Amicus Curiae Brief — Little Sisters of the Poor Saints Peter and Paul Home, Petitioner v. Pennsylvania, et al.

Supreme Court briefApr 8, 2020

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No. 19-454

IN THE

Supreme Court of the United States

————

DONALD J. TRUMP, ET AL.,

Petitioners,

COMMONWEALTH OF PENNSYLVANIA, ET AL.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

————

BRIEF OF AMICI CURIAE

NATIONAL LEAGUE OF CITIES,

UNITED STATES CONFERENCE OF MAYORS,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, AND

INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION

IN SUPPORT OF RESPONDENTS

————

LISA E. SORONEN

Counsel of Record

STATE AND LOCAL LEGAL

444 N. Capitol St. NW

Suite 515

Washington, DC 20001

(202) 434-4845

lsoronen@sso.org

Counsel for Amici Curiae

April 8, 2020

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

QUESTION PRESENTED

This amicus brief only addresses part of the third

question presented in Trump v. Pennsylvania:

whether federal courts have the authority to issue

nationwide injunctions.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

TABLE OF AUTHORITIES ................................

STATEMENT OF INTEREST ............................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

DISTRICT COURTS HAVE AUTHORITY TO

PROVIDE INJUNCTIVE RELIEF THAT

BENEFITS NON-PARTIES AS WELL AS THE

PLAINTIFF .........................................................

Injunctions routinely benefit non-parties

Many of this Court’s cases have involved

injunctions that benefitted non-parties ...

The courts of appeals have unanimously

held that injunctions may benefit nonparties........................................................

Neither constitutional nor equitable principles require the benefit of injunctions to

be confined to plaintiffs ............................

The APA presumes that courts may issue

injunctions that benefit non-parties ........

Some of the government’s arguments

against nationwide injunctions bear on

their appropriateness in any particular

case, not on the court’s authority to issue

them...........................................................

These injunctions are especially important

where federalism is at stake ....................

CONCLUSION ....................................................

(iii)

TABLE OF AUTHORITIES

CASES

Page(s)

ACLU v. Reno,

31 F. Supp. 2d 473 (E.D. Pa. 1999) ..........

Ashcroft v. ACLU,

542 U.S. 656 (2004) ...................................

Bresgal v. Brock,

843 F.2d 1163 (9th Cir. 1988) ...................

Brown v. Entm’t Merchs. Ass’n,

564 U.S. 786 (2011) ...................................

California v. Azar,

911 F.3d 558 (9th Cir. 2018) .....................

City and County of San Francisco,

California v. Sessions,

349 F. Supp. 3d 92 (N.D. Cal. 2018)......... 25, 26

City of Arlington v. FCC,

668 F.3d 229 (5th Cir. 2012) .....................

City of Berkeley v. U.S. Postal Serv.,

No. C 14-04916 WHA;

No. C 14-05179 WHA,

2015 WL 1737523

(N.D. Cal. Apr. 14, 2015) ..........................

City of Chicago v. Sessions,

888 F.3d 272 (7th Cir. 2018) ..................... 25, 27

City of Evanston v. Barr,

412 F. Supp. 3d 873 (N.D. Ill. 2019)......... 25, 26

City of Los Angeles v. Barr,

941 F.3d 931 (9th Cir. 2019) .....................

TABLE OF AUTHORITIES—Continued

Page(s)

City of Los Angeles v. Sessions,

No. 18-7347, 2019 WL 1957966

(C.D. Cal. Feb. 15, 2019) ........................... 25, 27

City of Oakland v. Lynch,

798 F.3d 1159 (9th Cir. 2015) ...................

City of Philadelphia v. Att’y Gen. of U.S.,

916 F.3d 276, 293 (3d Cir. 2019) ..............

City of Providence and City of

Central Falls v. Barr,

No. 19-1802, 2020 WL 1429579

(1st Cir. 2020, Mar. 24, 2020) ...................

City of Spokane v. Federal Nat’l

Mortgage Ass’n,

775 F.3d 1113 (9th Cir. 2014) ...................

Cty. of San Francisco v. Trump,

897 F.3d 1225 (9th Cir. 2018) ...................

Decker v. O’Donnell,

661 F.2d 598 (7th Cir. 1981) .....................

Dimension Fin. Corp. v. Bd. of Governors

of the Fed. Reserve Sys.,

744 F.2d 1402 (10th Cir. 1984),

aff’d, 474 U.S. 361 (1986) .........................

Earth Island Inst. v. Ruthenbeck,

490 F. 3d 687 (9th Cir. 2007),

aff’d in part, rev’d in part on other

grounds, 555 U.S. 488 (2009) ................... 13, 20

East Bay Sanctuary Covenant v. Barr,

934 F.3d 1026 (9th Cir. 2019) ...................

TABLE OF AUTHORITIES—Continued

Page(s)

Evans v. Harnett Cty. Bd. of Educ.,

684 F.2d 304 (4th Cir. 1982) .....................

Galvan v. Levine,

490 F.2d 1255 (2d Cir. 1973) ....................

Grupo Mexicano de Desarrollo, S.A. v.

Alliance Bond Fund, Inc.,

527 U.S. 308 (1999) ................................... 17-18

Harmon v. Thornburgh,

878 F.2d 484 (D.C. Cir. 1989) ...................

Hollingsworth v. Perry,

570 U.S. 693 (2013) ...................................

Kleppe v. New Mexico,

426 U.S. 529 (1976) ...................................

Lewis v. Casey,

518 U.S. 343 (1996) ...................................

Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871 (1990) ................................... 19, 20

Lukens Steel Co. v. Perkins,

107 F.2d 627 (D.C. Cir. 1939), rev’d,

310 U.S. 113 (1940) ...................................

Meyer v. Brown & Root Constr. Co.,

661 F.2d 369 (5th Cir. 1981) .....................

Missouri v. Jenkins,

515 U.S. 70 (1995) .....................................

Montgomery Cty. v. FCC,

811 F.3d 121 (4th Cir. 2015) .....................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

National Mining Ass’n v. U.S. Army

Corps of Eng’rs.,

145 F.3d 1399 (D.C. Cir. 1998) .................

New Mexico v. Morton,

406 F. Supp. 1237 (D.N.M. 1975) .............

New York v. U.S. Dep’t of Justice,

951 F.3d 84 (2d. Cir. 2020) .......................

Pennsylvania v. President U.S.,

930 F.3d 543 (3d. Cir. 2019) .....................

Printz v. United States,

521 U.S. 898 (1997) ...................................

Printz v. United States,

854 F. Supp. 1503 (D. Mont. 1994)...........

7-8

Richmond Tenants Org., Inc. v. Kemp,

956 F.2d 1300 (4th Cir. 1992) ...................

Sable Commc’ns. of Calif., Inc. v. FCC,

492 U.S. 115 (1989) ...................................

Sable Commc’ns. of Calif., Inc. v. FCC,

692 F. Supp. 1208 (C.D. Cal. 1988) ..........

Selective Serv. Sys. v. Minn. Pub.

