Federal Judicial Power and Federal Equity Without Federal Equity Powers

This Article discusses the ways in which the federal courts do and do not have equity powers. Article III courts have the judicial power, which enables them to apply the law, primary and remedial. Applicable remedial law often includes the law of equitable remedies, so the federal courts have the power and obligation to give remedies pursuant to equitable principles. The law of equitable remedies, written and unwritten, is external to the courts, not created by them, the same way written law is external to the courts.

Because the unwritten law of equitable remedies is found largely in judicial practice, courts contribute to the development of that law by adding to the body of practice. That practice is a body of sub-constitutional law, subject to change by Congress when it exercises one of its enumerated powers. The Constitution neither adopts the law of equitable remedies nor authorizes the federal courts to make the principles of equity in the way a legislature creates statutory law. For that reason, the Constitution in important respects does not confer equitable powers on the courts.

These conclusions have significant implications. First, because the Constitution does not adopt principles of equity, Framing-era equity practice is not binding law today. That practice, however, provides important information about Framing-era understandings of judicial power and cases and controversies. Second, when Congress changes the law of equitable remedies, it is not invading the judicial power and so is not subject to separation-of- powers limitations.

When Congress has power to adopt the law of remedies but not the primary legal rule at issue, however, Congress must respect the distinction between primary and remedial law. Congress may not use its power over remedies to change primary rules it cannot change directly. Third, the absence of legislative-type power in the federal courts entails limits on their ability to innovate with respect to equitable remedies. In order to gain insight into the acceptable degree of judicial innovation, in contrast with innovation that only a legislature may adopt, the Article discusses several important Supreme Court cases that developed the law of equitable remedies in public law litigation.