Date01 May 2020
AuthorSmith, Milan D., Jr.


Asthis Article is submitted to the editors, at least eight cases are currently pendingbefore the Ninth Circuit involving the propriety of a nationwide injunction. (1) In my almost fourteen years on the bench, I have never before seen nationwide injunctions handed down with the frequency that I see now. Commentators have taken notice. (2) Supreme Court Justices have taken notice. (3) Members of Congress have taken notice. (4)

Iuse the term "nationwide injunction" as shorthand for a specific phenomenon: federal district court orders enjoining the federal government from implementing a particular executive policy, anywhere, and with regard to anyone in the nation. (5) It is these injunctions that have attracted so much critical attention lately. And it is also these injunctions that have attracted my interest as I have considered a plethora of such orders coming before the Ninth Circuit. I believe that identifying this limited category of interest helps point the way toward remedies that sweep no more broadly than the problem they are actually trying to solve.

Thus,I enter the already cacophonous nationwide injunction conversation with the aim of adding some nuance. Not all nationwide injunctions are created equal. For instance, a nationwide injunction may be better justified in protecting a single plaintiff suffering an injury with nationwide causes rather than in protecting numerous individuals suffering the same injury nationwide,or likewise in protecting a plaintiff directly harmed by the challenged action rather than one indirectly harmed by the harm directly impacting others.

Ultimately, I argue that nationwide injunctions are justified in certain contexts, and in those contexts are within the Article III powers of a court sitting in equity. Actual practice has gone considerably further, however, than the circumstances I would endorse. In particular, I argue that current law and practice underprioritizes percolation of important legal questions across multiple circuits, awards relief to organizational plaintiffs with dubious standing and/or equitable right to obtain it, and inappropriately relies on assumptions about injuries to nonparties. It is time for courts to declare rules that more narrowly constrain the issuance of nationwide injunctive relief.At a minimum, we should ask district courts to provide a more rigorous explanation of the propriety of nationwide scope.

In Part I of this Article, I discuss the existing law and current debates surrounding nationwide injunctions. I consider the origins of both the apparent recent surge in the issuance of nationwide injunctions and the apparent recent surge in skepticism concerning nationwide injunctions. In Part II, I analyze the potential justification for issuance of a nationwide injunction that I find most compelling, and on which basis I argue a court is well within the bounds of Article III notwithstanding the indirect benefits of such injunction to nonparties. In Part III, I consider three other sometimes-asserted justifications that I argue courts should rule are insufficient reasons to grant nationwide injunctions, whether on Article III grounds or simply as a prudentialmatter. In Part IV, I analyze two problems with nationwide injunctions that I find particularly problematic. I argue that these problems, in combination with numerous other disadvantages of nationwide injunctions noted by other commentators, should move courts to attempt reforms aimed at limiting the circumstances under which nationwide injunctions may be issued.In Part V, I discuss potential reform ideas. I conclude that both substantive limitsand certain procedural requirements would help limit the issuance of nationwide injunctions to cases in which they are truly justified.


    Nationwide injunctions are not new, although there is serious scholarly debate about how old they are. (6) Before the recent surge in nationwide injunctionsagainst policies of President Trump's administration, (7) nationwide injunctions halted numerous policies under President Obama's administration. (8) Nationwide injunctions likewise plagued President George W. Bush's administration, (9) President Clinton's administration, (10) and multiple other administrations dating back at least to President Lyndon B. Johnson's administration. (11) It appears, however, that the phenomenon has recently increased by an order of magnitude.

