On November 30, 2017, The House Committee on the Judiciary held a hearing on the role and scope of nationwide injunctions by district courts. The controversy at hand was whether federal district courts should be allowed to author decisions that stop the implementation of laws across the nation as a form of remedy to the plaintiffs. Scholarly and legal debate over nationwide injunctions has increased in recent years as both Democrats and Republicans have sought such remedies to stop the government’s implementation of laws and executive orders. Most recently, Democrats, through district courts in the Western District of Washington and the District of Hawaii, have received nationwide injunctions against numerous iterations of President Trump’s travel ban, the first of which was Executive Order 13769. Republicans, on the other hand, used the Southern District of Texas to issue a nationwide injunction against the Deferred Action for Parents of Americans (DAPA).

Our nation’s judicial system has not always had to grapple with the controversy over nationwide injunctions. As Professor Samuel Bray testified before the Judiciary Committee, nationwide injunctions did not exist as a judicial remedy for the first 170 years after the establishment of the federal court system. Professor Bray characterizes the development of this remedy during the 1960s and 1970s as “accidental,” and the remedy itself as “obscure.” Since their inception, nationwide injunctions have seen increased weaponization; more recently, Republican state attorneys general used them to block major actions by President Obama (of which DAPA is but one example).

As Professors Bray and Michael Morley further testified, nationwide injunctions by district courts may be harmful to the judicial process and its norms and rules, or even unconstitutional. The dangers of nationwide injunctions include their allowance of plaintiffs to forum shop, their negative effect on the Supreme Court’s decisions, their bypassing the class-action mechanism and their hampering the government’s ability to re-litigate potentially-unconstitutional laws in multiple jurisdictions.

Simply put, forum shopping describes the potential for a plaintiff to seek out a court that is likely to agree with the arguments the plaintiff is presenting. For example, liberal-leaning courts in western Washington and in Hawaii were likely to disagree with the initial and later iterations of the travel ban; conservative-leaning courts in southern Texas were likely to disagree with DAPA. When the tactic of forum shopping is combined with the far-reaching effects of nationwide injunctions, which can block policies across the nation rather than within a specific district’s jurisdiction, the resulting judgment can resemble legislation via the judicial system, according to the critics of nationwide injunctions at the panel. Democratically-passed legislation and lawful executive orders can be arbitrarily stalled by any single unelected district court judge. As Professor Bray wrote in his testimony, “you shop ‘til the statute drops,” to the detriment of efficient democracy.

The use of nationwide injunctions also degrades the Supreme Court’s decision-making process. Usually, justices prefer to deny writs of certiorari on cases until there is a circuit split. At that time, the issues at hand have usually had the time to “percolate” through the judicial system. The Supreme Court synthesizes and analyzes those existing opinions — from state courts, district courts, circuit courts — when making its final judgment on the issues. Because nationwide injunctions steer the law nationwide in one direction or the other immediately through district courts, district court splits have the potential to force the hand of the Supreme Court to act, because the Supreme Court cannot allow the law to vary between regions. The Court’s subsequent decision is made with limited evidence and in less time, leading to less-thorough opinions — such as the hastened partial decision about the third iteration of the travel ban with the unclear “bona fide” phrasing.

The nationwide injunction as a tool of injunctive relief bypasses the existing mechanism for class action lawsuits, the typical route for a plaintiff seeking a decision like a national injunction — one that binds many people together in one decision. The requirements for class action lawsuits, defined in Federal Rule 23, are strict, to impose order in the judicial system. In particular, the criteria under Rule 23(b) — in which plaintiffs must prove either (a) separate adjudications could lead to inconsistent decisions of other class members’ claims, (b) injunctive relief is appropriate or (c) class action is superior to individual action because common questions dominate the suit — prevent some of the potential excesses associated with national injunctions, such as inconsistent interpretations of the law as applied nationwide.

Finally, as Professor Morley testified, nationwide injunctions violate the doctrine of non-mutual offensive collateral estoppelagainst the federal government, a precedent set in U.S. v. Mendoza (1984). Essentially, this doctrine states that one plaintiff’s favorable ruling holding some provision unconstitutional cannot be used against the federal government should the government decide to re-litigate the issue against another plaintiff in a different jurisdiction. The government is entitled to re-litigate the issue in other circuits, which are allowed to develop circuit-specific bodies of precedent, until the Supreme Court weighs in and unifies the interpretation of the law nationwide. Whether one agrees or disagrees with the doctrine, it is law, and nationwide injunctions bar the government from re-litigating the same issue in other jurisdictions.

Nationwide injunctions, according to Professor Bray, are also unconstitutional; he claims they exceed the scope of the text of Article III of the Constitution. Article III states that the jurisdiction of federal courts extends to actual controversy, or an actual dispute between two parties in court. Professor Bray argued at the hearing that nationwide injunctions, on the other hand, prescribe remedies for all people within the United States, even though those people haven’t brought suits — the district courts issuing nationwide injunctions are exceeding their judicial power by, in effect, deciding the case and issuing injunctive relief for those non-litigants. For this reason, Professor Bray and other scholars prefer the term “national” or “universal” injunctions. The problem is less about the scope of decisions extending across a nation as it is about the courts universally handing remedies to non-litigants.

Though the majority of the panel present to testify took strong positions against nationwide injunctions, Professor Amanda Frost articulated some strengths of nationwide injunctions and explained the legal basis behind the tool. Coming from an immigration law background, she explained that the nationwide injunction may be the only tool to provide complete relief with regards to immigration. Because people in the United States are free to travel amongst the states as they please, a Texas-wide injunction over DAPA, for example, would be ineffective to remedy Texas’s complaints — illegal immigrants could simply cross the Texas-New Mexico border and make their residence in Texas. Professor Frost cites desegregation and redistricting as other fields where, to provide complete relief, non-parties to the suit are prescribed a remedy, in effect.

