Reason by Samuel Bray |The Volokh Conspiracy | 4.30.2020
Among the cases that are at the Supreme Court this term is Trump v. Pennsylvania, consolidated with Little Sisters of the Poor v. Pennsylvania. One of the questions presented is about the scope of the injunction. Nick Bagley and I submitted an amicus brief almost two months ago, and when posting about it here at the Volokh Conspiracy I mentioned that I would call attention to any opposing briefs on this question. My apologies for not being able to do that sooner. In this post I'll also mention an important new contribution to the debate by John Harrison: "Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies."
Here, then, are the amicus briefs on the other side that devote substantial space to the injunction question:
Twenty states and the District of Columbia filed an amicus brief that argued, among other things, that the scope of the injunction was consistent with equitable principles and the APA.
Zach Clopton, Amanda Frost, Suzette Malveaux, and Alan Trammell filed an amicus brief that defends nationwide injunctions with arguments from the history of equity (including the bill of peace and privity), the history of writs at common law (e.g., mandamus), and preclusion doctrine. Two notes. First, in my view mandamus has a different logic than the injunction, not focused on protection of the plaintiff and those represented by the plaintiff, but rather focused on the officer's duty, and it has its own distinctive limiting principles (e.g., only ministerial duties). Second, the brief relies on an amicus brief filed in 2018 in the Seventh Circuit sanctuary city case by some extraordinarily able legal historians. That brief is available here, and I responded in this post and this post.
More:
https://reason.com/2020/04/30/the-latest-on-the-national-injunction-at-the-supreme-court/
