The Supreme Court’s recent ruling in Trump v. CASA that banned federal district court judges from issuing nationwide injunctions was met with mixed feelings among employer groups. Some of the most well-known injunctions were sought by employers—against the Occupational Safety and Health Administration’s (OSHA) vaccine mandate, federal contractors’ minimum wage, certain expansive pregnancy regulations, and more.
On the other hand, many opposed the use of such injunctions against a number of President Trump’s employer-supportive Executive Orders. Now that the Supreme Court has issued its decision, employers are figuring out how they can protect their rights under the new legal regime.
Influence of National Organizations Diminished?
As is true of many traditional special-interest litigants, an immediate result of the Court’s ruling may be to reduce the power and influence of the national employer organizations.
It’s still to be ironed out precisely how the standing requirements of class actions will apply when a national employer organization—the Chamber of Commerce, the National Federation of Independent Business (NFIB), Business Roundtable—seeks to sue on behalf of all of its members.
The current thinking is that such suits will face skeptical jurists and that individual corporations will be compelled to seek injunctive relief on their own—a slow and costly process that, not incidentally, strengthens the power of the executive and its agencies.
Direct Challenge to Regulation
Another stratagem available to employers is to avoid injunctions entirely and challenge the legality of the regulation at issue directly. This was the approach taken to challenge Equal Employment Opportunity Commission’s (EEOC) pregnancy bias and gender identity harassment rules.
The rules were eventually vacated by the courts—but only after more than a year of litigating. It’s likely that only those regulations considered the most burdensome and costly will be challenged in this way.
States Empowered
Although the Court foreclosed the option of lower court judges making nationwide decisions, the Court suggested that such would not be the case were a state, represented by its attorney general, to seek relief for its citizens. It’s all but certain this course will be followed, now by so-called ‘blue’ states challenging this administration and by ‘red’ states challenging the rules of any future Democratic administration.
The unfortunate effect of this is to further undermine the strength and supremacy of federal law and return the country to a time when one’s rights and obligations were determined by the state in which one lives.