional principles involved are. These are principles about separation of powers and federalism—that is, principles about the federal judicial role, including the interaction of constitutional and equitable limits and how a court interacts with a promulgated legal norm and with its enforcer; and principles about how under our Constitution the national government relates to individual citizens (i.e., directly, and not just through the states). A failure to heed these lessons has landed us in the position we're in where national injunctions have become pervasive (though only in the last eight years).
- The application successfully distinguishes Massachusetts v. EPA. But we shouldn't let that case off the hook. I don't think it's an accident that the meteoric rise of the national injunction happened only after the loose talk about standing in the majority opinion in Massachusetts v. EPA. It would be good for the Court to correct that mistake, or at least to make clear that the case is an outlier, just an eddy and not the river.
- John Harrison has an amazing new paper called Remand Without Vacatur and the Ab Initio Invalidity of Unlawful Regulations in Administrative Law, forthcoming in BYU L. Rev. If you're following this case, you'll want to read it.