SUTTON is Chief Judge concurring. As I see it should be taken as a whole with adjudicative salt. Imperatives of speed in decisionmaking—less than a week since the last brief was filed—do not always translate into accuracy in decisionmaking.
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. The court’s decision not to expand the remedy to three state claimants beyond the Southern District of Ohio isn’t disputed by me. A district court can “exercise its equity powers” and “cancommand persons properly in front of it to stop or perform acts that are outside their territorial jurisdiction.” Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952). It is not easy to honour a Federal Court judgment in favor of Arizona, by the Southern District, Ohio, anywhere in the United States. However, it is quite different to honor the judgment for 47 states that were not involved in the case. It is not my first time to challenge nationwide or universal injunctions that prevent the federal government’s enforcement of a law, regulation, or rule against any person. 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 another grounds); Samuel Bray., Multiple Chancellors. Reforming The National Injunction. L. Rev. 417, 457–82 (2017).
With considerable doubt, I view this idea. Article III gives the “judicial power,” but it is limited to certain “Cases”, and “Controversies.” U.S. Const., art. III, § 2. This language, along with its history, is responsible for standing limitations and a ban on advisory opinions.
This is also true for remedies which arise out of a federal court’s equitable power. A valid Article III remedy is “operable[s]With respect to particular parties” and not with regard to a law “in its abstract.” California v. Texas. 141 S. Ct. 224, 2115 (2021). Courts generally award relief party-specifically and with injury focus. Gill v. Whitford 138 S. Ct. 1916-1834 (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). They are not to be enforced in any case. We do so by exercising the “negative power to ignore an unconstitutional act.” Massachusetts v. Mellon. 262 U.S. 442, 488 (1923). Once a court has repaired a claimant’s injuries, it is fair for the court to decide what other controversy they need to resolve.
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. There is already a way to apply a court’s judgment to third parties. It is called class actions. Civil Rule 23 clearly outlines the steps for a district court to legally bind parties in an action. Injunctions at the national level can sometimes grant States wins they didn’t deserve and other times give States victories that they are not entitled to. They do not always follow Rule 23’s guidelines.