Georgia v. the President of United States (August 26) is a major new case about national injunctions. Seven states brought challenges to federal contractors’ vaccine mandate. Associated Builders and Contractors intervened. It was a question of merits whether the contractor mandate exceeded the powers granted by the Procurement Act to the president. A national injunction was issued by the district court to stop enforcement of the mandate. Although the district court agreed with the conclusion that challengers would prevail on merits, the court of appeals vacated the injunction regarding non-parties. The Eleventh Circuit decision is here.
Judge Grant is the judge. It is not clear whether all of the parts should be called “the opinion” but it’s obvious that Part V on the scope and effect of injunctions expresses the views of the panel. Judge Anderson joined that part of the opinion, but he did not vote. Judge Edmondson’s brief concurrence to the final result expressly supports the scope.
Judge Grant’s opinion contains a sharp and detailed analysis. It is also very well-written. This analysis goes from Article III, to the traditional scope and equitable powers of circuit precedent, to finally return to the distributed decisionmaking which is typical of federal courts. Many of these points are not surprising to those who have followed the national injunctions debate, but it is a great restatement for all major concerns. There are some unique points that should be highlighted:
First, the opinion permits national injunctions for “appropriate” but rare cases. Circuit precedent is the basis for this express allowance. (“Consistently with these principles we have stated that a nationwide order may be issued “in appropriate circumstances” [citing circuit precedent]. The devil lies in the details. Some courts will say the same thing, but then explain why a national order could be granted in almost every case. This includes a need to uniformly apply the law between the parties or non-parties. However, this opinion makes things more complicated. There are no “factors” suggesting a wider injunction. In every instance, the court has to “wrestle with” how to grant an injunction that does not go beyond what is necessary to remedy the injuries to the parties. The decision may mean that although national injunctions might be permissible theoretically, they are not allowed in practice.
This opinion also provides a unique set of examples that show Congress how to depart from the normal of separate cases blooming, as if a thousand flowers. These examples support the conclusion of the court that “nonuniformity” is an intentional feature of our federal judiciary system. Congress (not any of the 94 federal districts courts or the 12 regional circuit court–is the best in deciding when to break from this norm.
The opinion also considers injunctions as qua injunctions and not what relief under the Administrative Procedure Act. Footnote 16 notes the fact that plaintiffs have dropped an argument for vatur on appeal. John Harrison’s work, which I recommend as the standard in APA remedies, is well-known. The latest from Harrison on this subject. Remand Without Vacatur, and the Ab Initio Invalidity Unlawful Regulations under Administrative LawLast month, he was the topic of several posts at the Volokh Conspiracy.
Fourth, it was not permissible for remedial principles of law to be trampled on by the different parties. Seven states were sued and, as some commentators noted, the recent increase in state standing has led to the rise of national restraining orders. Some courts have behaved like state plaintiffs, allowing them to decide how federal law applies. The state’s territory(at odds With) Massachusetts v. MellonThe other case is. This court, however is much more cautious and treats state plaintiffs the same as those who are representing themselves. Some courts also treat a trade association as though it were the whole industry or all parties. However, the court takes a more cautious approach: The trade association represents its members. According to the court, injunctive relief is available for specific parties only, and not on geographic areas. It’s possible, therefore, to identify both the trade association members and the plaintiff States.
Fifth, the court uses care in how it analyzes different parts of an injunction. This distinguishes between solicitation for bids and contract terms. This is admirable.
Sixth and most importantly, I am delighted that this decision is supported by judges who were appointed by the Republican and Democratic presidents. Injunctions against national governments can have a high political component at any time. In the second half Obama’s second term, they stopped President Obama’s agenda; in Trump’s second term they stopped President Trump’s agenda; and now they are stopping President Biden. They aren’t partisan, but the reason they think they will be destructive to our judiciary system is not political. Amanda Frost’s book outlines some of the reasons why I support national injunctions. A Defense of Nationwide injunctionsThey are, however, not partisan. The principles that are at stake here, however, may be strongly partisan.
Finally, the opinion arrives at an unusual moment in the national injunctions discussion. They have not been eliminated by Congress or the Supreme Court. They still dominate public debates. Judges who now give them often express regret. It’s almost like they realize there are some untoward aspects to this device. Judges have expressed concern over their distortion in increasing numbers of circuits. Judge Sutton recently concurred, and one is here. A decision such as Georgia v. the President of United StatesIt provides an example of how a circuit which has permitted national injunctions can now, with no reversal or reversal, help to eliminate the national injunction.