The national injunction has landed again at the Supreme Court, and maybe the third time’s the charm. Nick Bagley and I filed an amicus brief today, with the able assistance of Donald Burke and Zachary Ferguson at Robbins Russell. Which side we take is not a mystery. We wrote together about this subject in the Atlantic, and we each testified earlier this month before the Senate Committee on the Judiciary. But even for those who have been following the debate there may be some new twists. We take up the following questions:
Is the national injunction novel? (Yes.)
Is the national injunction supported by equity’s tradition of group litigation? (No.)
Is the national injunction authorized by the APA? (No.)
Is the national injunction good policy? (No—and though that conclusion will be unsurprising, we also give new arguments and new examples of the chaos caused by the national injunction.)
Finally, was a national preliminary injunction needed in this case? (No.)
If you want to read the brief, it’s here. And, as always, you should read the other side. (I’ll update this post with links to any briefs devoted to the national injunction issue in support of respondents.)
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