Interest Research Grp.,

468 U.S. 841 (1984) .....................................

Sprogis v. United Air Lines, Inc.,

444 F.2d 1194 (7th Cir. 1971) ...................

Texas v. United States,

809 F.3d 134 (5th Cir. 2015),

aff’d by an equally divided Court,

136 S. Ct. 2271 (2016) ......................... 11, 12, 22

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Town of Chester v. Laroe Estates, Inc.,

137 S. Ct. 1645 (2017) ...............................

Trump v. Hawaii,

138 S. Ct. 2393 (2018) ...............................

United States v. Oakland Cannabis

Buyers’ Coop.,

532 U.S. 483 (2001) ...................................

Video Software Dealers Ass’n v.

Schwarzenegger,

No. C-05-04188 RMW, 2007 WL

2261546 (N.D. Cal. Aug. 6, 2007) .............

Virginia Soc’y for Human Life,

Inc. v. FEC,

263 F.3d 379 (4th Cir. 2001) .....................

Vulcan Soc’y v. Civil Serv. Comm’n,

490 F.2d 387 (2d Cir. 1973) ......................

Walters v. Nat’l Ass’n of Radiation

Survivors,

473 U.S. 305 (1985) ...................................

Washington v. Reno,

35 F.3d 1093 (6th Cir. 1994) .....................

CONSTITUTION

U.S. Const. amend. I ....................................

U.S. Const. amend. VIII ...............................

U.S. Const. amend. XIV ...............................

STATUTES

5 U.S.C. § 705 ...............................................

TABLE OF AUTHORITIES—Continued

Page(s)

5 U.S.C. § 706(2) ........................................... 19, 20

34 U.S.C. § 10152 .........................................

RULES

Fed. R. Civ. P. 23 ..........................................

COURT FILINGS

Brief for Petitioner, United States v. Texas,

136 S. Ct. 2271 (2016) (No. 15-674)..........

Brief for Respondent, Texas v. United

States, 809 F.3d 134 (5th Cir. 2015) (No.

15-674) .......................................................

Order Granting Petition for Rehearing En

Banc, City of Chicago v. Sessions, 888

F.3d 272 (7th Cir. 2018) (No. 17-2991) .... 14, 25

Order Staying Preliminary Injunction in

Part, City of Chicago v. Sessions, 888

F.3d 272 (7th Cir. 2018) (No. 17-2991) .... 14, 25

OTHER AUTHORITIES

Amanda Frost, In Defense of Nationwide

Injunctions, 93 N.Y.U. L. Rev. 1065

(2018) .........................................................

American Law Institute, Principles of the

Law of Aggregate Litigation (2010) ..........

Bernard Schwartz, Forms of Review Action

in English Administrative Law, 56

Colum. L. Rev. 203 (1956) ........................

TABLE OF AUTHORITIES—Continued

Page(s)

7A Charles Alan Wright et al., Federal

Practice & Procedure (3d ed. Westlaw) ....

Getzel Berger, Nationwide Injunctions

Against the Federal Government: A

Structural Approach, 92 N.Y.U. Law R.

1068 (Oct. 2017) ........................................

Gregg Costa, An Old Solution to the

Nationwide Injunction Problem, Harvard

Law Review Blog (Jan. 25, 2018), https://

blog.harvardlawreview.org/an-old-solutionto-the-nationwide-injunction-problem/ .... 23, 26

Mila Sohoni, The Lost History of the

Universal Injunction, 133 Harv. L. Rev.

920 (2020) .................................................. 18, 19

Philip Hamburger, Law and Judicial Duty

(2008) .........................................................

Spencer E. Amdur & David Hausman, Response, Nationwide Injunctions and

Nationwide Harm, 131 Harv. L. Rev. F.

49 (2017) ....................................................

Steve Pincus, 1688: The First Modern

Revolution (2011) ......................................

U.S. Census Bureau, 2012 Census of

Governments (2012), https://www.census.

gov/data/tables/2012/econ/gus/2012-gove

rnme nts.html (Last Revised: March 31,

2020) ..........................................................

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Census Bureau, Government Organization Summary Report: 2012 (released

Sept. 26, 2013), available at https://

www2.census.gov/govs/cog/g12_org.pdf ...

U.S. Census Bureau, QuickFacts, Green

Bay city, Wisconsin, https://www.census.

gov/quickfacts/greenbaycitywisconsin (last

visited Mar. 17, 2020) ...............................

U.S. Dept. of Justice, Office of the Inspector

General Audit Division, Audit of the Office

of Justice Programs Bureau of Justice

Assistance Edward Byrne Memorial Justice

Assistance Grant Awarded to the Green

Bay Police Department, Green Bay,

Wisconsin (Oct. 2012) ...............................

3 William Blackstone, Commentaries on the

Laws of England (1768) ............................

STATEMENT OF INTEREST1

The National League of Cities (NLC) is the oldest

and largest organization representing municipal governments throughout the United States. Working in

partnership with 49 state municipal leagues, NLC is

the voice of more than 19,000 American cities, towns,

and villages, representing collectively more than 200

million people. NLC works to strengthen local leadership, influence federal policy, and drive innovative

solutions.

The U.S. Conference of Mayors (USCM) is the official nonpartisan organization of all U.S. cities with a

population of more than 30,000 people, which includes

over 1,200 cities at present. Each city is represented

in the USCM by its chief elected official, the mayor.

The International City/County Management Association (ICMA) is a nonprofit professional and educational organization of over 12,000 appointed chief

executives and assistants, serving cities, counties,

towns, and regional entities. ICMA’s mission is to

advance professional local government through leadership, management, innovation, and ethics.

The International Municipal Lawyers Association

(IMLA) is a nonprofit, nonpartisan, professional

organization consisting of more than 2,500 members.

Membership is composed of local government entities,

including cities, counties, and subdivisions thereof, as

represented by their chief legal officers, state municipal leagues, and individual attorneys. IMLA’s mission

is to advance the responsible development of munic1

No counsel for a party authored this brief in whole or in part,

and no person other than amici made a monetary contribution

intended to fund the preparation or submission of this brief. All

parties have filed a blanket consent to amicus briefs.

ipal law through education and advocacy by providing

the collective viewpoint of local governments around

the country on legal issues before state and federal

appellate courts.

