During Thursday's Supreme Court oral arguments, Justice Clarence Thomas questioned New Jersey Solicitor General Jeremy Feigenbaum about the history of nationwide injunctions.
00:00Putting the merits aside, what do you think is the origin of, or at least the pedigree, of universal injunctions, particularly the Bill of Peace, if you would discuss that?
00:13Absolutely, Your Honor. So there's two categories of these broad injunctions.
00:17So first, although we use the term nationwide injunction, if the nationwide injunction is actually about meeting our harm and the alternatives are not legally or practically workable,
00:26then it isn't even a universal injunction, as I know this Court's separate writings has used the term, because it's about meeting our own Article III injury, which is our basic submission about this case.
00:35But we do agree that there's some space for universal relief.
00:38We trace it back through the history from the Bill of Peace, through Equity Rule 48, which specifically clarified that in the American equitable tradition,
00:46it was not always the case that universal relief would bind the nonparties, even as it might benefit the nonparties.
00:52continuing on to the tax collection injunctions in the 19th century, and then continuing on as recently as this Court's order in AARP.
00:59So I do think they've always been in narrow circumstances.
01:02They've never been the reflexive or norm of how relief should be granted in this country, but they have been available.
01:07I don't think I need that for my case, but I do think they're available in narrow circumstances.
01:11You say they should be available only in narrow circumstances. Why is that?
01:15Yeah, so I could I could offer the three that I think make the most sense, but we're mindful of some of the concerns that the United States raises.
01:22We are states who've benefited from federal policies. We are states who have our own statutes and policies.
01:26So sometimes we are on the other side of the V in cases involving universal relief.
01:30So we are sympathetic to some of the concerns the United States has about percolation, about running the table in particular cases.
01:37We just don't think that that supports a bright line rule that says they're never available.
01:41And we've identified, I think, at least three circumstances where they would make sense to be available.
01:46The first would be in cases where the alternative ways of remedying the harm for the parties are not practically or legally workable.
01:54That's this case, and I'll return to that in a second.
01:56The second would be congressional authorization.
01:59So I took my friend on the other side to try to set aside vacator, but I do think their Article 3 objections would raise serious questions for remedies like vacator,
02:07for remedies like the Hobbs Act, even the Hobbs Act, which could set a nationwide PI after a multi-circuit lottery,
02:14might ultimately have problems under their view of Article 3.
02:17And then the third thing I would say is there may be cases in which the alternative forms of getting non-party relief are not legally or practically available.
02:26So that might be a case like AARP or even a case like this one, where district courts could consider the availability of the class action device,
02:33but if it couldn't move fast enough, because Rule 23 doesn't include TROs and PIs,
02:38if it couldn't move fast enough in those contexts, courts might need to step in anyway.
02:41But I think we fit in the first bucket in this particular case,
02:44because the alternative ways of remedying our particular significant pocketbook harms to the tunes of millions of dollars
02:50can't be remedied, as the district court found below, without granting us this kind of relief.
