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Notre Dame law professor discusses national injunctions as federal courts grapple with the topic

16-Jan-2019 10:05 AM EST, by University of Notre Dame

In two opinions issued Monday (Jan. 14), federal district courts grappled with the question of whether to give a national injunction, which blocks enforcement of a federal policy not just against the plaintiff but against anyone.

One judge did, one didn’t. And their decisions offer a window into the current state of the question, according to University of Notre Dame Law School Professor Samuel Bray, who is considered the leading expert on national injunctions and has urged Congress to pass legislation prohibiting them.

When he testified before the House subcommittee on courts, Bray said national injunctions were unheard of for most of American history until Republicans used them to stop major Obama administration programs. Now Democrats are doing the same to stop parts of President Donald Trump’s agenda.  

On Monday, the U.S. District Court for the Northern District of California granted a preliminary injunction to 13 states challenging certain rules circulated by the Department of Health and Human Services that create a religious exemption and a moral exemption to the birth control mandate under the Affordable Care Act. The court declined to give a national injunction, and instead gave one that applied only within the 13 plaintiff states. In the same case, the court had previously given a national preliminary injunction only to have it reversed by the Ninth Circuit, for the court’s failure to justify the national scope.

“The court did not offer an extensive discussion of the question,” Bray says. “It made a passing reference to the possibility of ‘direct legal conflicts’ — noting another district court’s decision that a state lacked standing to bring a similar claim. But this is not a strong argument against national injunctions. The court was using ‘direct legal conflicts’ in a very broad sense — encompassing different views of the law by different courts.

“Without national injunctions, that kind of conflict still happens — in fact, there would be more of it. More interesting is that the court, prodded by the Ninth Circuit’s reversal, seemed to treat the national injunction as unusual and exceptional. The case didn’t meet ‘the high threshold set by the Ninth Circuit for a nationwide injunction.’”

Also Monday, the U.S. District Court for the Eastern District of Pennsylvania granted a preliminary injunction to two states challenging the same rules. And this court gave a national preliminary injunction prohibiting the federal government from implementing the rules with regard to anyone, not just with regard to the plaintiffs or to people within the plaintiff states.

“In effect, this decision to give a national injunction means the restraint shown by the Northern District of California has no effect,” Bray says, “unless, of course, the Pennsylvania decision is stayed or reversed on appeal.”

More interesting, Bray says, is the opinion the court gave defending the national injunction.

“It is well written, and for supporters of national injunctions it advances the strongest legal and precedential case for them,” he says. “Nevertheless, there are multiple holes in the court’s argument.”

The two opinions — one opting for an injunction that applies in the territory of the plaintiff states, and the other protecting the plaintiff states with a national injunction — reveal the deep questions underlying the surge in national injunctions. When states sue to challenge federal rules and laws, what interests are they representing? Are they representing their own interests, something they can clearly do? Or are they representing the interests of the people, something that is more controversial?

Bray’s full statement to the House Judiciary Committee is available here. He also authored a paper on reforming national injunctions published in the Harvard Law Review.  

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