Equitable Regulatory Balancing

What happened to balancing the equities? According to the standard formulation, courts must weigh competing interests when determining whether to grant preliminary relief in litigation. That is in addition to considering the plaintiff’s likelihood of success on the merits and assertions of irreparable harm. But in regulatory cases, where preliminary relief is increasingly salient in the national political sphere, courts have turned away from equitable balancing. Today, preliminary-relief determinations in these cases are almost entirely about the merits. Courts, including the Supreme Court, simply declare that the interests are “very weighty” on both sides and thus decline to engage in the time-honored tradition of equitable balancing that defined the task of courts at the preliminary stage when Congress enacted the Administrative Procedure Act. But equitable balancing is possible—and the Supreme Court’s recent turn in administrative law jurisprudence can light the way forward. When considering the government’s interest preliminarily in a regulatory case, courts should disfavor novel regulation, elevate federalism, respect the President’s interest in internal executive branch management, and take account of the scope of the requested remedy. The government’s interest is not the same in every case, and applying these four principles will help courts move past “very weighty” and get down to brass tacks when balancing the equities. A return to equitable balancing in regulatory cases can have several positive implications: disciplining remedial practice, promoting interbranch harmony, alleviating the Supreme Court’s emergency docket, clarifying the role of amicus-brief filers, and ameliorating other issues at the preliminary-relief stage.