CASA, Grupo Mexicano, and Ex Parte Young

One of the challenges with Trump v. CASA is accounting for nearly a century worth of Supreme Court decisions. There are a host of landmark decisions where the Court arguably approved of universal injunctions, such as Pierce v. Society of Sisters and West Virginia v. Barnette. Mili Sohoni says these were universal injunctions. Mike Morley disputes these accounts. Justice Barrett discounts these “drive-by” remedial rulings as modern cases that postdate the Judiciary Act of 1789 by more than a century. Justice Sotomayor also cites Brown v. Board of Education II, which proposed some very unusual equitable remedies with “all deliberate speed.” Barrett does not respond to Brown. The harder case, in my view, would have been the equitable remedy for Bolling v. Sharpe against the federal government.

But one case where the majority and dissent do engage each other is Ex Parte Young, the classic FedCourts case.

Justice Sotomayor argues that Young is evidence that equitable jurisdiction is not trapped in amber, but instead evolves over time:

Indeed, equitable relief in the United States has evolved in one respect to protect rights and redress wrongs that even the majority does not question: Plaintiffs today may obtain plaintiff-protective injunctions against Government officials that block the enforcement of unconstitutional laws, relief exemplified by Ex parte Young, 209 U. S. 123 (1908). That remedy, which traces back to the equity practice of mid-19th century courts, finds no analogue in the relief exercised in the English Court of Chancery, which could not enjoin the Crown or English officers. See supra, at 24, n. 4; see also Sohoni, 133 Harv. L. Rev., at 928, 1002–1006; see also R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System958–959 (5th ed. 2003) (noting that, in Young, “the threatened conduct of the defendant would not have been an actionable wrong at common law” and that the “principle [in Young] has been easily absorbed in suits challenging federal official action”). Under the majority’s rigid historical test, however, even plaintiff-protective injunctions against patently unlawful Government action should be impermissible.

Justice Barrett responds to Justice Sotomayor in a footnote:

Notwithstanding Grupo Mexicano, the principal dissent invokes Ex parte Young, 209 U. S. 123 (1908), as support for the proposition that equity can encompass remedies that have “no analogue in the relief exercised in the English Court of Chancery,” because Ex parte Young permits plaintiffs to “obtain plaintiff-protective injunctions against Government officials,” and the English Court of Chancery “could not enjoin theCrown or English officers,” post, at 30 (opinion of SOTOMAYOR, J.). But contrary to the principal dissent’s suggestion, Ex parte Young does not say—either explicitly or implicitly—that courts may devise novel remedies that have no background in traditional equitable practice. Historically, a court of equity could issue an antisuit injunction to prevent an officer from engaging in tortious conduct. Ex parte Young justifies its holding by reference to a long line of cases authorizing suits against state officials in certain circumstances. See 209 U. S., at 150–152 (citing, e.g., Osborn v. Bank of United States, 9 Wheat. 738 (1824); Governor of Georgia v. Madrazo, 1 Pet. 110 (1828); and Davis v. Gray, 16 Wall. 203 (1873)). Support for the principal dissent’s approach is found not in Ex parte Young, but in Justice Ginsburg’s partial dissent in Grupo Mexicano, which eschews the governing historical approach in favor of “[a]dynamic equity jurisprudence.” 527 U. S., at 337 (opinion concurring in part and dissenting in part).

I think Justice Barrett gets the better of this argument. The basis of equitable jurisdiction in Ex Parte Young was an “antisuit injunction to prevent an officer from engaging in tortious conduct.”

Seth Barrett Tillman and I explained this aspect of Young in our article on the Foreign Emoluments Clause litigation:

The posture of Young was, admittedly, complex. The case began when shareholders of the railroad company sued the company and its directors.285 The shareholders wanted the directors to challenge the constitutionality of the state regulations as violations of the Due Process Clause of the Fourteenth Amendment.286 At the time, Minnesota Attorney General Edward Young enforced the railroad regulations.287 The shareholders could invoke the equitable jurisdiction of the federal court because they relied on traditional equitable principles and former Equity Rule 94.288 This provision was the precursor to the modern-day Fed. R. Civ. P. 23.1, which governs derivative actions.289 In Young, the shareholders sought to enforce their fiduciary relationship with the directors. This “trust”-like relationship lies at the core of historical equitable jurisdiction. Indeed, in Federalist No. 80, Hamilton listed “trust” as a traditional cause of action, along with “fraud,” “accident,” and “hardship.”290 Therefore, the shareholders could also rely on a traditional equitable cause of action to challenge the regulations. In the English High Court of Chancery, and in early American courts, causes of action existed that would allow private citizens to challenge government regulations of their own property—even where, as here, title was held beneficially. In Young, the government was regulating the railroad company. Such disputes about contested rights and duties involving property (e.g., interpleader) also lie at the core of historical equitable jurisdiction. Specifically, the Young plaintiffs sought to prevent future state action regulating their own property. To accomplish this goal, they invoked the court’s equitable jurisdiction to sue their company, its directors, and state officers before those state officers could regulate the plaintiffs’ own property through an imminent coercive lawsuit.291 Professors Bamzai and Bray observe that in Young, “equity [was] invoked to protect a proprietary interest.” They write that this “equity-property connection helps focus the dispute and prevents equity from pushing aside other areas of law that have their own separate logic, limits, and principles.”292

An interference with private property was, and is, tortious conduct. The basis for equitable jurisdiction in Young was premised, as Barrett wrote, on the government’s alleged tortious conduct against private property. This sort of suit would have been permitted in 1789 by the English Court of Chancery.

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