The Volokh Conspiracy

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Tentative Thoughts on Biden v. Texas


Two weeks after the Supreme Court term concluded, I finally finished reading all of the opinions. I am still digesting the final case, Biden v. Texas. I don't think I fully understand what the Chief Justice decided, and did not decide. When the Chief wants to be clear, he is very clear. When he wants to be obtuse, no one is better. And I'm not sure what the lower courts should do on remand. Plus, I'm still trying to square this case with the DACA and census litigation, but maybe that is a foolhardy errand. It is a John Roberts special!

I also need to chew on Justice Barrett's dissent a bit, which links the ability to enter relief with subject matter jurisdiction. As we know, all too well, from California v. Texas, if a court cannot enter a remedy, then the federal court lacks jurisdiction. But does the APA "Set Aside" remedy exist as a potential remedy, without an injunction? (I can already hear my friend Sam Bray whispering, "No.")

Finally, lurking in the background is yet another United States v. Texas case. This case, which presents a clear circuit split with the Sixth Circuit, concerns a nationwide injunction of a DHS "guidance" memorandum. The briefing is complete in that case, so we should see the first action from Justice Jackson shortly.

Oh, and by the way, the litigation here will likely spill over past 2024. If district court judges in Amarillo and Victoria lack jurisdiction to enter nationwide injunctions against Democratic administrations, then district court judges in San Francisco and Brooklyn cannot enter nationwide injunctions against Republican administrations. On balance, who benefited more from nationwide injunctions: blue states during the Trump Administration, or red states during the Biden Administration?