The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

The Eleventh Circuit Reins in the National Injunction


Georgia v. President of the United States (August 26) is a major new case about national injunctions. Seven states brought a challenge to the vaccine mandate for federal contractors, and a trade association intervened (Associated Builders and Contractors). On the merits, the question was whether the contractor mandate went beyond the president's powers under the Procurement Act. The district court said the challengers were likely to succeed on the merits and issued a national injunction blocking enforcement of the mandate. The court of appeals agreed that the challengers were likely to succeed on the merits, and it upheld the injunction as it related to the parties, but the court vacated the injunction as to non-parties. The Eleventh Circuit decision is here.

The opinion of the court is by Judge Grant. (Whether all parts of the opinion should be designated "the opinion of the court" is less clear, but there's no doubt that Part V, on the scope of the injunction, expresses the view of the panel. That part of the opinion was joined by Judge Anderson, who otherwise dissented, and the short concurrence in the result by Judge Edmondson expressly agrees as to the scope.)

The analysis in Judge Grant's opinion is incisive and thorough (and very well written). It moves from Article III to the traditional scope of equitable powers to circuit precedent, and back to the distributed decisionmaking that is characteristic of the federal courts. Most of these points will not surprise those who have been following the debate about national injunctions, but this is an excellent restatement of all the major concerns. There are also some new or distinctive points to highlight:

First, this opinion expressly allows national injunctions in "appropriate" but "rare" cases. This express allowance is based on circuit precedent ("Consistent with these principles, we have said that a nationwide injunction may be issued 'in appropriate circumstances'" (citing circuit precedent)). But the devil is in the details. Some courts say something like that, and then give reasons for a national injunction that could be found in essentially every case, such as a need for uniformity or the equal application of the law (i.e., between parties and non-parties). But this opinion tightens the screws. None of the "factors" that might suggest a broader injunction require one, and in every case the district court must "wrestle" with how to give an injunction that is no broader than needed to address the injury to the parties. After this decision, the result may be that national injunctions are permissible in theory but not in fact.

Second, this opinion is unique in how it gives a wide set of illustrations of how Congress can depart from the norm of letting separate cases, like a thousand flowers, bloom. These illustrations undergird the court's conclusion that "nonuniformity is a deliberate feature of our federal court system, and Congress–not one of the 94 federal district courts or 12 regional circuit courts–is best positioned to choose when to depart from that norm."

Third, the opinion considers injunctions qua injunctions, not the question of what relief is authorized under the Administrative Procedure Act (footnote 16 notes that the plaintiffs dropped an argument for vacatur on appeal). As readers know, I commend John Harrison's work as the gold standard on APA remedies. His latest piece on the subject, Remand Without Vacatur and the Ab Initio Invalidity of Unlawful Regulations in Administrative Law, was the subject of a series of posts last month at the Volokh Conspiracy.

Fourth, the court did not allow remedial principles to get trampled by who the parties were. Seven states sued, and as other commentators have recognized, a recent expansion of state standing has driven the rise of national injunctions. Some courts have acted like a state plaintiff gets to say how federal law applies within the territory of the state (at odds with Massachusetts v. Mellon, among other cases). But this court is more careful, and it treats the state plaintiffs as plaintiffs who represent themselves. Similarly, when a trade association is present, some courts have acted as if the entire industry, or even all affected parties were present. But the court is more careful: the trade association represents its members, full stop. As the court said, "injunctive relief operates on specific parties, not geographic territories, and identifying the plaintiff States and trade association members is possible."

Fifth, the court is careful in how it applies its analysis to different parts of the injunction, distinguishing between contract terms and solicitation of bids. This is well done.

Sixth, and this is something in which I take particular delight, this decision has the support of judges appointed by both Democratic and Republican presidents. At any one moment in time, national injunctions are highly political. They stopped the agenda of President Obama in the second half of his second term; they stopped the agenda of President Trump; now they stop the agenda of President Biden. But the reasons to think they are destructive of our judicial system are not partisan. And I will concede that the principled reasons to support national injunctions (as outlined in Amanda Frost's In Defense of Nationwide Injunctions) are also not partisan. In other words, although the applications tend to be intensely partisan, the principles at play here are not.

Finally, this opinion comes at an odd moment in the debate over national injunctions. Neither Congress nor the Supreme Court has yet eradicated them. They continue to dominate major questions in our public life. But even judges who give them now tend to express regret, as if they recognize there is something tawdry or untoward about this device. In more circuits, judges are expressing concern about their distortive effects (as in Judge Sutton's recent concurrences, one of which is discussed here). And a decision like Georgia v. President of the United States offers a roadmap for how a circuit that has allowed national injunctions in the past can, without any reversal of its precedent, do its part to put the national injunction on a path to extinction.