The Volokh Conspiracy
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Three Notes on National Injunctions
Three notes on national injunctions. First, today the Court issued a stay of another universal injunction, this time in McHenry v. Texas Top Cop Shop, Inc. The Solicitor General had suggested that the Court could construe the stay request as a petition for certiorari before judgment, allowing the Court to directly address the universal injunction question. One reason that matters is that it would be good for the Court to tackle the universal-relief question directly, without the additional complexities that come from the context of the Administrative Procedure Act.
The Court did not grant certoriari before judgment, and Justice Gorsuch wrote a brief concurrence in the stay:
I agree with the Court that the government is entitled to a stay of the district court's universal injunction. I would, however, go a step further and, as the government suggests, take this case now to resolve definitively the question whether a district court may issue universal injunctive relief. See Labrador v. Poe, 601 U. S. ___, ___–___ (2024) (GORSUCH, J., concurring in grant of stay) (slip op., at 4–5, 11–13); Department of Homeland Security v. New York, 589 U. S. ___, ___–___ (2020) (GORSUCH, J., concurring in grant of stay) (slip op., at 1–5).
Second, I recently ran across a Supreme Court decision that has not featured in the debate over the national injunction, but it has language that is directly on point. The case is United States v. National Treasury Employees Union:
For three reasons, we agree with the Government's first suggestion—that the relief should be limited to the parties before the Court. First, although the occasional case requires us to entertain a facial challenge in order to vindicate a party's right not to be bound by an unconstitutional statute, see, e.g., Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 965–967, and n. 13, 104 S.Ct. 2839, 2851–2852, and n. 13, 81 L.Ed.2d 786 (1984), we neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants. See Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 484–485, 109 S.Ct. 3028, 3037–3038, 106 L.Ed.2d 388 (1989). In this case, granting full relief to respondents—who include all Executive Branch employees below grade GS–16—does not require passing on the applicability of § 501(b) to Executive Branch employees above grade GS–15, including those high-level employees who received a 25% salary increase that offsets the honoraria ban's disincentive to speak and write.
United States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 477–78 (1995).
Third, The Purpose of the Preliminary Injunction addresses trends in preliminary injunctions, especially the collapse of the four-factor test into the merits. It is not just about national injunctions. But it sheds light on a broader set of intersecting trends—the dominance of the merits, the rise of universal relief, and heightened judicial polarization and forum-shopping.
