Legal Historians Weigh in on the Nationwide Injunction Debate

by Chris Walker — Tuesday, Nov. 20, 2018@chris_j_walker

As regular readers of the blog know, a number of us are very interested in the propriety of nationwide injunctions to enjoin federal agency actions. I’ve blogged a bit about Sam Bray’s APA argument and the new legislation that would limit nationwide injunctions. Nick Bagley has joined Bray in arguing that federal courts should not issue nationwide injunctions. And Andy Hessick has explored the deference aspects of nationwide injunctions.

So I was very excited to see a new amicus brief filed by legal historians Amalia Kessler, Robert Gordon, Bernadette Meyler, Gregory Ablavsky, Stanley Katz, Hendrik Hartog, and Kellen Funk. This brief was filed in the Seventh Circuit’s sanctuary city case, Chicago v. Whitaker. The panel had affirmed the district court’s grant of a nationwide preliminary injunction, and the Seventh Circuit granted rehearing en banc. The en banc court subsequently vacated the appeal in light of the fact that the district court had since granted summary judgment and entered a permanent nationwide injunction. This amicus brief was filed in the new round of briefing before the Seventh Circuit.

The full brief is definitely worth a read, but here is the summary of the legal historians’ argument:

Nationwide injunctions against the federal government were not issued in 1789. But that is the result of historical accident and not because of any inherent limitations on the remedies available in equity. Equity courts in 1789 could “adapt their decrees to all the varieties of circumstances …, and adjust them to all the peculiar rights of all the parties in interest.” 1 Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America § 28 (2d ed. 1839) [hereinafter Story, C. Eq.]. Courts of equity existed to decide upon and settle the rights of all persons interested in the subject matter of the suit. Courts of equity, it was said, do complete justice—not justice by halves.

To that end, early American equity courts could fashion injunctions that protected the rights of non-parties and that even ran against non-parties. Courts of equity could also issue injunctions against government officials, and by doing so, functionally restrain the actions of governments at the municipal, state, and federal levels. No case from the early republic casts that proposition in starker light than Cherokee Nation v. Georgia, 30 U.S. 1 (1831). The Court dismissed the case for lack of jurisdiction. But Justice Joseph Story, dissenting, would have entered an injunction enjoining the State of Georgia and all of its officers and agents from enforcing any Georgia laws in Cherokee territory against anyone.

Not only did equity courts have the equitable power to grant injunctions that look like modern nationwide injunctions (save they did not run against the federal government itself), but they in fact issued injunctions of astonishing scope. In the late 1800s and early 1900s, federal courts sitting in equity issued labor injunctions restraining hundreds of thousands of workers to protect the free flow of commerce nationwide. While we doubt the lawfulness of similar injunctions today, and Congress limited the federal courts’ power to issue such injunctions in the 1930s, they show the power of traditional equity.

Thus, equity courts had the equitable powers to issue nationwide injunctions in the early republic. There are likely a variety of reasons that no modern-style nationwide injunctions issued. At the threshold, very few federal laws were held unconstitutional in the 18th and 19th centuries. Moreover, the federal government was structured in a fundamentally different fashion than it is today. And federal courts lacked their modern broad federal question jurisdiction.

But the likeliest explanations for the absence of nationwide injunctions before the 20th century relate to sovereign immunity, jurisdiction, and venue—not the nature of the federal courts’ equity powers. First, the United States did not waive its sovereign immunity from suit in a general way until 1976. A nationwide injunction against the United States could not have issued before 1976. Second, restrictions on venue and personal jurisdiction meant litigants needed to sue cabinet-level officers in Washington, D.C. if they wanted something approximating a modern nationwide injunction. Geography and expense, not the powers of courts of equity, were the practical obstacles to nationwide injunctions for much of American history. (Though as we point out, as early as 1935, railroads were financially able and willing to join together to sue in Washington, D.C. to enjoin laws on a nationwide basis.)

