Bench Memos

Eighth Circuit Injunction Against HHS Mandate

I’m pleased to pass along that an Eighth Circuit panel has, for now, overridden the badly confused decision (O’Brien) from Missouri that denied a Catholic employer injunctive relief against the HHS mandate. As David French noted yesterday on the Corner, the panel granted the plaintiffs’ motion for a preliminary injunction pending appeal. That means that the plaintiffs are not subject to the mandate while the panel decides their appeal, and it’s also a very strong sign that the panel is favorably disposed to reverse the district court.

That leaves the recent, and also badly confused, Hobby Lobby decision from Oklahoma as the sole outlier among the cases that have decided motions for preliminary injunctive relief on the merits (rather than on standing, ripeness, or other justiciability grounds). Let’s hope that the Tenth Circuit, before which a motion for injunctive relief is pending, corrects that aberration.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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