How Nationwide Injunctions Have Thwarted Recent Immigration Policy

• Author: Madison J. Scaggs
• Position: J.D. Candidate, The University of Iowa College of Law, 2020; B.A., University of Illinois Urbana-Champaign, 2017
• Pages: 1447-1473

1447

How Nationwide Injunctions Have

Thwarted Recent Immigration Policy

Madison J. Scaggs*

ABSTRACT: Nationwide injunctions are a relatively recent phenomenon

that have been used with increasing frequency to halt policies, laws, and

regulations. A nationwide injunction can keep a policy from going into effect

in the whole nation, despite the fact that it is issued by a single district court

judge. The Obama and Trump administrations have both had major

immigration reform plans thwarted due to nationwide injunctions issued by

district court judges. Not surprisingly, the use of nationwide injunctions has

become a hotly debated topic. A recent Supreme Court concurring opinion

suggested that the use of nationwide injunctions is unconstitutional.

Legislation has been in the works to stop the remedy’s use. Proponents argue

that the nationwide injunction is sometimes necessary, especially in the

immigration context, in order to provide complete relief against nationwide

suffering. Persons opposed to the nationwide injunction point to the lack of

historical or textual basis for its use and its disruption of the separation of

powers between the branches of the government. Ultimately, this Note argues

that nationwide injunctions do not belong as a remedy in the immigration

law context.

I.INTRODUCTION ........................................................................... 1448

II. BACKGROUND ............................................................................. 1450

A.THE BASIC ELEMENTS OF THE NATIONWIDE INJUNCTION ......... 1450

B.THE HISTORICAL CONTEXT OF NATIONWIDE INJUNCTIONS

IN THE UNITED STATES .......................................................... 1451

C.THE PERIL OF PRESIDENT OBAMA’S IMMIGRATION POLICY

AT THE HANDS OF A NATIONWIDE INJUNCTION ....................... 1453

D.THE TRUMP ADMINISTRATION’S STRUGGLE WITH

IMMIGRATION EXECUTIVE ORDERS AND NATIONWIDE

INJUNCTIONS ........................................................................ 1455

*

J.D. Candidate, The University of Iowa College of Law, 2020; B.A., University of Illinois

Urbana-Champaign, 2017.

1448 IOWA LAW REVIEW [Vol. 105:1447

III. THE PRESENT DEBATE AND DEMANDS FOR ANSWERS ON

NATIONWIDE INJUNCTIONS ......................................................... 1460

A.CURRENT POLITICAL LANDSCAPE OF NATIONWIDE

INJUNCTIONS ......................................................................... 1461

B.ARGUMENTS IN DEFENSE OF THE USE OF NATIONWIDE

INJUNCTIONS ......................................................................... 1464

C.ARGUMENTS AGAINST THE USE OF NATIONWIDE

INJUNCTIONS ......................................................................... 1467

IV.NATIONWIDE INJUNCTIONS SHOULD NOT BE ALLOWED AS A

REMEDY IN THE IMMIGRATION CONTEXT ................................... 1469

V. CONCLUSION .............................................................................. 1473

I. INTRODUCTION

Nationwide injunctions are a highly contentious and timely topic, mainly

as a result of the Trump Administration’s immigration policies.1 The halting

of President Obama’s immigration policy in 2014 provides a brief illustration

of how a nationwide injunction works. Then-President Obama attempted to

put an immigration policy in play through the use of an Executive Action;

however, a single district court judge in the Southern District of Texas issued

a ruling that stopped the plan from going into effect, not only in Texas or

even just the Fifth Circuit, but completely halted it from going into effect

anywhere in the United States.2 With the ability to issue a nationwide

injunction, it seems almost as though a district court judge has as much power,

if not even more, than the President of the United States in regards to the

policy, executive order, or regulation at issue.

Additionally, nationwide injunctions are political. They are a political

remedy because nationwide injunctions are often used by judicial activists

belonging to one party as a tool to stop the immigration plans of the other

party by bringing suit in either a liberal or conservative district.3 The differing

reactions over time of former Attorney General Jeff Sessions reflect the highly

political nature of nationwide injunctions. When the district court judge

stopped President Obama’s immigration plan, “[a]s a senator, Mr. Sessions

cheered that ruling, saying it was ‘an injunction that stopped the Obama

1. Ariane de Vogue, The Big Legal Issue Buried in the Travel Ban Case, CNN: POL. (Apr. 25,

2018, 11:03 AM), https://www.cnn.com/2018/04/25/politics/supreme-court-nationwide-

injunctions-travel-ban/index.html [https://perma.cc/56FL-34U8].

2. Texas v. United States, 86 F. Supp. 3d 591, 646, 677–78 (S.D. Tex. 2015).

3. Ronald A. Cass, Nationwide Injunctions’ Governance Problems: Forum-Shopping, Politicizing Courts,

and Eroding Constitutional Structure, GEO. MASON L. REV. (forthcoming) (manuscript at 17–20) (on

file with author).