In any event, it makes no sense to ask whether a remedy is a traditional equitable remedy by referring to the parties enjoined and the persons protected. Whether an equitable remedy is proper should be determined by equity’s historical principles (e.g., whether the remedy grants complete relief, whether the remedy runs in personam against a party). The history of equity is a complex and contradictory one, characterized by flexibility and discretion; rarely by unyielding rules. Especially where, as here, the history is inexact and the practice of granting nationwide injunctions is already entrenched, the proper body to pare back nationwide injunctions, should it be necessary, is Congress, not the courts

Over at Volokh, Sam Bray has two posts in response, both of which are worth a close read. In the first post, he discusses three perceived weaknesses in the legal historians’ argument:

First, the case that the historians identify as their best case does not support a national injunction. The historians’ brief presents Cherokee Nation v. Georgia, 30 U.S. 1 (1831) as the single best case from the early Republic for establishing this proposition: “Courts of equity could also issue injunctions against government officials, and by doing so, functionally restrain the actions of governments at the municipal, state, and federal levels” (6). They note that the Court “dismissed the case for lack of jurisdiction,” but they describe Story’s position in the dissent he joined as aligning with national injunctions: he “would have entered an injunction enjoining the State of Georgia and all of its officers and agents from enforcing any Georgia laws in Cherokee territory against anyone” (6; see also 15).

The claim is bold, but there are two problems with it. First, the Court dismissed the case for lack of jurisdiction—not just lack of original jurisdiction, but also lack of equitable jurisdiction. The Court admitted it might decide “the mere question of right,” i.e., title, “in a proper case with proper parties.” But instead “[t]he bill requires us to control the legislature of Georgia, and to restrain its exertion of physical force” (30 U.S. at 20). In other words, Chief Justice Marshall was saying “maybe at law, but not in equity.” Second, the plaintiff in the case was not an individual Cherokee who was seeking an injunction against the state and all its officers that would keep them from, in the words of the historians’ brief, “enforcing any Georgia laws in Cherokee territory against anyone.” The plaintiff was the Cherokee Nation. And it was suing as a foreign state defending its territory. The Court did not accept the theory of the Cherokee Nation on this point, but if it had, as the dissent by Justice Thompson did, then the requested injunction would have been plaintiff-protective. It would not have been analogous to a national injunction.

Second, the historians’ brief does not address the strong evidence that equitable principles precluded a national injunction. They argue that federal courts failed to grant national injunctions for reasons grounded in “sovereign immunity, jurisdiction, and venue—not the nature of the federal courts’ equity powers” (7). It is true there were such limits. Yet they were not insurmountable. (In Multiple Chancellors, page 428, note 40, I list a set of cases in which sovereign immunity could have been avoided.)

But here it is important to look to the evidence that the U.S. Supreme Court thought equitable principles allowed only plaintiff-protective injunctions against states. In Multiple Chancellors I discuss Georgia v. Atkins and Scott v. Donald, state cases in which the various limits mentioned in the historians’ brief would not apply. The Court insisted on plaintiff-protective injunctions as a matter of the principles of “a court of equity” (quoting Scott, which is the case that shows this point most clearly). So I agree with the historians’ brief that the other limitations were there. But they lack affirmative evidence that there was no background equitable principle of plaintiff-protective injunctions, and the evidence adduced in Multiple Chancellors shows that there was. The historians’ brief does not cite or discuss Atkins and Scott.

Furthermore, the historians’ brief entirely fails to cite or discuss Frothingham. The brief suggests that “[t]he difficulty and expense of maintaining a lawsuit in Washington, D.C., deterred plaintiffs from seeking nationwide injunctions when injunctions against local federal officials would achieve adequate results” (22). And yet Frothingham is a striking counter-example. And it was decided by the Court specifically on the intertwined grounds of Article III and equitable principles. It is the central federal case showing that equitable principles leave no room for national injunctions. This is a glaring omission.

Third, it is rather astonishing that the historians’ brief defends the national injunction by likening it to the fin de siècle anti-labor injunctions (6, 16-18) and to structural injunctions (24). The former are widely discredited and were expressly rejected by Congress; the latter have been a subject of controversy for fifty years. Whatever view one takes as to the anti-labor and structural injunctions, their weak point is their lack of basis in traditional equity. This is not their strength. I do not think it is much reassurance to say that national injunctions are traditional in equity just like the anti-labor and structural injunctions.

Bray’s second post takes a closer look at the legal historians’ specific claims and evidence. I’m very much looking forward to following how this historical debate further develops.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the California Law Review, Michigan Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and as Vice-Chair of the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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