July 2, 2025

REINING THEIR BRANCH IN:

Why Now? The Timing of the Universal Injunction Ruling (William Baude, Jul 01, 2025, Divided Argument)

Indeed, I sometimes think about the briefing in Summers v. Earth Island Institute back in October Term 2008. Summers turned out to be a moderately important Article III standing case, but one of the other questions presented by the government — this was the George W. Bush administration — was “Whether the court of appeals erred in affirming the nationwide injunctions issued by the district court.”

The argument against the nationwide injunction was not as fully developed at the time, was not as categorical, and relied more heavily on the issue preclusion precedent of US v. Mendoza. But it was there, accompanied by a warning that this practice was just starting to grow in district courts in the Ninth Circuit.

I sometimes wonder what the past two decades of public law litigation would look like if the Court had chosen to resolve the case on nationwide injunction grounds rather than the Article III standing ground it chose. Much better, I think! But for whatever reason, the Court did not do that.

The nationwide injunction also became prominent during the last few years of the Obama administration when a Texas district court issued a nationwide injunction against the DAPA program. But this time, when the Obama administration petitioned for cert. they did not ask the Court to review the nationwide injunction issue. That turned out to be especially fateful when Justice Scalia died while the case was pending resulting in the injunction being affirmed by an equally divided court. But again I wonder what would have happened if the United States had petitioned on the issue and gotten five or more votes to limit the scope of the injunction even while affirming on the merits.