National injunction litigation in public law cases is prevalent, controversial, and important. Universal remedies such as national injunctions are increasingly prominent in high-profile cases. The availability and shape of such remedies always matter to the parties, but the effect on nonparties is another key consideration. Much scholarly attention exists on the efficacy of such relief, but gaps in the literature remain. Professor Haymond fills a gap on the unexpected role of intervenors on these bold remedies. Her recent work, Intervention and Universal Remedies, offers provocative, detailed data that demonstrates significant consequences of intervenors on litigation seeking national injunctions. Ultimately, this rigorous examination reveals how the treatment of intervenors has immense impact and warrants deeper attention.
Professor Haymond examines over 500 national injunction cases to reveal that an unexpected, outsider participant has an outsized effect on outcomes. Her study uncovers that intervention in such suits is “commonly sought, often contested, unpredictably obtained, and enormously consequential.” (P. 6.) Professor Haymond poses an important question: What if the federal rules governing such high-stakes litigation no longer protect the values they were designed to serve? The Federal Rule of Civil Procedure covering intervenors is Rule 24, and its purpose is threefold: “to secure a meaningful opportunity for affected nonparties to participate in cases affecting their interests, to enhance judicial efficiency, and to safeguard some measure of party control.” (P. 6.) Yet Professor Haymond concludes that intervention practice in national injunction cases effectively does not advance those values.
This article makes many excellent contributions. For example, it shows the blurred analyses between intervention as-of-right versus permissively, and it examines the contours of an intervenor’s right to participate meaningfully. It starts with effective presentation of intervenor interests and perceiving that the judge heard the interests. More specifically, it includes that the intervenor, unlike amici, can advance evidence, make arguments, participate in settlement talks, and appeal adverse rulings. The article laments that judges have broad discretion in determining whether an intervenor is permissive or of right as well as the nature and scope of participation.
Professor Haymond emphasizes three attributes that are relevant to Rule 24’s function that heighten the import of intervenor participation: “(1) the universal nature of the remedy affects numerous interests not captured by the litigating parties; (2) these cases are often high-profile and involve politically salient national rules and policies; and (3) the remedy often forecloses other types of participation—either in other lawsuits or in the political process.” (P. 29.) Of the 508 cases that Professor Haymond analyzes, thirty-four percent (173) of those cases involved at least one motion by an intervenor. In two-thirds of those cases, the judge granted the motion to at least one party, and judges denied the motion to at least one party in a third of the cases. The article lists all the cases in an Appendix. According to Professor Haymond, this data reveals the surprising impact of intervention on the litigation of national injunction cases.
Intervenors in national injunction cases have six primary motivations, in Professor Hammond’s opinion. First, intervenors commonly seek to offer new evidence to support a substantive claim or justify a proposed scope of remedy. Examples abound including the multi-suit challenge to former President Trump’s travel ban and the multi-state challenge to former President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents. Second, intervenors frequently propel supplemental legal arguments for judicial consideration. Third, though less often, intervenors attempt to add new claims against one of the original parties. Professor Haymond provides a salient example of a transgender student who intervened in Highland Local School District v. United States Department of Education to defend the Department of Education’s interpretation of “sex” in Title IX to include gender identity and to advance a constitutional and Title IX challenge against the district.
As a fourth overarching category, Professor Haymond suggests that intervenors often seek to provide a new perspective or narrative framing to national injunction cases. For this classification, the article offers DACA suits on immigration policy where intervenors wish to embody the perspective of young, affected immigrants. Other examples range from ACA challenges to exemptions for religious schools from LGBTQ anti-discrimination regulations. For the fifth class, the article suggests national injunction cases in which intervenors, such as in the travel ban cases, constitute a new injured plaintiff to satisfy Article III standing requirement of “one-good plaintiff.” (P. 38.)
In the final sixth grouping, Professor Haymond explores intervenors who seek to prevent the original parties from dismantling the case via settlement or declining an appeal from an adverse ruling. Again, Professor Haymond culls through the cases to pinpoint examples of this phenomenon in action. As the article uncovers, this tactic often occurs when the federal government makes a strategic determination to alter its policy such as regarding the definition of “waters of the United States.” (P. 39.) Intervenors also arise when the federal government relinquishes its defense of a challenged policy or rule such as the FDA’s requirements for in-person dissemination of Mifepristone. As Professor Haymond explains such intervenors often ground their participation as essential to the court’s review of troubling government policies or litigation tactics. This phenomenon, as described by some intervenors, centers on the strategy of certain federal agencies to “sue and settle” in, for example, the Public Charge cases and challenges to limits on immigration during the Covid-19 crisis. (P. 40–41.)
The motivations of intervenors paint a clear picture, but as Professor Haymond demonstrates, judicial decisions about intervenors are unpredictable and the outcomes inconsistent. Professor Haymond suggests that the negative conditions may be even worse given that the data represents only a relatively small portion of rulings where judges have offered reasons for granting or denying motions to intervene. These charges merit examination given just how consequential intervention decisions are. The author admits that common intervenor effects on arguments and evidence are mild, but a more troubling consequence arises “when intervenors force cases to proceed past when the original parties would have ended the suit.” (P. 44.) A quintessential example that the article discusses is California v. Texas, in which the intervenors were the sole party to appeal a court determination on the merits of the Affordable Care Act. Other examples involved policy determinations of the EPA and the FDA. The author acknowledges that not all intervenors are the same, but intervenors as the lone appealers pose normative considerations including the goals of Rule 24 and, more broadly, the proper role of federal courts in prominent, politically volatile cases.
Professor Haymond raises troubling concerns regarding the undermining of procedural purposes, decreasing judicial efficiencies, and exacerbating diminished party control. According to the article, not only do the rules not serve their intended goals, but with respect to intervenors, the relevant rule creates additional negative implications. These concerns include broad judicial discretion to determine whether the case proceeds as well as increased judicial involvement in politically infused cases. It undermines judicial impartiality. As noted earlier, an unusual aspect of the latter concern is that intervenors may cause the litigation to survive after the main parties disappear, drop their appeal, or settle. This phenomenon occurs despite intervenors themselves lacking standing. As Professor Haymond warns, such breakdowns may embody the canary in the coal mine about larger, structural deficiencies and systemic problems.
Fortunately, the article includes and assesses recommendations including modifying the presumption of adequate representation either via doctrinal adjustments or rulemaking by the Federal Civil Rules Advisory Committee. Other suggestions focus on remedial intervention such as judicial narrowing of intervention limited to the scope of the remedy, but notes the better course may be the promulgation of a new rule explicitly permitting remedial intervention. Given the high stakes, Professor Haymond recommends that judges broadly grant remedial intervention on the efficacy of national injunctions. Though Professor Haymond recognizes the potential costs, the article provides a model for remedial intervention attainable in fast-moving litigation—the court in State of Louisiana v. Centers for Disease Control denied an intervention motion but swiftly permitted prospective intervenors participation rights including oral argument on the scope of injunctive relief. With such reforms, Professor Haymond convincingly argues that the rules of civil procedure will better serve relevant goals and better equip federal judges with helpful tools for exercising more principled discretion in consequential decisions regarding intervenors and universal remedies.
