In the recently decided Sixth Circuit case Arizona v. Biden (April 12, 2022), Judge Jeffrey Sutton concurring with some sharp words for nationwide injunctions:
The district court’s remedy—universally enjoining the National Government from enforcing the Guidance in any State in the country—also likely exceeded its authority. I do not take issue with the court’s decision to extend the remedy beyond the Southern District of Ohio as to the three state claimants. … But it is one thing to honor a federal court judgment issued in favor of, say, Arizona by the Southern District of Ohio anywhere in the country. It is quite another to do so for the 47 States that did not participate in the lawsuit. I am not the first to question nationwide (or universal) injunctions (or remedies) that bar the federal government from enforcing a law or regulation anywhere and against anyone. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas J., concurring); Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 599–601 (2020) (mem.) (Gorsuch, J., concurring); CASA de Md., Inc. v. Trump, 971 F.3d 220, 256–63 (4th Cir. 2020) (vacated on other grounds); Samuel Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 457–82 (2017).
I meet this concept with considerable skepticism. Article III grants the “judicial Power,” which extends only to specified “Cases” and “Controversies.” U.S. Const., art. III, § 2. Standing limitations, a prohibition on advisory opinions, distinctions between judgments and opinions all grow out of this language and the history behind it. The same is true of remedies, which emerge from a federal court’s equitable power. A valid Article III remedy “operate[s] with respect to specific parties,” not with respect to a law “in the abstract.” California v. Texas, 141 S. Ct. 2104, 2115 (2021) (quotation omitted). That is why courts generally grant relief in a party-specific and injury-focused manner. See Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). In this same way, we do not remove—“erase”—from legislative codes unconstitutional provisions. Jonathan Mitchell, The Writ–of–Erasure Fallacy, 104 Va. L. Rev. 933, 1016–17 (2018). We merely refuse to enforce them in a case, thereby exercising “the negative power to disregard an unconstitutional enactment.” Massachusetts v. Mellon, 262 U.S. 447, 488 (1923). After a court has remedied a claimant’s injury, it is fair to ask what controversy remains for a court to adjudicate or remedy.'
Call them what you will—nationwide injunctions or universal remedies—they seem to take the judicial power beyond its traditionally understood uses, permitting district courts to order the government to act or refrain from acting toward nonparties in the case. The law already has a mechanism for applying a judgment to third parties. That is the role of class actions, and Civil Rule 23 carefully lays out the procedures for permitting a district court to bind nonparties to an action. Nationwide injunctions sometimes give States victories they did not earn and sometimes give States victories they do not want. They always sidestep Rule 23’s requirements.
Plus citations later on to originalist scholar John Harrison and my colleague Mila Sohoni.
(Via Ed Whelan at NRO Bench Memos).
Posted at 6:30 AM