Amici speak for local governments, most of which

are very small and lack the resources to sue the United

States when it oversteps the bounds of federalism.

They rely on a handful of big cities to obtain injunctions barring federal encroachment. The federal government’s deeply mistaken view of federal courts’

remedial power advanced in section III of the United

States’ brief would cause great harm to local governments throughout the country.

SUMMARY OF ARGUMENT

Where a factory unlawfully pollutes the air, may a

district court enjoin the pollution? Or must the court’s

injunction be limited to only those particles of pollution that affect the plaintiff personally?

Where a state operates unlawfully segregated

schools, may a district court require the schools to be

integrated? Or is the court limited to ordering the

schools to admit only the individual students named

as plaintiffs?

Where the federal government exceeds its constitutional authority, may a district court order the government to stop? Or is the court constrained to order the

government to stop only with respect to the plaintiffs,

so that every state, city, and individual affected by

the federal government’s overreach must bring its

own separate lawsuit and obtain its own separate

injunction?

The conventional answer to each of these questions

is, of course, that federal courts have the authority to

provide injunctive relief that benefits nonparties as

well as the plaintiff. Provided that the plaintiff has

standing, the court may require the defendant to cease

its unlawful activity, even if the plaintiff will not be

the only one who benefits. The court certainly need not

do so in every case—injunctions often benefit the

plaintiff and no one else—but in an appropriate case,

the court has the authority to issue an injunction that

benefits nonparties in addition to the plaintiff.

The government spends numerous pages of its brief

criticizing nationwide injunctions generally, (U.S. Br.

42-46), and the nationwide injunction in this case in

particular, (U.S. Br. 46-50). This brief expresses no

view on the merits of the injunction in this case. The

government’s position is that injunctions may not

“extend[] relief beyond the harms to ‘any plaintiff in

th[e] lawsuit.’” (U.S. Br. 43).

The government is mistaken. District courts have

the authority to provide injunctive relief that benefits

non-parties as well as the plaintiff. These injunctions

are extremely common. In fact, they have figured in

many of this Court’s cases. This is why the courts of

appeals have unanimously held that injunctions may

benefit non-parties. Contrary to the government’s

view, neither constitutional nor equitable principles

require the benefit of injunctions to be confined

to plaintiffs. Some of the government’s arguments

against these injunctions, in any event, bear on their

appropriateness in any given case, not on the court’s

authority to issue them.

ARGUMENT

DISTRICT COURTS HAVE AUTHORITY TO

PROVIDE INJUNCTIVE RELIEF THAT BENEFITS NON-PARTIES AS WELL AS THE

PLAINTIFF.

A. Injunctions routinely benefit non-parties.

The United States’ main objection to nationwide

injunctions is that they often benefit non-parties as

well as the plaintiff. But this is so common in the case

of non-nationwide injunctions that we often don’t even

notice it.

For example:

● When a court finds that a religious display

violates the Establishment Clause, the

court often orders the display to be taken

down. The court does not redress only the

plaintiff’s injury—for instance, by ordering the display to be covered up whenever

the plaintiff is within viewing distance.

Rather, the court simply forbids the

unlawful display, in a way that benefits

everyone who may see the display, not just

the plaintiff.

● When a court finds that the drawing of

electoral districts violates the Equal Protection Clause or the Voting Rights Act,

the court often orders the districts to be

redrawn in a lawful manner. The court does

not redress only the plaintiff’s injury—for

instance, by boosting the power of the

plaintiff’s own vote but no one else’s.

Rather, the court simply forbids use of the

unlawful districts, in a way that benefits

everyone whose vote is affected, not just

the plaintiff.

● When a court finds that prison conditions

violate the Eighth Amendment, the court

often orders the prison to correct those

conditions. The court does not redress

only the plaintiff’s injury—for instance, by

requiring that the plaintiff, but no other

prisoner, be given minimally adequate food

and shelter. Rather, the court simply

prohibits the unlawful prison conditions,

in a way that benefits all prisoners, not

just the plaintiff.

We could fill this brief with hundreds of similar

examples, but the point should already be clear.

Injunctions—especially injunctions against the government—routinely benefit everyone affected by the

government’s conduct. In such cases, relief is not

limited to the plaintiff. As the Wright & Miller treatise

explains,

In most civil-rights cases plaintiff seeks

injunctive or declaratory relief that will halt

a discriminatory employment practice or that

will strike down a statute, rule, or ordinance

on the ground that it is constitutionally

offensive. Whether plaintiff proceeds as an

individual or on a class-suit basis, the requested relief generally will benefit not only

the claimant but all other persons subject to

the practice or the rule under attack.

7A Charles Alan Wright et al., Federal Practice &

Procedure § 1771 (3d ed. Westlaw).

In its Principles of the Law of Aggregate Litigation,

the American Law Institute recognizes the same

truth:

When a claimant seeks a prohibitory injunction or a declaratory judgment with

respect to a generally applicable policy or

practice maintained by a defendant, those

remedies—if afforded—generally stand to

benefit or otherwise affect all persons subject

to the disputed policy or practice, even if relief

is nominally granted only as to the named

claimant. Even in litigation against governmental entities, to which limitations on preclusion may apply as a formal matter, the

generally applicable nature of the policy or

practice typically means that the defendant

government will be in a position, as a practical matter, either to maintain or to discontinue the disputed policy or practice as a

whole, not to afford relief therefrom only to

the named claimant.

American Law Institute, Principles of the Law of

Aggregate Litigation § 2.04 comment a (2010).

In short, injunctions routinely benefit non-parties

whether they are called “nationwide” or otherwise.

B. Many of this Court’s cases have involved

injunctions that benefitted non-parties.

Injunctions that benefit non-parties have figured in

many of this Court’s cases. Such injunctions are so

commonplace that the governmental defendants in

these cases did not even argue in this Court that the

lower court had exceeded its authority by extending

the benefit of the injunction to non-parties.

For example:

● In Hollingsworth v. Perry, 570 U.S. 693,

702 (2013), the district court enjoined

California officials from enforcing a state

law barring gay marriage—not just

against the plaintiffs but against everyone.

● In Brown v. Entm’t Merchs. Ass’n, 564

U.S. 786, 790 (2011), the district court

enjoined the enforcement of a state law

imposing restrictions on violent video

games—not just against the plaintiffs but

against everyone. (For the text of the

injunction, see Video Software Dealers

Ass’n v. Schwarzenegger, No. C-05-04188

RMW, 2007 WL 2261546, at *12 (N.D. Cal.

Aug. 6, 2007)).

