Thursday, April 30, 2020

The latest on the national injunction at the Supreme Court

By Samuel Bray - April 30, 2020 at 12:13AM

Among the cases that are at the Supreme Court this term is Trump v. Pennsylvania, consolidated with Little Sisters of the Poor v. Pennsylvania. One of the questions presented is about the scope of the injunction. Nick Bagley and I submitted an amicus brief almost two months ago, and when posting about it here at the Volokh Conspiracy I mentioned that I would call attention to any opposing briefs on this question. My apologies for not being able to do that sooner. In this post I'll also mention an important new contribution to the debate by John Harrison: "Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies."

Here, then, are the amicus briefs on the other side that devote substantial space to the injunction question:

  1. Twenty states and the District of Columbia filed an amicus brief that argued, among other things, that the scope of the injunction was consistent with equitable principles and the APA.
  2. Zach Clopton, Amanda Frost, Suzette Malveaux, and Alan Trammell filed an amicus brief that defends nationwide injunctions with arguments from the history of equity (including the bill of peace and privity), the history of writs at common law (e.g., mandamus), and preclusion doctrine. Two notes. First, in my view mandamus has a different logic than the injunction, not focused on protection of the plaintiff and those represented by the plaintiff, but rather focused on the officer's duty, and it has its own distinctive limiting principles (e.g., only ministerial duties). Second, the brief relies on an amicus brief filed in 2018 in the Seventh Circuit sanctuary city case by some extraordinarily able legal historians. That brief is available here, and I responded in this post and this post.
  3. Mila Sohoni's amicus brief focuses primarily (but not exclusively) on the APA, concluding that it authorizes "courts to issue nationwide injunctions" and that this authorization "not only is constitutional but squares entirely with the traditional equity practice." On the 1937 statute, compare Professor Sohoni's discussion with Professor Harrison's.
  4. Public Citizen's amicus brief argues for "nationwide relief [as] the ordinary remedy" under the APA.
  5. The Public Interest Law Center and affiliated lawyers' committees filed an amicus brief arguing that nationwide injunctions are consistent with historic equity, both English and American, even before 1789.
  6. An amicus brief for several state and local government associations, including National League of Cities and the United States Conference of Mayors, argues, among other things, that nationwide injunctions have become accepted in current doctrine.

In addition to these amicus briefs, there is coverage of the scope of the injunction the party briefs (available at SCOTUSBlog).

Finally, there's the explosive new argument by John Harrison in his bulletin in the Yale Journal on Regulation. Harrison argues that Section 706 of the APA doesn't authorize universal remedies because it has nothing to do with remedies–that is the job of Section 703. Among other things, Harrison's piece provides the most compelling reading of the 1937 statute that established three-judge district courts and gave them authority to "set[] aside" federal statutes that were repugnant to the Constitution. On Harrison's reading, "set aside" in the 1937 statute and in the APA does not mean "strike out" or "vacate" or even "reverse" but rather "set to one side," "put to the side," "ignore for purposes of deciding the case." If you want a taster course, Harrison posted a shorter version of the argument at the Yale Journal on Regulation's Notice & Comment blog. Harrison's argument is also cited by the Solicitor General.

If you're interested in the national injunction or the APA or both, there's plenty to read.


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