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Wednesday, July 08, 2020

Universal v. Nationwide

A good illustration of why the nationwide/universal and where/who distinction matters for the scope-of-injunction question. Here is footnote 28 in Ginsburg dissent in Little Sisters:

Although the Court does not reach the issue, the District Court did not abuse its discretion in issuing a nationwide injunction. The Administrative Procedure Act contemplates nationwide relief from invalid agency action. See 5 U. S. C. §706(2) (empowering courts to “hold unlawful and set aside agency action”). Moreover, the nationwide reach of the injunction “was ‘necessary to provide complete relief to the plaintiffs.’ Trump v. Hawaii, 585 U. S. ___, ___, n. 15 (2018) (SOTOMAYOR, J., dissenting) (slip op., at 25, n. 13) (quoting Madsen v. Women's Health Center, Inc., 512 U. S. 753, 765 (1994)). Harm to Pennsylvania and New Jersey, the Court of Appeals explained, occurs because women who lose benefits under the exemption “will turn to state-funded services for their contraceptive needs and for the unintended pregnancies that may result from the loss of coverage.” 930 F. 3d, at 562. This harm is not bounded by state lines. The Court of Appeals noted, for example, that some800,000 residents of Pennsylvania and New Jersey work—and thus receive their health insurance—out of State. Id., at 576. Similarly, many students who attend colleges and universities in Pennsylvania and New Jersey receive their health insurance from their parents’ out-of-state health plans. Ibid.

Ginsburg is correct that protecting New Jersey and Pennsylvania is not bounded by state lines, given the number of employees, students, etc. likely to turn to the state for financial assistance. That is, the injunction should have been nationwide in where it protects the parties.  It should protect NJ and Pennsylvania and those people with some connection to NJ or Pennsylvania (on whose behalf NJ and Pennsylvania sued), regardless of where those people are.

But complete relief does not require that the regs be enjoined as to other states who may incur the same harm as NJ and PA or to individuals who might be denied coverage but have no connection to NJ and PA. That is, the injunction need not be universal (or non-particularized) in who it protects. Complete relief to NJ and PA does not require that the enforcement be enjoined as to California or those people who might turn to California for funding if denied coverage.

For what it is worth, the same should apply to the lawsuit Harvard and MIT filed to stop ICE from enforcing the rules with respect to student-visa holders and remote courses. Complete relief to Harvard and MIT does not require enjoining enforcement of the regulations as to other schools or students from schools other than Harvard and MIT. It only requires an injunction protecting Harvard and MIT and their students, regardless of where located. I recognize this is inefficient. But this is the scheme we have.

Posted by Howard Wasserman on July 8, 2020 at 01:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink


We don't have to entirely imagine the kind of scenario described by Asher. The Clean Air Act (which has a distinct judicial review scheme from the APA) authorizes the reviewing court to "reverse" a rule, which it also refers to in another subsection as "invalidating" the rule. 42 U.S.C. 7607. In some circumstances, it also provides for "the effectiveness of the rule" to be temporarily "stayed" by the "Administrator or the court." And beyond the text it's very clear from the context that these actions are universally applicable; the rules deal, for example, with national ambient air quality standards. Does Professor Wasserman believe that the Clean Air Act is unconstututional? Or does he believe that the text of the APA is somehow different?

Posted by: Chris | Jul 9, 2020 2:15:53 PM

Well, a few things:

The APA talks about rules, so even if rulemaking weren't the norm, it wasn't uncontemplated by the drafters of the APA.

In any event, rules do exist, the subject of this case is a rule, it's the agency action the Court's reviewing, no doubt (it's the "final agency action" under Section 704 that allowed Pennsylvania to sue the day the rule was adopted), so whatever was or wasn't contemplated as the modal form of agency action, we have to apply the APA's remedial provisions to that action, not the contemplated modal form, it seems to me.

Agreeing with your view of Article III, I could imagine a number of reasons the traditional reading of the APA might be permissible under it. Does it violate Article III for Congress to say that a rule written by a federal agency, which is a creature of federal statute and only has whatever authority Congress gives it, shall be void if found unlawful? Obviously not; the only question is whether Congress violates Article III in giving Article III courts the task of carrying out the voiding. Alternatively, might it not be that an APA action is really a public-rights dispute that can be adjudicated without regard to all sorts of Article III requirements? Suppose you accept the premise that Congress could give non-Article-III tribunals the task, at least the initial task, of reviewing agency rules (which has to be right). Obviously Congress would not be constrained in its choice of remedies by Article III there, and could authorize such tribunals to simply set aside rules. Now, suppose courts could review these tribunals' decisions. In reviewing and reversing one in favor of an agency, would a court, because of Article III, have less remedial power than the tribunal had? If Congress unambiguously gave the court the power to set aside the rule as to all parties itself, not just the parties seeking review, would the "strict view" of Article III require that a court remand the matter back to the tribunal, after having corrected it on the law, so the tribunal could be the one to set aside the rule? Or might we say that if a dispute is far enough from the traditional Article III case or controversy as to be adjudicable by an administrative body, a court doesn't have to hew to Article III case-or--controversy principles in how it adjudicates it?

Posted by: Asher Steinberg | Jul 9, 2020 12:01:26 AM

And if courts act on the rule, then it should not talk about injunctions, nationwide or otherwise. If the rule is erased, there is no conduct to enjoin (no need to enjoin enforcement of a non-existent rule). If the courts act on the parties, we are back to the particularity requirement,

Posted by: Howard Wasserman | Jul 8, 2020 9:19:01 PM

Asher: This is where Harrison and Sohoni depart. Harrison argues that the understanding of the APA at the time was that agencies acted through adjudication rather than rulemaking, so the court would "set aside" a decision, just as a court of appeals sets aside a lower-court judgment. And like a lower-court judgment, the decision is particularized to the parties.

So what is the court acting against--the rule or the enforcement? The strict Article III view is that courts only can act as to parties, not to rules. A court cannot erase a rule any more than it can erase a statute.

Posted by: Howard Wasserman | Jul 8, 2020 9:17:25 PM

For some reason I thought you were of the view that the APA provides for universality. I haven't read a word of Harrison's or Sohoni's stuff on this, but it does seem a more natural reading of "set aside agency action" to say that a court sets aside a rule, not its application to the plaintiff, which it's difficult to conceptualize as an "agency action" outside an enforcement proceeding.

Posted by: Asher Steinberg | Jul 8, 2020 8:33:09 PM

Wasserman, if the procedure act, provides, I quote (relevant parts):

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1)compel agency action unlawfully withheld or unreasonably delayed; and

(2)hold unlawful and set aside agency action, findings, and conclusions found to be—

(A)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B)contrary to constitutional right, power, privilege, or immunity;

(C)in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D)without observance of procedure required by law;

End of quotation:

Then if the action is:

"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"

It must become then, universal ( the court ruling or preliminary injunction). It doesn't matter what, or, on what party implied or whatever. This is federal court. Unlawfulness and unconstitutionality of such, must be implied all around whatever all over the nation. It is unlawful simply. This is not a game of pick as you wish here. What you can't legally do, doesn't matter where and when.


Posted by: El roam | Jul 8, 2020 5:25:09 PM

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