● In Ashcroft v. ACLU, 542 U.S. 656, 663

(2004), the district court enjoined the

Attorney General from enforcing a statute

restricting explicit materials on the

Internet—not just against the plaintiffs

but against everyone. (For the text of the

injunction, see ACLU v. Reno, 31 F. Supp.

2d 473, 498-99 (E.D. Pa. 1999)).

● In Printz v. United States, 521 U.S. 898,

904 (1997), the district court enjoined the

United States from enforcing a statute

requiring state and local law enforcement

officers to conduct background checks of

prospective handgun purchasers—not just

against the plaintiff but against everyone.

(For the text of the injunction, see Printz

v. United States, 854 F. Supp. 1503, 151920 (D. Mont. 1994)).

● In Sable Commc’ns. of Calif., Inc. v. FCC,

492 U.S. 115, 119 (1989), the district court

enjoined the FCC from enforcing a statute

banning indecent telephone messages—

not just against the plaintiff but against

everyone. (For the text of the injunction,

see Sable Commc’ns. of Calif., Inc. v. FCC,

692 F. Supp. 1208, 1210 (C.D. Cal. 1988)).

● In Walters v. Nat’l Ass’n of Radiation

Survivors, 473 U.S. 305, 316 (1985), the

district court enjoined the Veterans Administration from enforcing a statute limiting

attorneys’ fees in proceedings before the

VA—not just against the plaintiffs but

against everyone. See also id. at 336

(O’Connor, J., concurring) (describing the

district court’s order as “a nationwide

injunction”).

● In Selective Serv. Sys. v. Minn. Pub.

Interest Research Grp., 468 U.S. 841, 846

(1984), the district court entered a “nationwide injunction” barring the federal government from enforcing a statute denying

education funds to students who failed to

plaintiffs but against everyone.

● In Kleppe v. New Mexico, 426 U.S. 529, 534

(1976), the district court enjoined the

Secretary of the Interior from enforcing

the Wild Free-Roaming Horses and

Burros Act—not just against the plaintiffs

but against everyone. (For the text of the

injunction, see New Mexico v. Morton, 406

F. Supp. 1237, 1239 (D.N.M. 1975)).

This is just a partial list. We could have provided

many more examples.

When the government is found to be acting

unlawfully, the district courts routinely enjoin the

government from doing so, without limiting the

injunction to benefit only the plaintiffs.

C. The courts of appeals have unanimously

held that injunctions may benefit nonparties.

Every court of appeals in which the question has

arisen has concluded that federal courts have

the authority to issue an injunction that benefits

nonparties.

In two opinions by Judge Friendly, the Second

Circuit held that a plaintiff need not file a class action

to obtain relief for similarly-situated people in suits

alleging unconstitutional government action, because

an injunction could prohibit the government from

acting unconstitutionally with respect to people

other than the plaintiff. In Vulcan Soc’y v. Civil Serv.

Comm’n, 490 F.2d 387, 391 (2d Cir. 1973), the Second

Circuit affirmed an injunction barring the New York

City Fire Department from using a discriminatory

employment examination. The district judge “was

entirely right in thinking it unnecessary, from the

plaintiffs’ standpoint, for him to decide on class action

designation in order to pass upon the issues raised,”

the Second Circuit explained, because “[i]f the examination procedures were found unconstitutional as

regards the named plaintiffs, they were equally so as

regards all eligible blacks and Hispanics.” Id. at 399.

Judge Friendly returned to the issue in a second

case later the same year. “[I]nsofar as the relief sought

is prohibitory, an action seeking declaratory or injunctive relief against state officials on the ground of

unconstitutionality of a statute or administrative

practice is the archetype of one where class action

designation is largely a formality,” he wrote for the

court. Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir.

1973). “[W]hat is important in such a case … is that

the judgment run to the benefit not only of the named

plaintiffs but of all others similarly situated.” Id.

The Fourth Circuit similarly affirmed a “nationwide” injunction prohibiting the federal government

from unconstitutionally using a summary process to

evict tenants from public housing, in a suit brought by

tenants and tenant organizations in Richmond and

Baltimore. Richmond Tenants Org., Inc. v. Kemp, 956

F.2d 1300, 1302 (4th Cir. 1992). The government

challenged “the nationwide scope of the permanent

injunction issued by the district court,” id. at 1308, but

the Fourth Circuit rejected the government’s challenge on the ground that the benefit of an injunction

need not be limited only to the plaintiffs before the

court. “[A] federal district court has wide discretion to

fashion appropriate injunctive relief,” the Fourth

Circuit held. Id. “When required by the circumstances

of the case, district courts have issued injunctions

which apply to conduct by the Attorney General of

litigation in other federal courts.” Id. See also Virginia

Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 393

(4th Cir. 2001) (noting that “[n]ationwide injunctions

are appropriate if necessary to afford relief to the

prevailing party”); Evans v. Harnett Cty. Bd. of Educ.,

684 F.2d 304, 306 (4th Cir. 1982) (“An injunction

warranted by a finding of unlawful discrimination is

not prohibited merely because it confers benefits upon

individuals who were not plaintiffs or members of a

formally certified class.”).

The Fifth Circuit takes the same view. In Texas v.

United States, 809 F.3d 134, 188 (5th Cir. 2015), aff’d

by an equally divided Court, 136 S. Ct. 2271 (2016),

the Fifth Circuit affirmed an injunction prohibiting

the federal government from implementing the Deferred Action for Parental Accountability (DAPA)

immigration program anywhere in the country, not

merely in the states that filed suit. The federal

government argued “that the nationwide scope of the

injunction is an abuse of discretion and request[ed]

that it be confined to Texas or the plaintiff states.” Id.

at 187. But the Fifth Circuit rejected the government’s

argument. “Congress has instructed that the immigration laws of the United States should be enforced

vigorously and uniformly,” the Fifth Circuit pointed

out, “and the Supreme Court has described immigration policy as a comprehensive and unified system.” Id.

at 187-88 (footnotes and internal quotation marks

omitted). The Fifth Circuit concluded: “Partial implementation of DAPA would detract from the integrated

scheme of regulation created by Congress, and there is

a substantial likelihood that a geographically-limited

injunction would be ineffective because DAPA beneficiaries would be free to move among states.” Id. at 188

(footnotes, brackets, and internal quotation marks

omitted). The Fifth Circuit held: “It is not beyond the

power of a court, in appropriate circumstances, to

issue a nationwide injunction.” Id. See also Meyer v.

Brown & Root Constr. Co., 661 F.2d 369, 374 (5th Cir.

1981) (“Injunctive relief which benefits non-parties

may sometimes be proper even where the suit is not

brought as a Rule 23 class action.”).

