Notice & Comment

More from Various Legal Scholars on the Nationwide Injunction, “Universal Vacatur,” and the APA

Earlier today we featured a fascinating post from John Harrison on the availability of nationwide injunctions under the Administrative Procedure Act. We have featured a number of blog posts on this debate about nationwide injunctions under the APA.

To continue that debate, I thought I’d flag that Mila Sohoni submitted a law professor amicus brief on the subject in Trump v. Pennsylvania last week. The brief argues (from the argument summary):

The APA’s text, decades of this Court’s precedents, the APA’s legislative history, the landscape against which the APA was enacted, and Congressional acquiescence in its applications all establish that the APA allows the universal vacatur of rules as an ultimate remedy, and allows preliminary injunctions staying the effectiveness of those rules during the course of litigation. That statutory grant of authority allowing courts to issue nationwide injunctions not only is constitutional but squares entirely with traditional equity practice.

The brief also contends, drawing upon Sohoni’s earlier article The Lost History of the Universal Injunction, that the APA’s grant of authority to federal courts to issue nationwide injunctions is wholly consistent with the traditions of equity and the Constitution.

Zachary Clopton, Amanda Frost, Suzette Malveaux, and Alan Trammell have also filed a law professor amicus brief in the case, also supporting the availability of nationwide injunctions under the APA. Here is the Summary of the Argument from their brief:

In Trump v. Pennsylvania (No. 19-454), the Government asks this Court to categorically prohibit injunctions that protect nonparties. But history, precedent, and Article III of the Constitution do not support a categorical rule against such injunctions. Instead, whether an injunction should issue in a given case is a complex, fact-sensitive question that should be resolved on a case-by-case basis.

First, although critics of so-called universal injunctions claim that the history of equity compels their categorical prohibition, this claim is overbroad and subject to challenge. Historically, English and American courts protected nonparties through bills of peace, privity, and common law writs, and there are early examples of federal courts using the type of injunction challenged in this case.

In addition, although critics of universal injunctions claim that United States v. Mendoza, 464 U.S. 154 (1984), implies that nonparties should never benefit from judgments against the federal government, that decision shows only that the scope of relief may account for policy considerations. Mendoza’s analysis does not support a blanket prohibition on universal injunctions.

Finally, while many critics of universal injunctions claim that nonparty relief is inconsistent with Article III, it is well established that federal-court authority is not categorically limited to parties who can demonstrate Article III standing in the initial proceeding. And, importantly, a ruling grounded in Article III would disempower Congress from authorizing relief that protects nonparties, even in limited and well- defined areas.

Unless and until Congress provides guidance to the federal courts on the proper scope of relief, federal courts should use their equitable discretion to account for the important policy issues raised by universal injunctions. District courts should carefully weigh the balance of equities and the public interest, and appellate courts should, in turn, expeditiously review preliminary injunctions that provide widespread relief. This Court’s settled precedents support such a measured approach, which is far preferable to the unjustified, categorical prohibition that the Government requests.

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