Perhaps the least-talked about story of the Supreme Court’s 2019 term is that it punted in Little Sisters of the Poor on the national injunction question. https://twitter.com/ChrisMurphyCT/status/1282755738566352901

During oral argument, Justice Thomas asked Paul Clement about the scope of national injunctions, particularly as they related to the case at hand:

Clement basically argued that the authority of district courts to issue such injunctions should be curtailed.

After listening to the argument, I thought it would be unlikely that Justice Thomas would write the majority opinion, but that if he did, national injunctions would be gone. Of course, my prediction was wrong, and he ended up writing the majority, but ignored the injunction q.

Evidently this means he didn't have 5 votes to curtail national injunctions. What does that mean for the future? If Biden is elected in November, expect Republican state AGs to do the same thing they did under Obama (and what Democratic AGs are doing right now).

The states will run to a venue that might be favorable to them, and will get a national injunction that ties up any Biden regulation in years of litigation.

Under Obama, that was Judge Reed O'Connor in Wichita Falls and Fort Worth for Title IX and ACA regs, and it was Judge Andrew Hanen in Brownsville for DAPA.

Well now, there are numerous district judges in Texas and across the country who would likely issue injunctions against Biden rules.

Judge Peter Welte of the District of North Dakota wrote an op-ed in 2017 praising the Trump administration’s rollback of the “Waters of the United States” rule. Why won’t GOP AGs go to his court to challenge Biden’s environmental regs? https://www.agweek.com/opinion/columns/4228654-welte-wotus-rollback-victory-agriculture

Judge Drew Tipton of the Southern District of Texas is the only judge hearing civil cases filed in the court’s Victoria division. A longtime FedSoc and @TheRepLawyer member, he was previously an employment attorney. Why won’t folks challenging Dept. of Labor regs go to him?

Trump appointees hear 100% of civil cases in the Southern District of Texas’s Galveston division, Eastern District of Texas - Tyler, and high percentages in the Northern District of Texas’s Amarillo and Fort Worth divisions.

Remember, with national injunctions available, the plaintiffs only need to win in one court, while the gov’t needs to win in *all of them*. Does anyone doubt that there isn’t a Trump appointee on the bench who will issue a national injunction against any gun control initiative?

I just provided a few examples. There are plenty more. And I expect the common pattern to be in a Biden presidency that a TX federal judge issued an injunction against a regulation, the 5th Circuit affirms, and SCOTUS denies cert.

*issues