While the government has been routinely challenging nationwide injunctions in the last two years, a

good indication of the novelty of the government’s

position is the fact that in Texas v. United States, just

four years ago, the government did not even argue that

district courts lack the authority to issue injunctions

that benefit non-parties. In the Fifth Circuit, the

government merely argued that such an injunction

was unwarranted on the facts of the case. Brief for

Respondent, Texas v. United States, 809 F.3d 134 (5th

Cir. 2015) (No. 15-674). In this Court, the government

did not challenge the scope of the injunction at all.

Brief for Petitioner, United States v. Texas, 136 S. Ct.

2271 (2016) (No. 15-674).

The Sixth Circuit has also approved of injunctions

that benefit non-parties as well as the plaintiff. In

Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir.

1994), the government challenged as overly broad an

injunction barring the use of certain funds for prison

expenditures throughout the federal prison system.

When the injunction was granted, the plaintiffs were

not a nationwide class, but were individual inmates

incarcerated in a single prison. Id. The Sixth Circuit

nevertheless held that “it cannot be successfully

argued that a nationwide injunction was improper.”

Id. The court explained: “Because relief for the named

plaintiffs in the case would also necessarily extend to

all federal inmates, the district court did not err in

granting wide-ranging injunctive relief prior to

certifying a nationwide class of plaintiffs.” Id. at 1104.

The Seventh Circuit likewise affirmed an injunction

benefitting non-parties, in a suit filed by three individual residents of Milwaukee. Decker v. O’Donnell, 661

F.2d 598, 604 (7th Cir. 1981). The Seventh Circuit

rejected the government’s contention that “the district

court erred in entering a nationwide injunction,” on

the ground that the plaintiffs challenged “the facial

constitutionality of the statute,” not merely the statute’s constitutionality as applied to them. Id. at 618.

See also Sprogis v. United Air Lines, Inc., 444 F.2d

1194, 1202 (7th Cir. 1971) (“affirming the district

court’s power to consider extending [injunctive] relief

beyond the named plaintiff”).

The Ninth Circuit has also approved of injunctions

that benefit non-parties in appropriate cases. In Earth

Island Inst. v. Ruthenbeck, 490 F. 3d 687, 699 (9th Cir.

2007), aff’d in part, rev’d in part on other grounds, 555

U.S. 488 (2009), the Ninth Circuit affirmed a district

court order prohibiting the Forest Service from enforcing regulations the court found contrary to the statute.

The Ninth Circuit rejected the Forest Service’s contention that the injunction should be limited to the

Eastern District of California, where the suit was filed.

Id. In Bresgal v. Brock, 843 F.2d 1163, 1169-71 (9th

Cir. 1988), the Ninth Circuit affirmed an injunction

barring the Department of Labor from enforcing a

certain statute against forestry workers. The Labor

Department argued that “the injunction can cover

only the named plaintiffs,” id. at 1169, but the court

disagreed. The court held: “There is no general requirement that an injunction affect only the parties in

the suit.” Id.

The Tenth Circuit itself enjoined the Federal

Reserve Board from enforcing a regulation that

exceeded its statutory authority, in a case that came

to the court directly from the Board. Dimension Fin.

Corp. v. Bd. of Governors of the Fed. Reserve Sys., 744

F.2d 1402 (10th Cir. 1984), aff’d, 474 U.S. 361 (1986).

The Tenth Circuit did not limit the injunction to the

plaintiffs. Rather, the court simply “set aside” the

offending regulation, and ordered the Board not to

“attempt to enforce or implement” it against anyone.

Id. at 1411.

Finally, the D.C. Circuit has also rejected the government’s challenge to “the district court’s issuance of

a nationwide injunction.” National Mining Ass’n v.

U.S. Army Corps of Eng’rs., 145 F.3d 1399, 1408 (D.C.

Cir. 1998). Observing that “the district courts enjoy

broad discretion in awarding injunctive relief,” id., the

D.C. Circuit held that “when a reviewing court determines that agency regulations are unlawful, the

ordinary result is that the rules are vacated—not that

their application to the individual petitioners is proscribed.” Id. at 1409 (citation, brackets, and internal

quotation marks omitted).

In summary, eight of the circuits have considered

whether district courts have the authority to issue

injunctions that benefit non-parties as well as the

plaintiffs. Every single one has held that they do. No

circuit has agreed with the government’s argument

that injunctions may only benefit the plaintiffs.2

Since Trump v. Hawaii, 138 S. Ct. 2393 (2018), some federal

courts of appeals have narrowed nationwide injunctions, including in a case related to this one, California v. Azar, 911 F.3d 558,

582-85 (9th Cir. 2018), sometimes discussing when they are and

aren’t appropriate. See, e.g., Cty. of San Francisco v. Trump, 897

F.3d 1225, 1244-45 (9th Cir. 2018); East Bay Sanctuary Covenant

v. Barr, 934 F.3d 1026, 1028-29 (9th Cir. 2019); Order Staying

Preliminary Injunction in Part, City of Chicago v. Sessions, 888

F.3d 272 (7th Cir. 2018) (No. 17-2991); Order Granting Petition

for Rehearing En Banc at 1, City of Chicago v. Sessions, 888 F.3d

272 (7th Cir. 2018) (No. 17-2991).

D. Neither constitutional nor equitable principles require the benefit of injunctions to

be confined to plaintiffs.

The government suggests (U.S. Br. 43-45) that

principles of standing and principles of equity prohibit

district courts from enjoining the government’s conduct with respect to anyone other than the plaintiff.

The government errs in both respects.

1. A plaintiff obviously must have standing to

obtain relief. Town of Chester v. Laroe Estates, Inc.,

137 S. Ct. 1645, 1650 (2017). And remedies should of

course be tailored “to the inadequacy that produced

the injury in fact that the plaintiff has established.”

Lewis v. Casey, 518 U.S. 343, 357 (1996). But when

both of these requirements are satisfied, there is no

constitutional impediment to an injunction from which

non-parties may also benefit.

In a school desegregation case, for example, the

plaintiffs are often individual schoolchildren who

desire to attend integrated schools. They have standing, because they are injured by the existing system of

segregation. An injunction ordering the schools to

integrate would be appropriately tailored to redress

this injury. Such an injunction would also provide the

identical benefit to thousands of other schoolchildren

who are not plaintiffs. They too would now be able to

attend integrated schools. The law of standing does

not require a court to exclude these other schoolchildren from receiving the benefit of the injunction.

The government describes the benefits of school

desegregation to non-plaintiffs as “incidental,” (U.S.

Br. 44), but that is a gross understatement. Likewise,

the government states that in class actions and desegregation cases “courts are adjudicating only the rights

of the parties before them, not passing on laws or

issues as a general matter.” (U.S. Br. 44). But courts

never “pass[] on laws or issues as a general matter.”

