Tuesday, January 15, 2013
Jack Preis (University of Richmond) has posted In Defense of Implied Injunctive Relief in Constitutional Cases.When plaintiffs seek relief in constitutional cases, an important question of judicial power often arises: if Congress has neither authorized nor prohibited the courts from issuing a particular form of relief, may the courts issue the relief nonetheless? At present, the answer to this question mostly turns on the form of relief sought: if the plaintiff seeks damages, the court will refuse relief unless Congress has specifically authorized it; in contrast, if the plaintiff seeks an injunction, the court will refuse relief only if Congress has specifically barred it.
These contradictory approaches have troubled scholars for some time. One way to resolve the asymmetry would be to extend the availability of monetary relief such that both remedies would be available in cases of congressional silence. Another option, however, would be to curtail injunctive relief such that neither remedy would be available in cases of congressional silence. This latter option might be particularly attractive given that the Supreme Court generally views implied causes of action as an usurpation of congressional power.
In this Article, I defend the federal courts’ power to issue injunctive relief in constitutional cases without explicit congressional authorization. The defense rests on two proofs — both largely historical. First, I show that the availability of equitable remedies has never been tightly tethered to the availability of damages, and that we should not therefore strive for symmetry between the two causes of action. Second, I show that both Congress and the federal courts have, since the Founding, viewed the existence of subject matter jurisdiction alone as implied authorization to issue injunctive relief.