Yesterday the Fifth Circuit held oral argument in an appeal of Judge Hanen's DACA decision. You can find a write-up of the oral argument by Mohar Chatterjee at Politico. One thing jumped out at me, and I will quote the relevant line from the Politico story (the transcript is not on PACER yet). Here's a paragraph of wind-up from the story, and then the quote from Texas Solicitor General Judd Stone II:
Wednesday's arguments before the 5th Circuit Court of Appeals took place just over a decade after President Barack Obama created the DACA program through executive action. Much of the roughly 45-minute argument session was devoted to whether Texas and other states suing to block the program could show enough impact on them to proceed with the court case.
"The relevant question here for summary judgment is whether… [Texas] has shown at least a dollar of expenditures that would be remedied by the removal of DACA, and whether some individual who has received that sort of spending under DACA will leave the United States," Texas Solicitor General Judd Stone II told the judges.
That's the logic of standing in a legal action for damages: if you can establish an injury, then you can proceed to the merits and the remedy. There's no principle at law by which a modest showing about standing constrains what you can get once you're through the door.
But the logic of equity is different. Here is the way Paul Miller and I put it on pages 1797-1798 of "Getting into Equity," published earlier this year by the Notre Dame Law Review as part of its federal courts symposium issue:
Fifth, this analysis helps illuminate why the Supreme Court's equity cases so often tend to merge together considerations of justiciability, merits, and remedy. Other scholars have skillfully analyzed the interplay of these considerations, but in this less equity-conscious age some may miss that this interplay is different in law and in equity. For legal claims, justiciability is a threshold, and once through the door the plaintiff is able to obtain remedies without much consideration of whether the plaintiff just barely made it over the threshold. But in equity it all connects—the broader and deeper the remedy the plaintiff wants, the stronger the plaintiff's story needs to be. This interplay is the result of equity's not having causes of action: the cause of action delimits the scope and relief in a legal suit, but without that limiting principle in equity, others are needed. Put differently, this is an instance of the "paradox at the heart of equitable remedies": these remedies give courts the greatest capacity for managing the parties, and yet courts often decline to issue these remedies precisely "on the ground that they would require too much management of the parties." The fact that equity lacks the rigid boundaries and limits of law, especially the cause of action, makes this paradox more intelligible.
And Ernie Young had a brilliant contribution to that symposium that explored the interaction of standing and equity. You can find it here.
In other words, a dollar of injury is not sufficient to establish the kind of standing needed, in equity, to ground a massive injunction. NB: This post isn't addressing the questions of whether national injunctions are permissible and what remedies are available under the APA; I've written on those questions at length. This post is just on the narrower question of whether "a dollar of expenditures" is a sufficient basis for a massive injunction (assuming that the quote in the story does capture the point that was made in oral argument). For that narrower question, the answer in traditional equity is no. For equitable remedies, the intensity of the injury to the plaintiff should be of great importance for the intensity of the remedy.
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