And regardless, non-parties may and have benefited

in class actions and desegregation cases.

Likewise, suppose the President were to issue an

executive order purporting to bar left-handed people

from voting. A left-handed citizen would clearly have

standing to challenge the executive order. An injunction setting aside the executive order would be

appropriately tailored to redress the injury. Such an

injunction would also provide the identical benefit to

millions of left-handed citizens who are not plaintiffs.

There is nothing in the law of standing that makes this

result unconstitutional.

2. The government is equally mistaken in asserting

(U.S. Br. 44) that equitable principles limit the

benefits of injunctive relief to the plaintiff. This assertion rests entirely on the historical claim that in 18thcentury England, an injunction could not provide

benefits to non-parties. There is good reason to doubt

the accuracy of this claim. Blackstone observed that in

nuisance cases, a prevailing individual plaintiff was

entitled “[t]o have the nu[i]sance abated,” 3 William

Blackstone, Commentaries on the Laws of England

221 (1768), in several factual settings where the

plaintiff was clearly not the only person who would

benefit, such as where a ditch has been “dug across a

public way,” id. at 220, or where a person “exercises

any offensive trade” too close to an inhabited area, id.

at 217. The government cites no evidence that in such

cases equity required excluding non-parties from the

benefits of an injunction—for instance, by allowing

only the plaintiff to cross the ditch, or by enjoining only

the noxious odors that reached the plaintiff.

In fact, one legal scholar argues that the bill of peace

process used by the English Court of Chancery provided the modern equivalent of a nationwide injunction. Amanda Frost, In Defense of Nationwide

Injunctions, 93 N.Y.U. L. Rev. 1065, 1080-81 (2018).

Frost cites to Federal Practice and Procedure “describing how the English Court of Chancery developed the

bill of peace to enable an equity court to hear an action

by or against representatives of a group if the plaintiff

could show that the number of people was so large as

to make joinder impracticable, that all members of the

group possessed a joint interest in the question, and

that the named parties were adequate representatives

of the group.” Id. at 1081 n.77.

In any event, the question in this case—whether a

court may prohibit the government from exceeding its

authority by issuing an injunction that benefits nonparties—could not have arisen in 18th-century

England, for two reasons. First, England did not have

our concept of judicial review. Courts had no power

to invalidate an Act of Parliament on the ground

that Parliament had exceeded its authority. Philip

Hamburger, Law and Judicial Duty 237 (2008).

Second, because Chancery was understood as an

emanation of the Crown, there could be no injunctions

against the Crown or its servants. Bernard Schwartz,

Forms of Review Action in English Administrative

Law, 56 Colum. L. Rev. 203, 214 (1956). English courts

lacked the power to enjoin the other two branches of

government from acting unlawfully.

Thus even if 250-year-old English practice is a

reliable guide to the equitable remedies modern

litigants may obtain against private parties, see Grupo

Mexicano de Desarrollo, S.A. v. Alliance Bond Fund,

Inc., 527 U.S. 308, 318-19 (1999), English practice

offers scant guidance when it comes to enjoining the

government. When English monarchs exceeded their

constitutional authority, they could be constrained

only by military force, not by the courts. See Steve

Pincus, 1688: The First Modern Revolution (2011). By

contrast, much of our system of government was

framed as an antidote to the English experience of the

previous century. American courts can enjoin the

government in ways that their English predecessors

could not.

Finally, while some have claimed that nationwide

injunctions are a relatively new phenomenon, at least

one legal scholar has recently disagreed. Mila Sohoni

traces the “lost history” of nationwide injunctions

noting that “the Supreme Court in the 1890s endorsed

an expansive view of the powers of federal courts to

control the rights of nonparties through injunctive

decrees.” Mila Sohoni, The Lost History of the

Universal Injunction, 133 Harv. L. Rev. 920, 929

(2020). She also points to two Supreme Court cases

from 1913 where this Court issued nationwide injunctions. Id. at 924-25. Significantly, after surveying the

relevant history Sohoni also concludes that “[t]he

universal injunction against federal agency action,

which is so often in the news today, has a longer

pedigree than is generally known.” Id. at 982. She

points to Lukens Steel Co. v. Perkins, 107 F.2d 627

(D.C. Cir. 1939) (per curiam), rev’d, 310 U.S. 113

(1940), where the D.C. Circuit enjoined a Secretary of

Labor determination from being applied to anyone.

“Although the Supreme Court reversed this decision for

lack of standing, its reasoning in that case—along with

its contemporaneous decisions concerning state and

local laws—reveals that the Court was not rejecting

the propriety of injunctions reaching beyond the plaintiffs

in cases where the plaintiffs did have standing.”

Sohoni, supra, at 982.

E. The APA presumes that courts may issue

injunctions that benefit non-parties.

In the Administrative Procedure Act, Congress

required the courts to “hold unlawful and set aside

agency action” under various conditions. 5 U.S.C.

§ 706(2) (emphasis added). The government argues

that this language disallows nationwide injunctions.

But the text of the APA says where a court finds that

an agency has exceeded its authority, the court must

“set aside” the agency action. Not “set aside only with

respect to the plaintiff.” Just “set aside.”

When a court sets aside an unlawful regulation, the

plaintiff is often not the only beneficiary. The court

orders the agency not to enforce the regulation, and

everyone who would otherwise be subject to the

regulation receives the same benefit. For instance, in

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990), the

Court observed that if the Bureau of Land Management program at issue had been an “agency action,” it

could have been “challenged under the APA by a

person adversely affected—and the entire ‘land withdrawal review program,’ insofar as the content of that

particular action is concerned, would thereby be

affected.” Id. at 890 n.2.

Justice Blackmun discussed this point further in his

dissenting opinion, in a passage with which the

Court’s majority did not disagree.

In some cases the “agency action” will consist

of a rule of broad applicability; and if the

plaintiff prevails, the result is that the rule is

invalidated, not simply that the court forbids

its application to a particular individual.

Under these circumstances a single plaintiff,

so long as he is injured by the rule, may

obtain “programmatic” relief that affects the

rights of parties not before the court.

Id. at 913 (Blackmun, J., dissenting).

Congress thus presumed in the APA that courts

could grant injunctive relief that conferred benefits on

non-parties as well as on the plaintiffs. Under “[t]raditional administrative law principles,” when courts set

aside unlawful agency actions in suits brought under

the APA, “the ordinary result is that the rules are

vacated—not that their application to the individual

petitioners is proscribed.” Harmon v. Thornburgh, 878

F.2d 484, 495 n.21 (D.C. Cir. 1989). See also Earth

Island Inst., 490 F.3d at 699 (noting that where a court

sets aside an unlawful regulation, a “nationwide

injunction” is “compelled by the text of the Administrative Procedure Act”).

