Abusing the Judicial Power: a Geographic Approach to Address Nationwide Injunctions and State Standing

• Publication year: 2021

Abusing the Judicial Power: A Geographic Approach to Address Nationwide Injunctions and State Standing

Joseph D. Kmak

ABUSING THE JUDICIAL POWER: A GEOGRAPHIC APPROACH TO ADDRESS NATIONWIDE INJUNCTIONS AND STATE STANDING

Abstract

The judicial branch's primary function in a tripartite system of government is to institute checks and balances on the executive and legislative branches by interpreting and applying the law. This command is limited under Article III of the Constitution, which gives federal courts the power to decide only a limited set of cases and controversies. Article III judges are appointed and confirmed with life tenure. This system of life appointments evidences the Framers' intent to preserve the federal judiciary as a body of insulated, apolitical decision-makers as opposed to a third political arm of the federal government. For over two centuries, the nation's judicial system has been a revered institution of law and order, maintaining the public's confidence in the administration of justice. The recent and increasing use of nationwide injunctions, which implement expansive theories of state standing and equitable power, puts this notion in jeopardy.

In the context of nationwide injunctions, state attorneys general are forum shopping to bring suits to the most sympathetic ears. In doing so, state attorneys general have asserted attenuated forms of standing to have their cases heard. Because these state actors are specifically seeking out the most favorable district court, they are in a greater position to find a court willing to expand the limits of standing and equity to hear their case. The idea that an injunction should be a primary means of seeking redress is a relatively new development advanced in a sharply divided political climate. To preserve and protect the role of the judicial branch, some measures must be taken to dissuade state actors and federal courts from abusing the judicial power.

This Comment explores how the traditional limitations of standing and equity are being vastly expanded by recent nationwide injunctions. Much of the blame for this expansion rests on individual state attorneys general and sympathetic district judges. In identifying these individuals as the root cause of such expansion, this Comment specifically tailors a solution by advocating for federal legislation that places limitations on district courts hearing cases initiated by state actors seeking nationwide injunctions.

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Introduction.....................................................................................1327

I. Recent Applications of Nationwide Injunctions..................1332

A. Nationwide Injunction Against the Obama Administration .... 1332
B. Nationwide Injunctions Against the Trump Administration ... 1334
C. Continued Criticism by the Supreme Court............................ 1336
D. Executive Response to Nationwide Injunctions ...................... 1337

II. Origin of Nationwide Injunctions and Equitable Issues Presented......................................................................................1338

A. Origin of the Nationwide Injunction....................................... 1339

1. Early Cases of Semi-Broad Injunctions............................ 1340
2. Birth of the Modern Nationwide Injunction ..................... 1343

B. Constitutionality of the Court's Equitable Powers in the Context of Nationwide Injunctions ......................................... 1346

III. Issues Presented by an Expansion of State Standing..........1348

A. State Standing in the Context of Massachusetts v. EPA and Texas v. United States ............................................................ 1349
B. State Standing in the Context of Nationwide Injunctions Against the Trump Administration ......................................... 1352

IV. The Good, the Bad, and the Political Forces Creating the Issue ...............................................................................................1355

A. Dangers of Nationwide Injunctions........................................ 1356

1. Forum Shopping............................................................... 1356
2. Power Grab ...................................................................... 1356
3. Development of Law ......................................................... 1357

B. Rebutting the Cited Benefits of Nationwide Injunctions......... 1358
C. Political Factors Leading to Nationwide Injunctions............. 1360

1. Political Polarization on a Geographic Level.................. 1361
2. Political Motivations of State Attorneys General............. 1362

V. Proposed Solution: Statewide Limitation to Injunctions Brought by State Actors..........................................................1363

A. Encouraging Judicial Restraint and Addressing Standing..... 1364
B. Federal Legislation as a Concrete Solution ........................... 1364

Conclusion...............................................................................................1366

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Introduction

The growing use of "nationwide injunctions" by federal courts presents a threat to the separation of powers and has frustrated some of the most significant executive policies of both the Obama and Trump Administrations.¹ Nationwide injunctions, also commonly referred to as "universal" or "national" injunctions, are non-class action lawsuits that "purport to bar the federal government from enforcing a law or policy as to any person or organization, anywhere in the united states," as opposed to a traditional injunction that only applies to the plaintiffs of the case.² This practice is a more recent phenomenon in which "courts have gradually assumed the power to enter national injunctions against federal statutes and regulations."³ Recent cases implementing nationwide injunctions expose two glaring issues. First, courts have accepted relaxed views of standing, particularly in the context of state actors seeking to enjoin executive policies.⁴ Second, courts have acted contrary to traditional notions of equity by turning the extraordinary instance of an injunction applied to non-parties into the new norm.⁵

In the past decade, the increased use of nationwide injunctions has garnered significant media attention in the context of lawsuits directly seeking injunctive

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relief brought by state attorneys general against the federal government.⁶ These individual state actors are filing suit by asserting the rights of their citizens generally or claiming attenuated forms of direct injuries.⁷ This form of litigation against the federal government has increased following "the Supreme Court's decision in Massachusetts v. EPA, which relaxed the standing requirements for states" by holding that Massachusetts had "special solicitude" to sue in its quasi-sovereign capacity.⁸ Established standing limitations require a plaintiff to show a concrete and particularized injury that is "actual or imminent," rather than a hypothetical or intangible harm.⁹ Once standing has been met, courts have traditionally exercised equitable power by tailoring a specific ruling to the parties of the case, rather than the nation as a whole.¹⁰

Current nationwide injunctions initiated by state actors usually begin with an individual state attorney general seeking out a favorable district court.¹¹ The lawsuit then asserts standing to sue based on the theory that their state, or third parties that may be associated with their state, will experience an injury if the executive policy is enforced.¹² The individual district judge, whose court was sought out specifically for a favorable ruling,¹³ then issues a preliminary nationwide injunction that halts the executive policy as it applies to the nearly 330 million people living in the United States.¹⁴

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The increased use of nationwide injunctions sought by states positions the judicial branch at a crossroad between its ability to carry out its essential function of judicial review¹⁵ and becoming a political tool in itself. In 1788, James Madison wrote, "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."¹⁶ To protect the other two branches from judicial overreach, Article III of the Constitution limits federal courts' jurisdiction to only "cases" and "controversies."¹⁷ This limitation is a jurisdictional and remedial command that requires a plaintiff to show that they have "standing" to file suit.¹⁸ Even in the context of state actors, standing "is not just an empty formality" but requires a showing of a concrete and personalized injury to that plaintiff.¹⁹ Standing is an important doctrine in the context of the modern-day judicial branch, which has seen an increase in public law litigation.²⁰

In addition to the undesirability of nationwide injunctions based on standing and equitable grounds, the issuance of nationwide injunctions presents procedural issues that pose a threat to effective judicial review of important legal issues.²¹ If a singular district court is able to issue a definitive ruling against the government, the development of law in regard to that issue is frozen by "the first final decision rendered" and the Supreme Court is "deprived of the benefit it receives from permitting several courts of appeals to explore a difficult question."²²

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One has to ask: Why is the judicial system currently experiencing nationwide injunctions if they are based on attenuated forms of standing,²³ expand the court's equitable power, and pose a threat to the development of law?²⁴ The answer is layered and political, but it is relevant to note that the use of these nationwide injunctions has "accelerated dramatically" due to claims of executive overreach in both the Obama and Trump Administrations.²⁵ In a period of 8 years, Texas...