Last week 16 Democratic-led states appealed the district court ruling striking down the Affordable Care Act. Experts estimate that the appeal will take about a year, possibly longer if the case goes to the Supreme Court. Missing from the debate over the latest Obamacare ruling is the normalcy of this appellate process and timeline.
While the latest ACA ruling has prompted strong reactions from both the right and left, there is an underlying, easy-to-miss point about judicial remedial power. Regardless of one’s view on the merits, the district court decision is a model of restraint in an important, structural way. The judge did not enjoin the ACA from coast to coast.
As this case demonstrates, there are two important inflection points in a lawsuit. First, a decision on the merits, which decides the legal rights of the parties. Second, the remedy, which is intended to restore the aggrieved part to the position they were in before the injury occurred.
Some may argue that the Texas judge should have issued a nationwide injunction. After all, an unconstitutional law is void, and if Congress has no power to compel individuals to purchase health insurance (at least when that requirement is not grounded in the Taxing Power), then people arguably ought to be free from that requirement coast to coast.
Such logic led to coast-to-coast injunctions early on in the Trump administration. In just the first eight months of his term, several district court judges issued nationwide injunctions blocking different versions of the president’s travel ban, and a district court judge in Chicago issued a national injunction against a policy blocking grant funding to sanctuary cities.
But national injunctions are not a one-party phenomenon. Near the end of President Barack Obama’s second term, nationwide injunctions put many of the president’s policies on ice. In Texas v. United States, the district court enjoined the administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents program nationwide. Other district court judges issued nationwide injunctions against the Department of Labor’s overtime regulation rule, the Department of Education’s “Dear Colleague” letter, and a regulation requiring federal contractors to report labor violations.
Despite this spate of national injunctions, they are of recent and dubious vintage. At the outset, nationwide injunctions are on slippery constitutional footing. Article III provides that the “judicial power shall extend to all cases, in law and equity” arising under federal law, and among other things, to “controversies” in which the United States is a party. Thus, the judicial power extends only to “cases and controversies.” It does not confer on federal courts a roving power to remedy any and all wrongs, but rather, as UCLA law professor Sam Bray explains, Article III “gives the judiciary authority to resolve the disputes of the litigants.”
History helps us understand how national injunctions fit (or do not fit) within our constitutional framework. The law of remedies has a long and storied history. Under English law, two different court systems existed. Common-law courts resolved the majority of disputes. As the common law developed, however, it became wedded to certain causes of action and certain remedies (typically monetary damages). To avoid the unfairness that could sometimes result, parties began to appeal to the Lord Chancellor, known as the Keeper of the King’s Conscience. The Court of Chancery developed into a flexible court that could grant a much broader set of remedies than common-law courts.
These equitable remedies were created for situations in which monetary compensation did not make the plaintiff whole. For instance, because each parcel of land was considered unique, equity courts created the doctrine of specific performance, which required the breaching party to convey the specific piece of property to the plaintiff. Equitable remedies also include injunctions, a court order requiring a party to stop a certain action because of irreparable harm.
Early American law followed this bifurcated tradition. The Constitution granted to the federal courts jurisdiction over cases in both law and equity, but Congress separated the two types of cases to prevent the federal courts from enlarging their powers by tagging legal cases with equitable remedies. In 1938, the Supreme Court reversed course. It issued rules merging law and equity and creating a single cause of action, the “civil action.”
All of this history is relevant, because, with the merger of law and equity, district courts have the ability to grant equitable remedies in legal cases. But there was only one chancellor in the English system, whereas there are 673 authorized federal district judgeships (certainly with more than one view of the constitutionality of the ACA). This difference makes the issuance of a national injunction by one of those federal district judges problematic for several reasons.
First, the availability of national injunctions is an open invitation to plaintiffs to forum-shop. It is no accident courts located in California issued nationwide injunctions against the Bush administration while courts located in Texas issued national injunctions against the Obama administration.
A nationwide injunction is also problematic because it forces the Supreme Court’s hand. The Supreme Court will almost certainly agree to hear a case when a federal statute has been declared unconstitutional and quickly. As Bray writes, “A world of national injunctions is one in which the Supreme Court will tend to decide important questions more quickly, with fewer facts, and without the benefit of contrary opinions by lower courts.”
The ACA is one of the most contentious statutes of our time, and that the district court refrained from issuing a nationwide injunction in this case is a sign that lower federal courts may have begun to think more closely about the scope of their remedial authority. This is a win for everyone.
Erin Hawley is a legal fellow at the Independent Women’s Forum, an associate professor of law at the University of Missouri, and a former clerk to Chief Justice John Roberts.