The government also argues that “[t]he court of

appeals’ reliance on the APA to support the nationwide injunction is misplaced” first because this case

“does not involve a final decision under Section

706(2) . . . but rather a preliminary injunction. And

Section 705 of the APA itself adopts the general rule

that preliminary injunctive relief should be limited as

‘necessary to prevent irreparable injury’—i.e., the

injury to the parties who brought the suit.” However,

the APA doesn’t allow preliminary injunctive relief

“necessary to prevent irreparable injury to the plaintiff.”

It just says “necessary to prevent irreparable injury.”

F. Some of the government’s arguments

against nationwide injunctions bear on

their appropriateness in any particular

case, not on the court’s authority to issue

them.

A district court has the authority to grant an

injunction that benefits non-parties as well as the

plaintiff, but that does not mean such an injunction is

always appropriate. In any particular case there may

be good arguments for granting an injunction that only

benefits the plaintiff. The government lists some of

them in its brief (U.S. Br. 45-46). Contrary to the

government’s view, however, these arguments bear

only on the appropriate scope of an injunction in any

particular case, not on the court’s authority to issue an

injunction that benefits non-parties.

The district court has broad discretion in fashioning

injunctive relief. United States v. Oakland Cannabis

Buyers’ Coop., 532 U.S. 483, 496 (2001). In exercising

this discretion, the court may find good reasons for

limiting the benefit of the injunction to the plaintiff. In

any given case, there may well be considerations

counseling in favor of a limited injunction that allows

the defendant to continue its unlawful conduct with

respect to people other than the plaintiff.

On the other hand, in any given case there may also

be sound prudential reasons for enjoining the defendant from acting unlawfully, full stop. The scope of an

appropriate remedy depends on the scope of the

defendant’s violation. Missouri v. Jenkins, 515 U.S. 70,

88-89 (1995). Where the defendant’s violation harms a

great number of people in addition to the plaintiff,

there will be cases in which the most sensible way to

secure relief for the plaintiff will be an injunction

targeted broadly at the scope of the defendant’s

violation rather than narrowly at the scope of the

plaintiff’s own personal harm. This case is a good

example. An injunction applying only to New Jersey

and Pennsylvania would have had a limited impact on

both states as a total of 800,000 workers in these

states are employed out of state. Pennsylvania v.

President U.S., 930 F.3d 543, 576 (3d. Cir. 2019).

Similarly, in Texas v. United States, the Fifth Circuit

affirmed a nationwide injunction barring the government from enforcing the DAPA immigration program,

even in states that were not plaintiffs. The Fifth

Circuit found that “a geographically-limited injunction

would be ineffective because DAPA beneficiaries

would be free to move among states.” 809 F.3d at 188.

Moreover, in considering the proper scope of an

injunction the court might take into account the

wastefulness of requiring every person affected to file

his or her own separate suit. For example, if the

President were to take a patently unconstitutional

action, one that no reasonable jurist could find lawful,

a court might find that there is an interest in avoiding

enormous amounts of duplicative and pointless

litigation.

Such considerations, on both sides, should inform

the court’s discretion to choose the appropriate scope

of an injunction in any particular case. But the key

point is that these considerations have no bearing on

the court’s authority to grant an injunction that

benefits non-parties in addition to the plaintiff.

Rather, they are matters the court should consider in

exercising that authority.

G. These injunctions are especially important

where federalism is at stake.

As discussed in the last subsection, nationwide

injunctions have many advantages including judicial

efficiency, uniformity, and providing complete relief to

the plaintiff. Getzel Berger, Nationwide Injunctions

Against the Federal Government: A Structural

Approach, 92 N.Y.U. Law R. 1068, 1082-84 (Oct. 2017).

As Gregg Costa asks, do we really want to live in a

world where “1600 injunctions had to issue against a

single provision of a New Deal statute?” Gregg Costa,

An Old Solution to the Nationwide Injunction Problem, Harvard Law Review Blog (Jan. 25, 2018).3 Local

governments in particular benefit from nationwide

injunctions.

When the federal government oversteps its constitutional bounds, it is often at the expense of local governments. But most local governments are very small.

They lack the budgets and the legal staffs to litigate

against the United States. More specifically, there are

more than 90,000 local governments in the United

States. U.S. Census Bureau, Government Organization Summary Report: 2012 at 1.4 Most are tiny.

Eighty-five percent of municipalities have fewer than

10,000 residents. U.S. Census Bureau, 2012 Census of

Governments table 7 (2012).5

In principle, we have a federalist system that protects local governments against encroachment, but

https://blog.harvardlawreview.org/an-old-solution-to-thenationwide-injunction-problem/.

(Released Sept. 26, 2013), available at https://www2.census.

gov/govs/cog/g12_org.pdf.

https://www.census.gov/data/tables/2012/econ/gus/2012-gov

ernments.html, table 7 (Last Revised: March 31, 2020).

federalism does not enforce itself. In practice, when

federalism is at stake, there are often no private

parties with standing to challenge the federal government. Only a handful of big cities have the resources

to file suit. When the federal government unlawfully

harms local governments, therefore, most local governments have to rely on one of the big cities to get the

injunction that forces the federal government to stop.

A good example has been unfolding recently.

Congress created Byrne JAG, a formula grant, in 2006

to provide funds for a wide variety of state and local

law enforcement programs. 34 U.S. Code § 10152. In

2017 the Attorney General added three conditions to

receive Byrne JAG funds, which many local governments believe are unlawful. Then in 2018, the

Attorney General imposed the same three conditions

and added additional conditions that many local

governments also considered unlawful. All local governments may apply to receive Byrne JAG funds

allocated to the states. Many small local governments

only receive a limited amount of Byrne JAG funds and

can’t justify the cost of litigation.6 Unsurprisingly,

mostly larger jurisdictions sued—Philadelphia, Chicago,

New York City, Los Angeles, San Francisco, and

For example, in 2009 the Green Bay, Wisconsin, Police

Department was awarded $477,188 to spend over four years. See

U.S. Department of Justice, Office of the Inspector General Audit

Division, Audit of the Office of Justice Programs Bureau of Justice

Assistance Edward Byrne Memorial Justice Assistance Grant

Awarded to the Green Bay Police Department, Green Bay,

Wisconsin (Oct. 2012). In 2010 Green Bay’s population was about

100,000 people, making it the third largest city in the state. U.S.

