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Two Views of History and Nationwide Injunctions
Michael Ramsey

In the Seventh Circuit sanctuary city case, now called City of Chicago v. Whitaker, an impressive group of prominent legal historians has filed this amicus brief in support of the nationwide injunction.  Here is the brief's summary of argument:

Nationwide injunctions against the federal government were not issued in 1789. But that is the result of historical accident and not because of any inherent limitations on the remedies available in equity. Equity courts in 1789 could “adapt their decrees to all the varieties of circumstances …, and adjust them to all the peculiar rights of all the parties in interest.” 1 Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America § 28 (2d ed. 1839) [hereinafter Story, C. Eq.]. Courts of equity existed to decide upon and settle the rights of all persons interested in the subject matter of the suit. Courts of equity, it was said, do complete justice—not justice by halves. Case:

To that end, early American equity courts could fashion injunctions that protected the rights of non-parties and that even ran against non-parties. Courts of equity could also issue injunctions against government officials, and by doing so, functionally restrain the actions of governments at the municipal, state, and federal levels. No case from the early republic casts that proposition in starker light than Cherokee Nation v. Georgia, 30 U.S. 1 (1831). The Court dismissed the case for lack of jurisdiction. But Justice Joseph Story, dissenting, would have entered an injunction enjoining the State of Georgia and all of its officers and agents from enforcing any Georgia laws in Cherokee territory against anyone.

Not only did equity courts have the equitable power to grant injunctions that look like modern nationwide injunctions (save they did not run against the federal government itself), but they in fact issued injunctions of astonishing scope. In the late 1800s and early 1900s, federal courts sitting in equity issued labor injunctions restraining hundreds of thousands of workers to protect the free flow of commerce nationwide. While we doubt the lawfulness of similar injunctions today, and Congress limited the federal courts’ power to issue such injunctions in the 1930s, they show the power of traditional equity.

Thus, equity courts had the equitable powers to issue nationwide injunctions in the early republic. There are likely a variety of reasons that no modern-style nationwide injunctions issued. At the threshold, very few federal laws were held unconstitutional in the 18th and 19th centuries. Moreover, the federal government was structured in a fundamentally different fashion than it is today. And federal courts lacked their modern broad federal question jurisdiction.

But the likeliest explanations for the absence of nationwide injunctions before the 20th century relate to sovereign immunity, jurisdiction, and venue—not the nature of the federal courts’ equity powers. First, the United States did not waive its sovereign immunity from suit in a general way until 1976. A nationwide injunction against the United States could not have issued before 1976. Second, restrictions on venue and personal jurisdiction meant litigants needed to sue cabinet-level officers in Washington, D.C. if they wanted something approximating a modern nationwide injunction. Geography and expense, not the powers of courts of equity, were the practical obstacles to nationwide injunctions for much of American history. (Though as we point out, as early as 1935, railroads were financially able and willing to join together to sue in Washington, D.C. to enjoin laws on a nationwide basis.)

In any event, it makes no sense to ask whether a remedy is a traditional equitable remedy by referring to the parties enjoined and the persons protected. Whether an equitable remedy is proper should be determined by equity’s historical principles (e.g., whether the remedy grants complete relief, whether the remedy runs in personam against a party). The history of equity is a complex and contradictory one, characterized by flexibility and discretion; rarely by unyielding rules. Especially where, as here, the history is inexact and the practice of granting nationwide injunctions is already entrenched, the proper body to pare back nationwide injunctions, should it be necessary, is Congress, not the courts.

Thanks to Andew Tutt (Arnold & Porter) for the pointer.

At Volokh Conspiracy, Samuel Bray (Notre Dame) has two long posts specifically in response to the historians' brief:

National Injunctions: Historians Enter the Lists

More Notes on the Historians' Brief

From the first post:

In this post I will highlight three key weaknesses in the historians' argument. In a follow-up post I'll comment on other specific claims and evidence in the brief.

First, the case that the historians identify as their best case does not support a national injunction. . . .

Second, the historians' brief does not address the strong evidence that equitable principles precluded a national injunction. . . .

Third, it is rather astonishing that the historians' brief defends the national injunction by likening it to the fin de siècle anti-labor injunctions (6, 16-18) and to structural injunctions (24). The former are widely discredited and were expressly rejected by Congress; the latter have been a subject of controversy for fifty years. Whatever view one takes as to the anti-labor and structural injunctions, their weak point is their lack of basis in traditional equity. This is not their strength. I do not think it is much reassurance to say that national injunctions are traditional in equity just like the anti-labor and structural injunctions.

Introducing the second post: