In Defense of Implied Injunctive Relief in Constitutional Cases

AbstractIf Congress has neither authorized nor prohibited a suit to enforce the Constitution, may the federal courts create one nonetheless? At present, the answer mostly turns on the form of relief sought: if the plaintiff seeks damages, the Supreme Court will normally 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 naturally invite arguments for reform. Two common arguments-one based on the historical relationship between law and equity and the other based on separation of powers principles-could quite foreseeably combine to end implied injunctive relief as we know it.In this Article, I defend the federal courts' power to issue injunctions in constitutional cases without explicit congressional authorization-a practice known as "implying" a suit for relief. The defense rests on two proofs, both largely historical. First, I show that the historical relationship between law and equity has largely been misunderstood in the realm of injunctive relief. Second, I show that implied injunctive relief does not contravene separation of powers principles because Congress and the federal courts have, since the Founding, viewed implied injunctive relief as permissible and even appropriate. These proofs do not account for policy concerns that might impact the inquiry, but they do suggest that such concerns must be extraordinarily compelling to overcome the federal courts' centuries-old power to imply injunctive relief in constitutional cases.Introduction 2I. Law and Equity in England 7A. Law 7B. Equity 101. Equity Follows the Common Law (Sort Of) 122. Equity Defers to Monetary Relief (Sort Of) 15H. Federal Equity at the Founding and Beyond 21A. Equity Unleashed 211. One Court, Two Sides 222. A "Common Law of Chancery" 233. A Modest Limitation, Made More Modest 28B. Opportunity Knocks 321. Powerful Forces 322. Perfect Opportunities 34III. Federal Equity in Modern Times 39A. Anti-Injunction Statutes 40B. The Federal Rules 44C. Revision of the Rules of Decision Act 46D. § 1983 and the Administrative Procedure Act 481. § 1983 482. Administrative Procedure Act 51Conclusion 53IntroductionIt is one thing to have a constitution, but it is quite another to enforce it. What is needed is some mechanism to make rights written on paper-what James Madison called mere "parchment barriers"-come alive in the lives of individual persons.1 In the United States, one of the most prominent enforcement tools is the civil rights action, an action brought by the victim of a constitutional violation against the perpetrator. In such actions, the Constitution is made real through either damages or injunctive relief.Who is in charge of civil rights actions? Congress, mostly. Congress has the power to create or abolish civil rights actions, and barring narrow exceptions, the federal courts are obliged to follow such choices.2 In regulating these actions, Congress does not create or abolish the constitutional rights themselves, of course; it merely defines the avenues through which the rights shall be enforceable. If a plaintiff wants to know the remedies available for a constitutional violation, therefore, the best place to look is in the U.S. Code.The U.S. Code is the best place to look, but it is not the only place. If the statute books do not create or prohibit a suit for relief, plaintiffs frequently turn to the federal courts for assistance. …