Making a Federal Case

When can the federal government sue for relief on behalf of citizens?

WHEN THE FEDERAL GOVERNMENT appealed to the U.S. Supreme Court to stop a Texas abortion law in the fall of 2021, the case, United States v. Texas, harkened back to a 19th-century railway strike case that is relevant today, says Professor Aditya Bamzai.

Bamzai, a former Justice Department lawyer who teaches and writes about civil procedure, administrative law and conflict of laws, appeared on the UVA Law podcast “Common Law” to talk about why In re Debs is still relevant. He explores the topic in a paper with Samuel L. Bray of Notre Dame Law School, “Debs and the Federal Equity Jurisdiction,” published in the Notre Dame Law Review in December.

The Debs case concerned the 1894 Pullman strike led by Eugene V. Debs, president of the American Railway Union and later a leader of the Socialist Party. A federal injunction ordered the strikers to stop interfering with train service, but Debs refused to end the protest. After being held in contempt of court, Debs appealed to the Supreme Court. He lost unanimously, with justices ruling that the U.S. government had a sovereign interest in using its own courts’ equitable remedies to ensure the mail ran smoothly, preserving the most important way goods traveled state to state at the time.

Many reviled the decision as an affront to the democratic process, calling it “government by injunction.” After Debs, injunctions continued to be “a really important, effective tool that the government and industry had to stop workers from striking,” ultimately leading to statutory reforms that became incorporated into modern labor law, Bamzai says.

Making the case for a sovereign interest to sue also came up in the Texas case, in which the justices considered whether the federal government could stop the implementation of state law S.B. 8, which makes abortions illegal as early as six weeks into pregnancy.

The Texas law is enforced through private civil lawsuits universal relief in many circumstances,” Harrison said. “In doing so, they rely on statutory language stating that courts are to ‘hold unlawful and set aside’ agency actions … that are contrary to statute or unconstitutional.”

Harrison argues the “set aside” language of section 706(2) should not be interpreted as providing a remedy, such as “vacating” a rule. Rather, Harrison says that to “set aside” a rule under 706(2) should be interpreted as meaning “to disregard” the rule and not treat it as binding.

Furthermore, the idea of vacating a rule because it was unlawful “was unknown” to the drafters of the APA in 1946, Harrison writes. In the paper, he details why vacatur of rules was not recognized as a remedy.

“Section 706(2) does not rather than by state or local officials, making it difficult for opponents to sue, which prompted the federal government to step in on behalf of the state’s residents. A federal injunction initially paused the Texas law. When the Fifth Circuit Court of Appeals stayed that injunction, the Supreme Court weighed in.

As Bamzai explains on the show, a narrow reading of Debs might suggest that, in the absence of statutory authorization, the government can obtain an injunction only when the government has a proprietary interest to protect. But in the Texas case, the Biden administration focused on the part of the Debs decision that implied a more sweeping holding, Bamzai and his co-author write—“that the federal government could invoke the fallback equitable option of ‘a right to apply to its own courts for any proper assistance whenever there was ‘injury to the general welfare.’”

Although the Supreme Court initially agreed to hear the Texas appeal, in December 2021 it dismissed the writ of certiorari as improvidently granted, and returned the case to the Fifth Circuit, which soon ended the hopes of S.B. 8 opponents. Just two months later, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization turned the abortion debate in a completely new direction.

But the dismissal in the Texas case “only highlights that the issue will not go away, and the courts will continue to struggle with precisely when, and how, and why” the federal government can bring a suit to enjoin state laws with which it disagrees, Bamzai writes.

Bamzai is the Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law.

—Mary Wood

authorize universal remedies,” Harrison said. “Questions of remedy are addressed by bodies of law other than the APA, such as statutory provisions governing judicial review of specific agencies and general principles of federal equity.”

In fact, Section 703 of the APA points to those bodies of law when it identifies proper proceedings for judicial review.

For these reasons, Harrison said, “Courts that rely on the words ‘set aside’ in section 706(2) … are looking in the wrong place.”

Harrison is the James Madison Distinguished Professor of Law and the Thomas F. Bergin Teaching Professor of Law.

—Fran Slayton

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