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February 05, 2019

Nationwide Injunctions: Are They Good Law? Are They Good Policy?

By Howard J. Bashman

Attendees at the 2018 AJEI Summit in Atlanta were treated to a discussion on the cutting–edge issue of the legality of nationwide injunctions from two thought leaders on that subject, law professors Amanda Frost of the American University Washington College of Law and Samuel Bray of the Notre Dame Law School. U.S. District Judge Amy Mil Totenberg of the Northern District of Georgia moderated the fast–moving, hour–long discussion.

Frost and Bray are both published authorities on the issue of nationwide injunctions, orders that are also sometimes referred to as global or cosmic injunctions. Frost published an article on the subject in the NYU Law Review, while Bray’s article appeared in the Harvard Law Review. Those familiar with these articles could reliably anticipate that Frost’s remarks were going to support the use of nationwide injunctions in some circumstances, while Bray’s remarks were going to argue against their legality and advisability.

To their credit, both Bray and Frost conceded that one’s views on the lawfulness and advisability of nationwide injunctions could easily be influenced by one’s political leanings. Toward the end of the Obama presidency, Republican opponents of that administration’s healthcare and immigration policies frequently sought and regularly obtained nationwide injunctions from conservative federal district judges in Texas blocking those policies. More recently, during the Trump administration, opponents of the administration’s policies on immigration and other issues have regularly sought and obtained nationwide injunctions against those policies from more liberal federal district judges in California and elsewhere. Thus, staunch conservatives may have been much more enthusiastic about the propriety of nationwide injunctions when used to block Obama policies than now, when they are being used to block Trump administration policies. Similarly, liberals may not have agreed with the advisability and legality of nationwide injunctions against the Obama administration, but now their use against the Trump administration’s policies might seem like quite a good idea.

Professor Frost, in her remarks, argued forcefully that nationwide injunctions can be lawful in appropriate cases, especially when they are needed to remedy the injury or harm that is at stake in the suit. If nationwide injunctions could not issue against clearly unlawful policies and regulations, then the only alternative would be for each and every individual who is affected or harmed by those policies and regulations to sue separately, which would often be infeasible. At the same time, ever increasing limits on when class actions can properly be maintained, greatly limiting their usefulness and availability, have only served to increase the need for the nationwide injunction mechanism.

Professor Frost acknowledged that one problem inherent in nationwide injunctions is that different federal district courts across the country may issue conflicting rulings on issues at the core of a single dispute. If one trial judge requires the federal government to stop enforcing some policy as unlawful, but another federal district judge elsewhere rules that the government can continue to enforce the policy because it is lawful, that would seem untoward, and presumably, under these circumstances, the judge who issued the nationwide injunction should avoid holding officials faced with conflicting court rulings in contempt.

Professor Bray, by contrast, argued against the advisability and legality of nationwide injunctions on several grounds. To begin with, federal courts traditionally issue rulings that govern only the parties directly before the court and not non–parties. Viewed that way, nationwide injunctions represent courts’ flagrantly disregarding the usual constraints of judicial power. Next, Bray argued that the recent discovery and exercise of a nationwide injunctive power that was never previously thought to exist further demonstrates the questionable historical pedigree of this practice. Notwithstanding the unavailability of nationwide injunctions until recently, the executive branch in earlier times would broadly respect judicial rulings that declared executive action unlawful. Moreover, federal courts should remember that the President also takes the oath of office to behave in accordance with the U.S. Constitution, and the executive branch has its own independent obligation to reach conclusions about the lawfulness of its policies. The key question, in Professor Bray’s view, is how much should the judicial branch change the rule of law as the result of untraditional changes in how the other branches are behaving.

Bray and Frost gave the attendees at their session plenty to think about. Meanwhile, in the courts, both the Fourth Circuit and the Ninth Circuit have upheld the use of nationwide injunctions to block Trump administration immigration policies, and other federal appellate courts can also be expected to address the propriety of nationwide injunctions in due time. Eventually, however, the U.S. Supreme Court will have the final word on this controversial subject. Ironically, the U.S. Supreme Court, sitting at the top of the ladder of judicial review for matters of federal law and the U.S. Constitution, necessarily has the power to bind all lower courts in the nation with its rulings. My expectation is that, as a result of the Justice Anthony M. Kennedy’s departure from the Supreme Court and his replacement with Justice Brett M. Kavanaugh, the Supreme Court will be far more likely to preclude federal district courts from issuing injunctions that extend beyond the parties directly before the court, and that exceed the geographical area of the issuing court’s jurisdiction.

But whether my prediction proves right or wrong, Professors Frost and Bray did a wonderful job of demonstrating that strong, thoughtful arguments exist both for and against the advisability and legality of nationwide injunctions.

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Howard J. Bashman

Howard J. Bashman is a nationally known attorney and commentator whose practice focuses on appellate litigation at the Law Offices of Howard J. Bashman in Willow Grove, Pennsylvania. His blog, How Appealing, is hosted by Breaking Media and is regularly visited by U.S. Supreme Court justices and many other federal and state appellate judges, appellate lawyers, members of the news media, and other interested readers.