Census Bureau, QuickFacts, Green Bay city, Wisconsin, https://

www.census.gov/quickfacts/greenbaycitywisconsin (last visited

Mar. 17, 2020).

Providence and Central Falls, Rhode Island (which are

bigger regionally speaking).

In all cases except one, New York v. United States

Dep’t of Justice, 951 F.3d 84 (2d. Cir. 2020), the federal

government has lost. City of Philadelphia v. Att’y Gen.

of U.S., 916 F.3d 276, 293 (3d Cir. 2019); City of

Chicago v. Sessions, 888 F.3d 272, 293 (7th Cir. 2018);

City of Los Angeles v. Barr, 941 F.3d 931, 934 (9th Cir.

2019); City of Providence and City of Central Falls v.

Barr, No. 19-1802, 2020 WL 1429579, at *1 (1st Cir.

2020, Mar. 24, 2020); City and County of San

Francisco, California v. Sessions, 349 F. Supp. 3d 92,

934 (N.D. Cal. 2018); City of Evanston v. Barr, 412 F.

Supp. 3d 873 (N.D. Ill. 2019). But relief has been

limited and confusing because no court has issued a

nationwide injunction that is currently in effect.7

The district court in the Chicago case issued a nationwide

preliminary injunction, which a panel of the Seventh Circuit

affirmed, but the full court subsequently vacated the nationwide

effect upon the grant of en banc rehearing. Before the preliminary

injunction could be considered en banc, the district court issued a

nationwide permanent injunction but stayed the nationwide

effect pending appeal from the permanent injunction. See Order

Staying Preliminary Injunction in Part, City of Chicago v.

Sessions, 888 F.3d 272 (7th Cir. 2018) (No. 17-2991); Order

Granting Petition for Rehearing En Banc at 1, City of Chicago v.

Sessions, 888 F.3d 272 (7th Cir. 2018) (No. 17-2991). The district

court in City and County of San Francisco, California v. Sessions,

349 F. Supp. 3d at 934, issued a nationwide injunction but stayed

it pending a Ninth Circuit ruling on the issue which is still

forthcoming. In City of Los Angeles v. Barr, 941 F.3d 931, 945 (9th

Cir. 2019), the Ninth Circuit affirmed the district court granting

a nationwide injunction, City of Los Angeles v. Sessions, No. 187347, 2019 WL 1957966, at *6 (C.D. Cal. Feb. 15, 2019), but it is

applicable only to conditions added to Fiscal Year 2018 Byrne

JAG grants. Also, the nationwide injunction in the Los Angeles

To help seek relieve beyond individual cities, the

U.S. Conference of Mayors and Evanston, Illinois,

sued as well. A federal district court in Illinois has

permanently enjoined the Attorney General from

imposing any of the conditions against Evanston and

any members of the U.S. Conference of Mayors for

Fiscal Years 2017, 2018, and in all future grant years.

City of Evanston, 412 F. Supp. 3d at 889.

A nationwide injunction for as long as the Department of Justice intends to impose all of these conditions would have allowed local governments to avoid

the choice of losing their federal funding or complying

with grant conditions all courts but one have ruled are

unlawful. As Gregg Costa explains:

Although the nationwide injunction is problematic because it enables a judge with outlier views to halt enforcement of a policy on

grounds most judges would reject, for challenges to policies that are plainly unlawful

the rule of law would favor speedy and

uniform judicial action. For regulatory

schemes that depend on nationwide application for effective implementation, a patchwork of traditional, parties-only injunctions

may be more disruptive than even an injunction that halts enforcement in full.

Gregg Costa, An Old Solution to the Nationwide Injunction Problem, Harvard Law Review Blog (Jan. 25, 2018).

While the government claims that nationwide injunctions have “take[n] a toll on the federal court system”

(U.S. Br. 46) so does duplicative litigation. It also takes

case is stayed pending a decision from the Ninth Circuit in City

and County of San Francisco, California v. Sessions.

a financial toll on local governments, even those big

enough to be able to sue.

But if federal courts can’t issue nationwide injunctions, small local governments—which make up the

majority of local government in the United States—

are the real losers. As Judge Real explained when he

granted a nationwide injunction in the Los Angeles

case, which has been stayed, it isn’t fair to other local

governments (all smaller than Los Angeles at least in

California) who have to compete with Los Angeles for

limited dollars, that only Los Angeles can avoid the

additional conditions. See City of Los Angeles v.

Sessions, No. 18-7347, 2019 WL 1957966, at *6 (C.D.

Cal. Feb. 15, 2019) (“This Court cannot reasonably

provide complete relief to Los Angeles without enjoining Defendants from imposing the Conditions as to all

competitors. An injunction that bars Defendants from

applying the Conditions only as to Los Angeles does

little to ensure an even playing field.”).

While a number of larger cities have sued, “what is

the evidence that percolation among the circuits yields

better-reasoned decisions?” Spencer E. Amdur &

David Hausman, Response, Nationwide Injunctions

and Nationwide Harm, 131 Harv. L. Rev. F. 49, 52

(2017). As the court pointed out in the Chicago case,

adding grant conditions presented a narrow issue of

law that was not fact-dependent and would not vary

among localities, and therefore “does not present the

situation in which courts will benefit from allowing the

issue to percolate through additional courts.” City of

Chicago, 888 F.3d at 291.

This example happens to involve the current administration, but prior administrations were just as likely

to transgress the bounds of federalism. Local governments also brought federalism-based suits against the

federal government under President Obama. See, e.g.,

Montgomery Cty. v. FCC, 811 F.3d 121 (4th Cir. 2015);

City of Oakland v. Lynch, 798 F.3d 1159 (9th Cir.

2015); City of Berkeley v. U.S. Postal Serv., No. C 1404916 WHA; No. C 14-05179 WHA, 2015 WL 1737523

(N.D. Cal. Apr. 14, 2015); City of Spokane v. Federal

Nat’l Mortgage Ass’n, 775 F.3d 1113 (9th Cir. 2014);

City of Arlington v. FCC, 668 F.3d 229 (5th Cir. 2012).

Not coincidentally, these suits were all filed by

medium-to-large local governments.

This issue transcends politics. Federalism would be

substantially under-enforced if the many thousands of

small towns could not enjoy the benefits of injunctions

obtained in suits filed by the handful of big cities with

the resources to do so.

CONCLUSION

The judgment of the U.S. Court of Appeals for the

Third Circuit should be affirmed.

Respectfully submitted,

LISA E. SORONEN

Counsel of Record

STATE AND LOCAL LEGAL

444 N. Capitol St. NW

Suite 515

Washington, DC 20001

(202) 434-4845

lsoronen@sso.org

Counsel for Amici Curiae

April 8, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.