Who Would Win?: APA Vacatur Versus National Injunction
If you have elementary school age children, you probably know about the “Who Would Win?” books. The conceit is straightforward: posit two animals, and ask which of them would prevail in a struggle. Lion versus tiger, whale versus giant squid, tyrannosaurus rex versus velociraptor. For those who have followed the debate over national injunctions, we now have a new entry in this genre: APA vacatur versus national injunction.
In May, a district court issued a national injunction prohibiting the Biden administration from lifting Title 42, a COVID-related public health order that allows the expulsion of migrants. Yesterday, another district court purported to vacate Title 42 and issued a permanent injunction prohibiting the government from applying Title 42 to members of the plaintiff class.
The injunctions themselves are not quite conflicting: “don’t lift Title 42” and “don’t apply Title 42 to this class” are not in conflict, because the government can obey both. The former
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