In the run-up to oral arguments this week at the Supreme Court, this series of posts works through the main points in the debate over universal injunctions.
I think King v. Burwell illustrates the dynamic I referred to at the end of my prior comment. There, the plaintiffs objected to the availability of certain ACA insurance subsidies. They claimed to be “injured” because the availability of subsidies meant that they could obtain affordable insurance coverage, which in turn meant that the ACA’s individual-coverage mandate required them to purchase insurance or pay a tax penalty.
The plaintiffs’ asserted injuries could have been remedied by an injunction prohibiting the government from offering them subsidies or prohibiting enforcement of the coverage mandate as to them. But of course that wasn’t what the plaintiffs wanted: They wanted (universal) vacatur of the IRS regulations that provided the subsidies, so that no one else could get the subsidies and — more broadly — the ACA’s operations would have been thrown into disarray.
That seems like the kind of relief you could only get via universal injunction or vacatur. The plaintiffs wouldn’t be able to get class certification, because they wouldn’t be adequate class representatives. Presumably the vast majority of people who were “subject” to the subsidies actually wanted them, because they made insurance coverage cheaper.
Sam, do you sense of how we should think about the category of cases in which the availability of universal injunctions is likely to make a difference? I.e., the kind of cases in which 23(b)(2) class certification likely wouldn’t be available for some reason, but district courts would likely enter a universal injunction?
As I understand it, the argument in the birthright citizenship cases is that we shouldn’t expect class representatives whose citizenship would be affected by the order to come forward, since doing so would expose them to removal. Does that dynamic show up in a lot of cases?
I’ve wondered whether it’s all bound up with the increase in ideological litigation, where the plaintiffs’ real beef isn’t exclusively or even primarily attributable to enforcement of the the challenged program against them (i.e., the kind of thing that could be remedied with conventional party-specific relief), but rather comes from other people’s receipt of benefits under the program. I can imagine that class certification might be harder in such cases, since many members of the putative class may prefer to leave the program in place.
I think King v. Burwell illustrates the dynamic I referred to at the end of my prior comment. There, the plaintiffs objected to the availability of certain ACA insurance subsidies. They claimed to be “injured” because the availability of subsidies meant that they could obtain affordable insurance coverage, which in turn meant that the ACA’s individual-coverage mandate required them to purchase insurance or pay a tax penalty.
The plaintiffs’ asserted injuries could have been remedied by an injunction prohibiting the government from offering them subsidies or prohibiting enforcement of the coverage mandate as to them. But of course that wasn’t what the plaintiffs wanted: They wanted (universal) vacatur of the IRS regulations that provided the subsidies, so that no one else could get the subsidies and — more broadly — the ACA’s operations would have been thrown into disarray.
That seems like the kind of relief you could only get via universal injunction or vacatur. The plaintiffs wouldn’t be able to get class certification, because they wouldn’t be adequate class representatives. Presumably the vast majority of people who were “subject” to the subsidies actually wanted them, because they made insurance coverage cheaper.
Sam, do you sense of how we should think about the category of cases in which the availability of universal injunctions is likely to make a difference? I.e., the kind of cases in which 23(b)(2) class certification likely wouldn’t be available for some reason, but district courts would likely enter a universal injunction?
As I understand it, the argument in the birthright citizenship cases is that we shouldn’t expect class representatives whose citizenship would be affected by the order to come forward, since doing so would expose them to removal. Does that dynamic show up in a lot of cases?
I’ve wondered whether it’s all bound up with the increase in ideological litigation, where the plaintiffs’ real beef isn’t exclusively or even primarily attributable to enforcement of the the challenged program against them (i.e., the kind of thing that could be remedied with conventional party-specific relief), but rather comes from other people’s receipt of benefits under the program. I can imagine that class certification might be harder in such cases, since many members of the putative class may prefer to leave the program in place.