In an earlier post, I responded to Will Baude’s argument that the Supreme Court could limit the relief to the named plaintiff in King v. Burwell. I noted that under the D.C. Circuit’s precedents, when a court sets aside a rule under the APA, the decision applies nationwide. However, as Will noted in an email, the Supreme Court has not adopted this rationale. The closest the Court came to addressing this issue (recently at least) was in Summers v. Earthland Institute. The fourth question presented, which was not addressed, was whether the district court had the power to issue a “nationwide injunction.” Justice Scalia wrote for the 5-4 decision:

We likewise do not reach the question whether, if respondents prevailed, a nationwide injunction would be appropriate.

However, SG Clement argued in the government brief that APA does not even permit nationwide injunctions, totally apart from the question of whether it was appropriate.

If the court finds that a regulation on which the agency relied in rendering that decision is unlawful (and that its application was not harmless er- ror, see National Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2530 (2007)), the proper relief is for the court to hold the site-specific decision unlawful (i.e., to “hold unlawful” the reviewable “agency action”) because it rests on the regulation the court found to be invalid, not to go beyond the confines of the case and invalidate the regulation in all of its potential applications to other site-specific decisions. If the court of appeals in this case had correctly identified the Burnt Ridge Project as the only “final agency action” properly subject to challenge, the appropriate relief (even if the case had remained live) could have extended no further than a declaratory judgment that the decision approving that project was unlawful or an injunction prohibiting petitioners from carrying out that project until the For- est Service had satisfied the requirements the court of appeals found to be imposed by the ARA.  … Absent clear statutory text compelling that asymmetrical result—and the text of 5 U.S.C. 706 contains nothing remotely so requiring—the court of appeals plainly erred in approv- ing a nationwide injunction.

The SG also makes something of an equitable argument, explaining that nationwide injunctions impede the ordinary route of review through the Circuits:

Construing the APA to require a nationwide in- junction in cases like this one would also impede the usual process by which disputed legal issues are consid- ered by different circuits before (if necessary) being resolved by this Court . . . The Court has thus recognized that, as a general matter, recurring legal issues involving the federal government should be subject to relitigation in different circuits.

The SG notes that seeking the nationwide injunction forces the government to pursue an appeal in the Supreme Court, rather than allowing the issue to simmer:

The Ninth Circuit’s affir- mance of the nationwide injunction forced the govern- ment either to forgo implementation of 36 C.F.R. 215.4(a) and 215.12(f ) altogether, or to seek this Court’s review of the first court of appeals decision that had ad- dressed the validity of those regulations.17

In a footnote, the SG stresses how this practice allows one Circuit Court to stop other courts nationwide from addressing the issue:

Indeed, if this Court had not granted certiorari to review the Ninth Circuit’s decision in this case, that ruling would have prevented any other court of appeals from considering the question.

Clement makes clear that the government should not be forced into this posture:

Except where Congress has specifically authorized a single lower court to vacate a regulation and resolve such ques- tions on a nationwide basis, this Court’s precedents make clear that the government should not be put to that choice (with the attendant distortion of this Court’s normal ability to defer review, absent relatively unusual factors, until more than one court of appeals has ad- dressed the question). 

I stress the last sentence, because in many respects, the challenges to the individual mandate by 26 states, the challenge to DAPA by 26 states, and the challenge in King v. Burwell, are quite unique. They represent significant challenges to programs with nationwide effects. Allowing the program to go into effect for non-party states, or even the millions not named in the case, creates significant irreparable damages, and renders future equitable relief very difficult. You can’t put the toothpaste back in the tube, as Judge Hanen explained, if DAPA goes into effect in 24 states.

We are witnessing this fact now with King. Recall that Halbig was initially a motion for a preliminary injunction, seeking to enjoin the ACA subsidies before the law went into effect. The district court sat on the case for far too long, rendering that injunction  impossible. As a result, any decision by the Court would result in people who previously received subsidies, on longer being eligible. That is a significant equitable factor that (no doubt) is weighing on the Justice’s.

Will is correct the Court has never adopted the D.C. Circuit’s reasoning on nationwide injunctions. Although, in light of the SG’s own representation, I suspect the Court would find here “relatively unusual factors” concerning the ACA that would counsel in favor of giving relief nationwide.