    1. Existing Law

      Existing law is generally quite permissive regarding the issuance of nationwide injunctions, (12) which is to say that there is no law that squarely regulates them (as I have defined them here) as a category. Courts issuing nationwide injunctions often cite Califano v. Yamasaki, (13) a 1979 Supreme Court decision reviewing a nationwide injunction issued in protection of a certified nationwide class, for two propositions: "[I]njunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.... [T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class." (14)

      Thesepropositions are somewhat in tension, as the "violation established" may exceed the scope of the violation that must be enjoined to afford theplaintiff "complete relief." In any event, the "complete relief" proposition appears to be used as often to widen the scope of relief as to narrow it. (15)

      Moreover,when district courts grant nationwide injunctions, those decisions are reviewed deferentially for abuse of discretion. (16) Thus, a three-judge appellate panel is limited in the extent to which it can reevaluate the equities of a nationwide injunction absent clear legal standards by which the district court failed to abide. Even if an appellate court ultimately acts to stay or vacate a nationwide injunction improvidently granted, that injunction binds the federal government in the interim and brings its policy to a halt.

      Adefining feature of an injunction is that it is enforceable through contempt proceedings. (17) Federal officials who violate an injunction--even if an appeal is pending and even if the government ultimately prevails in the appeal or in a final decision by the district court--are at personal risk of criminal sanctions. (18) Both the original plaintiffs and nonparties alike may bring contempt proceedings if they are beneficiaries of the injunction, (19) and nationwide injunctions are apt to have numerous beneficiaries.

      Nationwide injunctions therefore differ in an important way from noninjunctive court decisions regarding the lawfulness or constitutionality of afederal policy. (20) A noninjunctive district court decision that a federal policy is unlawful or unconstitutional in the context (for example) of a 42 U.S.C. [section] 1983 claim for damages, a defense against enforcement of the policy, or a declaratory judgment has no precedential effect even within the same district (21) and no preclusive effect on the federal government except with regard to the parties to that same case. (22) This is true even if the district court's holding is that the policy is unconstitutional on its face. (23) A court may expect or hope, as a practical matter, that federal defendants will alter their behavior promptly in response to the court's ruling, (24) but this is not the same as legally requiring as much. (25)

    2. Ongoing Debates

      Therise of the nationwide injunction begs the question: Is the underlying trend more that the judiciary is aggrandizing itself with power to declare nationalpolicy that should belong to the executive? (26) Or is it that the executive is aggrandizing itself with power to declare national policy that should belong to the legislature? (27) Of course, not all nationwide injunctions are issued on the basis of a separation-of-powers violation. Often the announced violationssound in individual liberties, statutory interpretation, or administrative procedure.Yet even these issues contain a separation-of-powers element. The separation of powers under our Constitution is designed to safeguard individual liberties (28)--the improper assumption of too much power by one branch puts those liberties in jeopardy. Likewise, when the executivebranch exceeds statutory authority or sidesteps administrative procedural requirements, it is exceeding the constraints which it is the legislative branch's prerogative to create.

      To the extent the rise in nationwide injunctions simply reflects a rise in unlawfulexecutive actions, one might think that there is no cause for concern regarding judicial overreach. And yet the nationwide injunction poses unique problems for the judiciary and often mires courts in questions they are ill suited to answer. It is perhaps not surprising, then, that nationwide injunctions are currently the subject of a vigorous scholarly debate.

      For instance, one academic battlefield concerns the historical origins of nationwide injunctions as a matter of equity, and thus the power of federal district courts under Article III, properly construed, to issue them. Perhaps most prominently, Professor Bray argues that nationwide injunctions are incompatible with the historical powers of a federal district court sitting in equity. (29) He dates the first nationwide injunction to 1963, (30) citing this late emergence as evidence of a lack of constitutional authority. He argues that thattwo shifts in jurisprudential philosophy, combined with "renewed judicial confidence"in the wake of Brown v. Board of Education, created the conditions from which nationwide injunctions emerged: (1) a shift from conceptualizing suits against federal officers as suits to prevent enforcement of a policy in a particular case to conceptualizing them as suits against the policyitself; and (2) a shift from conceptualizing judicial holdings that a policy couldnot be enforced as holdings that a higher law controlled to conceptualizing them as holdings...

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