The reins of the Eleventh Circuit in the national injunction
Georgia v. President of the United States (August 26) is a major new case concerning national injunctions. Seven states challenged the vaccine mandate for federal contractors, and one trade association stepped in (Associated Builders and Contractors). On the merits, the question was whether the mandate of the contractor went beyond the powers of the president under the law on public procurement. The district court said the challengers were likely to succeed on the merits and issued a nationwide injunction blocking the warrant’s execution. The appeals court agreed that the challengers were likely to succeed on the merits, and it upheld the injunction as to the parties, but the court reversed the injunction as to the non-parties. The Eleventh Circuit decision is here.
The opinion of the court is that of Judge Grant. (Whether all parts of the opinion should be referred to as “the opinion of the court” is less clear, but no doubt Part V, on the scope of the injunction, makes the point view of the committee. This part of the opinion was appended by Justice Anderson, who was otherwise dissenting, and the short endorsement of the result by Justice Edmondson expressly agrees as to scope.)
The analysis of Judge Grant’s opinion is incisive and thorough (and very well written). It moves from Article III to the traditional scope of equitable circuit powers, and returns to the distributed decision-making that characterizes federal courts. Most of these points will come as no surprise to those who have followed the national injunctions debate, but it is an excellent reminder of all the major concerns. There are also a few new or distinctive points to highlight:
First, this opinion expressly authorizes national injunctions in “appropriate” but “rare” cases. This express indemnity is based on Circuit precedent (“Consistent with these principles, we have said that a nationwide injunction may be issued ‘in appropriate circumstances'” (quoting Circuit precedent)). But the devil is in the details. Some courts say something like this and then give reasons for a national injunction that could be found in virtually any case, such as a need for uniformity or equal application of the law (i.e. between parties and non-parties). But this opinion tightens the screw. None of the “factors” that might suggest a broader injunction require one, and in any case, the district court must “wrestle” with how to issue an injunction that is no broader than necessary to remedy. to the damage suffered by the parties. After this decision, the result may be that national injunctions are allowed in theory but not in fact.
Second, this opinion is unique in that it provides a wide range of illustrations of how Congress can deviate from the norm of letting separate cases bloom, like a thousand flowers. These illustrations support the court’s conclusion that “non-uniformity is a deliberate feature of our federal court system, and Congress – not one of the 94 federal district courts or 12 regional circuit courts – is best placed to choose when to deviate from that norm.”
Third, the opinion considers injunctions as injunctions, not the question of what relief is permitted under the Administrative Procedure Act (footnote 16 notes that the plaintiffs have abandoned an argument of vacatur on appeal). As readers know, I salute the work of John Harrison as the gold standard for APA remedies. His latest article on the subject, The dismissal without vacatur and the nullity ab initio of illegal regulations in administrative lawwas the subject of a series of publications last month on the Volokh Conspiracy.
Fourth, the court did not allow the principles of reparation to be overridden by the identity of the parties. Seven states have sued and, as other commentators have acknowledged, a recent expansion of statehood has led to the rise of national injunctions. Some courts acted as if a state plaintiff could tell how federal law applied in the territory of the state (in contradiction with Massachusetts v. Mellon, among other cases). But this court is more cautious and treats state plaintiffs as self-represented plaintiffs. Similarly, where a trade association is present, some courts have acted as if the entire industry, or even all relevant parties, were present. But the court is more cautious: the professional association represents its members, period. As the court stated, “the injunction applies to specific parties, not geographic territories, and identification of claimant states and trade association members is possible.”
Fifth, the court is careful in how it applies its analysis to the different parts of the injunction, distinguishing between the terms of the contract and the solicitation. It is well done.
Sixth, and this is something I particularly welcome, this decision has the support of judges appointed by the Democratic and Republican presidents. At all times, national injunctions are highly political. They stopped President Obama’s agenda in the second half of his second term; they stopped President Trump’s agenda; now they are shutting down President Biden’s agenda. But the reasons for thinking they are destructive of our justice system are nonpartisan. And I will concede that the policy reasons for supporting national injunctions (as described in Amanda Frost’s article In defense of national injunctions) are also not partisan. In other words, while the apps tend to be intensely partisan, the principles at play here are not.
Finally, this opinion comes at a unique moment in the debate on national injunctions. Neither Congress nor the Supreme Court has yet eradicated them. They continue to dominate the big issues in our public life. But even the judges who give them now tend to express regret, as if acknowledging that there is something sordid or untoward about this device. In several circuits, judges are expressing concerns about their distorting effects (as in Justice Sutton’s recent settlements, one of which is discussed here). And a decision like Georgia v. President of the United States offers a roadmap for how a circuit that has allowed national injunctions in the past can, without any reversal of its precedent, do its part to put the national injunction on the road to extinction.