Since Attorney General Sessions delivered his speech last week at the Federalist Society’s National Student Convention, there has been a lot of talk about nationwide injunctions—injunctions that prohibit the government from enforcing a law against anyone, as opposed to only against a particular plaintiff. While many people have talked about granting these injunctions, one thing that I haven’t seen discussed much is the interpretation of nationwide injunctions.
Appellate courts reviewing injunctions usually consider questions of law de novo, but some courts have carved out an exception for the interpretation of injunctions. When a district court judge interprets an injunction that he previously issued, those appellate courts give “great deference” to that interpretation. In re Managed Care, 756 F.3d 1222, 1234 (11th Cir. 2014); see Schering Corp. v. Illinois Antibiotics Co., 62 F.3d 903, 908 (7th Cir. 1995) (“When the district judge who is being asked to interpret an injunction is the same judge who entered it and is thus familiar with its history, or when interpretation of the injunction involves the taking of testimony or a piecing together of documents, we should give particularly heavy weight to the district court’s interpretation”). But see Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1382 (Fed. Cir. 2007) (“[I]nterpretation of the terms of an injunction is a question of law we review de novo”).
The reason for that deference is that the district judge is thought to be in the best position to interpret his injunction. See Employers Ins. of Wausau v. Browner, 52 F.3d 656, 666 (7th Cir. 1995) (“[W]hen the document is an order, the court . . . that issued it is, sensibly enough, considered to have special insight into its meaning, so review is deferential.”). That reasoning is similar to the reasoning underlying Auer deference—the deference an agency receives when interpreting its own regulations. Indeed, the cases that the courts have cited to support deferring to the district judge’s interpretation trace back to the Auer doctrine. Id. (citing Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 150–51 (1991) (an Auer deference case)).
This interpretive deference adds to the Attorney General’s criticism that nationwide injunctions result in district courts making national policy. Appellate deference to interpretations of injunctions means that district courts have, in some respects, more control over national policy than appellate courts.
This deference also presents some of the same concerns that critics raise against Auer deference. It lets district courts make rules while avoiding procedural baggage. Courts must jump through a series of hoops to issue an injunction or to modify it, and those orders are subject to an immediate appeal. But these procedures don’t apply when courts simply interpreting injunctions that they’ve already issued.
Of course, there are differences between injunctive deference and Auer deference. For example, the government is often a party in cases raising Auer deference, but district judges are obviously not parties in the litigation that gives rise to injunctions. And because of restrictions on overly vague injunctions, injunctions must be more precise than regulations, which means that district judges have less discretion in interpreting injunctions than agencies in interpreting regulations.
I don’t think this deference will make or break nationwide injunctions. But I could see courts deciding not to defer to district court interpretations in these politically charged cases. That could provide more ammunition for the critics of Auer.