Professor Frost also used her testimony to rebut some of the points put forward by Professors Bray and Morley, particularly, in regards to forum shopping, the potential for conflicting decisions and the effect on the Supreme Court’s decision-making. Professor Frost argues that not only were the framers of the Constitution cognizant of forum shopping, they encouraged it when they set up the federal judiciary, by allowing Americans to file lawsuits challenging federal laws in both federal and state courts — allowing the plaintiff to pick a favorable venue. Professor Frost cites Alexander Hamilton inFederalist No. 82, who notes that state courts have concurrent jurisdiction with federal courts over federal claims unless Congress expressly notes otherwise.

Professor Frost further noted that nationwide injunctions can unify interpretations of the law, especially in fields where uniformity is important. She points to case studies in immigration law and regulatory law, where differing interpretations project confused and irregular foreign policy or lead to unenforceability. In Tootkabani and Louhghalam v. Trump (2017), a case argued before the U.S. District Court for the District of Massachusetts, the court ruled in favor of the plaintiffs against Executive Order 13769, implementing the travel ban. The court limited its injunction to Boston’s Logan International Airport; however, foreign nationals bypassed the geographic limit by redirecting their travel to Logan and then traveling to other states. The lack of a unified front confused airline personnel, some of whom began blocking foreign nationals from boarding flights headed to Logan International in an effort to comply with the nationwide ban.

In In Re E.P.A. (2015), the Sixth Circuit Court of Appeals permitted a preliminary nationwide injunction — an injunction to stay a law’s implementation nationwide before the merits of the case are argued — against an Army Corps of Engineers/Environmental Protection Agency rule that could have unconstitutionally extended the E.P.A.’s authority. The court reasoned that, while the court deliberated the merits of the rule, the pre-Rule regime would provide stability and mitigate confusion — a partial injunction against the E.P.A. in the eighteen states that challenged the rule would have been a regulatory nightmare. With this positive effect of nationwide injunctions in mind, Professor Frost explains that constitutional crisis-inducing and conflicting nationwide injunctions are exceedingly rare, usually resulting in one judge backing down and narrowing the scope of his or her injunction.

Finally, Professor Frost argues that the potential for conflicting nationwide injunctions is not an aberration in our judicial system, but the norm. State and federal courts, district and circuit courts, and circuits themselves, among others, can all issue disagreeing opinions with each other on federal law before the Supreme Court unifies the law nationwide. In the event of a four-four split on the Supreme Court, conflicting decisions at the circuit level will remain. Percolation, a positive effect of our judicial system (as Professor Bray argued), is only possible because of its fragmented nature. Though conflicting nationwide injunctions may have a negative effect on Supreme Court decision-making, the Court ruled in Califano v. Yamasaki (1979) that it would rather keep nationwide class action suits (per Federal Rule 23) despite the effect on decision-making, because of their beneficial aspects. The Court has yet to rule a preliminary nationwide injunction unconstitutional.

Clearly, nationwide injunctions come with both benefits and drawbacks; the panelists testifying disagreed on the necessary reform to “fix” the judicial system. Professor Bray, the fiercest detractor of nationwide injunctions, proposed that the Supreme Court either hear a case and rule nationwide injunctions unconstitutional, the advisory committee on the Federal Rules of Civil Procedure could alter the rules of the judiciary, or that Congress could exercise its statutory power and revise the jurisdiction of the court to exclude non-parties of the case at hand. He stressed repeatedly during the hearing that there could be no half-measures, deciding which nationwide injunctions were “good” or “bad.” Professor Morley also proposed that courts issue “plaintiff-oriented injunctions” rather than nationwide injunctions, also known as “defendant-oriented injunctions” that bar the defendant (the government) from enforcing the law in the future. Plaintiff-oriented injunctions would solely attempt to redress the grievances of the plaintiff of the case.

However, while plaintiff-oriented injunctions may seem appealing on paper, they ignore the realities of the judicial system on the ground. National injunctions also prevent excessive burdens on a financially-strained system. Professor Frost offered Hawaii as an example, which cited the first travel ban’s impact on Hawaii’s residents, employers, education institutions and sovereignty. Should every foreign exchange student have had to bring a suit to federal court even though each suit relied on the same principle? What about every class of citizens — students, professors, businesspeople, tourists — across all fifty states and the District? Plaintiff-oriented injunctions also fail with regards to immigration and regulation, as pointed out above.  

While Professor Frost argued for modest reforms, such as requiring litigants to make the case for nationwide injunctions during their hearing, she also argued that cases, rules or statutes to legislate the existence of nationwide injunctions may be unnecessary. Because the debate and literature surrounding nationwide injunctions are becoming mainstream, judges are beginning to self-regulate their issuances of nationwide injunctions to prevent or temper the issues that critics discuss — issues that include the issuance of broad preliminary nationwide injunctions, which force higher courts to review the injunctions before the merits of the case have been decided. The higher courts have no evidence to draw from when deciding whether to lift injunctions or sustain them.

Nationwide injunctions, a judicial remedy that has only recently emerged as a tool to provide complete relief in cases against the federal government, are the subject of intense controversy. Through hearings such as the one late in November and the individual writings of the professors on the panel, the legal community may be able to reach a solution that preserves the injunctions’ benefits while mitigating their drawbacks.