Professor Samuel Bray was cited again by the Supreme Court this term, this time by Justice Neil Gorsuch in an opinion concerning an application for stay in Department of Homeland Security, et. al. v New York, et. al. The case involves a challenge to the administration’s “public charge” rule limiting eligibility for green cards. A lower court had issued an injunction prohibiting the enforcement of the rule; the Court (by a 5-4 majority) stayed the injunction and allowed the rule to be enforced.
Justice Gorsuch’s opinion considered the now widespread use of “national injunctions” or “nationwide injunctions.” These are injunctions that prohibit the enforcement of a federal rule or statute against anyone in the country, not just against the parties to the case. “The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them,” Justice Gorsuch wrote. “Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw — they direct how the defendant must act toward persons who are not parties to the case.”
Justice Gorsuch cited Bray’s research on national injunctions multiple times throughout the opinion.
Justice Gorsuch wrote that “when a court goes further than” resolving the parties’ case, by “ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies.” For this point Justice Gorsuch cited Multiple Chancellors: Reforming the National Injunction, Bray’s article published in the Harvard Law Review in 2017. “Injunctions like these,” Justice Gorsuch said, “thus raise serious questions about the scope of courts’ equitable powers under Article III.”
Bray said that the opinion shows the justices’ continuing interest in the proper scope of injunctions. He added that the Court is likely to address the question later this term in Trump v. Pennsylvania (consolidated with Little Sisters of the Poor v. Pennsylvania). In that case, one of the questions presented is about the nationwide injunction given by the lower courts.
Last year, Bray created a primer video on national injunctions for The Federalist Society. Watch the video below.
Bray was cited at the Supreme Court earlier this term, in a dissent by Justice Ruth Bader Ginsburg in Rotkiske v. Klemm.
Originally published by law.nd.edu on January 29, 2020.at