John F. Preis


If 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.

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