STATE STANDING FOR NATIONWIDE INJUNCTIONS AGAINST THE FEDERAL GOVERNMENT.

• Author: Nash, Jonathan Remy
• Position: Notre Dame Law Review's 2019 Federal Courts, Practice, and Procedure Symposium on State Standing

INTRODUCTION 1986 I. OVERVIEW OF NATIONWIDE INJUNCTIONS 1988 A. What Are Nationwide Injunctions? 1988 B. Growth in Nationwide Injunctions in Suits Brought by 1990 States Against the Federal Government II. POSITIVES AND NEGATIVES OF NATIONWIDE INJUNCTIONS 1992 A. Drawbacks 1992 B. Benefits 1994 C. Settings Where Nationwide Injunctions Might Be Desirable 1997 1. Hierarchically Desirable 1997 2. Legally Desirable 2000 3. Desirable Because of Concerns of Equitability and 2001 Legitimacy D. A Setting Where Nationwide Injunctions Might Be 2002 Undesirable: Where the Benefits of Percolation Outweigh the Need for Speedy Resolution III. STANDING, STATES, AND NATIONWIDE INJUNCTIONS 2004 A. A Brief Overview of Standing 2005 1. Standing in General 2005 2. Standing for States 2006 B. A Truncated Examination of Whether Standing Might Limit 2007 the Availability of Nationwide Injunctions C. Examining the Case for Special State Standing to Pursue 2011 Nationwide Injunctions Against the Federal Government 1. State Standing to Pursue Nationwide Injunctions 2011 Against the Federal Government for Injuries as to Which Article III Does Not Otherwise Allow for Nationwide Injunctions 2. State Standing to Pursue Nationwide Injunctions 2013 Where Congress Has Rein to Make Nationwide Injunctions Available (or Unavailable) CONCLUSION 2013 INTRODUCTION

Recent years have seen a substantial increase in the number of cases in which states sue the federal government seeking nationwide injunctions, and in which courts award such relief. (1) Cases where states assert standing to obtain nationwide injunctions against the federal government lie at the intersection of two areas of standing law that are already fairly muddled: the question of when a state has standing to sue the federal government, and the question of when a plaintiff has standing to obtain a nationwide injunction against a defendant.

Until this issue of the Notre Dame Law Review, the existing literature has taken up each question separately. (2) Some commentators have devoted themselves to examinations of when states have standing to sue the federal government. Others have focused on the question of the availability of nationwide injunctions in federal court; some of these commentators discuss the role of standing.

My ultimate task here is a narrower one: I wish to consider the extent to which Article III standing permits states to pursue nationwide injunctions against the federal government. (3) In particular, I am interested in how state standing to pursue nationwide injunctions against the federal government may differ from the analogous standing of nonstate plaintiffs.

Even if my ultimate task is narrow, the project has broader implications. In reaching the final focused questions, my analysis addresses larger questions, such as when nationwide injunctions may be proper or improper (joining existing commentary on the subject) and the extent to which Article III standing poses any limitation on the availability of nationwide injunctions (outside of the context of plaintiff states and the federal government as defendant).

In the end, I argue that--with one possible exception: settings where no nonstate plaintiff has standing to sue in the first place--standing should provide plaintiff states with no greater access to nationwide injunctions against the federal government. Thus, if a nonstate plaintiff would have standing to pursue a cause of action but not have standing to pursue a nationwide injunction in connection therewith, then neither should a state plaintiff. If by contrast a nonstate plaintiff would have standing to pursue a nationwide injunction, then a state plaintiff would have the same opportunity--no greater--to pursue a nationwide injunction. And to the extent that (as I argue below is at least a possibility) Article III precludes federal courts from ever fashioning nationwide injunctions for nonstate plaintiffs against the federal government, the same ought to hold for state plaintiffs.

Along the way, I address the question of whether Article III standing poses any obstacle to the award by federal courts of nationwide injunctions. I take no ultimate position on that question, but I do highlight some arguments in favor of Article III limits on the availability of nationwide injunctions. I also tackle arguments that nationwide injunctions are (beyond the context of state plaintiffs) desirable and undesirable, making the case that nationwide injunctions may sometimes be hierarchically desirable--that is, desirable in light of the judicial hierarchy--and equitably desirable--that is, desirable in settings where the absence of a nationwide injunction would be unseemly.

Part I of this Essay provides an overview of nationwide injunctions. It addresses the proper definition of the term "nationwide injunction." It then describes how, and why, nationwide injunctions, and in particular nationwide injunctions in favor of states against the federal government, have become increasingly common in recent years.

Part II highlights positives and negatives of nationwide injunctions. It discusses benefits and drawbacks of the practice. It then identifies settings in which nationwide injunctions may be more, or less, desirable.

Part III turns to the question of state standing and nationwide injunctions. After briefly defending the notion that standing (as opposed to other devices) might properly play some role in policing the availability of nationwide injunctions, Part IV begins with a brief overview of standing in general. It then considers the specific setting of state standing.

1. OVERVIEW OF NATIONWIDE INJUNCTIONS

   In this Part, I first discuss the surprisingly disputed definition of the nationwide injunction. I then turn to an examination of the reasons that nationwide injunctions, especially as sought by states against the federal government, have come to the fore in recent years.

   1. What Are Nationwide Injunctions?

      Some of the confusion surrounding nationwide injunctions is a result of disagreement--whether explicit or implicit--over what the term actually connotes. The prevalent definition of a nationwide injunction is an injunction that is enforceable by nonparties as well as parties to the lawsuit. (4) For this reason, some suggest the alternate appellation, "universal injunction." (5) Other commentators understand the modifier "nationwide" to refer to geographic scope. (6)

      Based on these distinctions, we may conceive of three variants of injunctions that will be relevant to our analysis. It is well to consider each of these against a baseline "plain vanilla" injunction that can be enforced against the defendant only by the plaintiffs on the claim, and only within the geographic jurisdictional confines of the issuing court.

      The first variant is an injunction that is (like our baseline injunction) enforceable only by the plaintiffs on the claim but is enforceable beyond the jurisdictional confines of the issuing court. An example would be an injunction issued by a district court that is enforceable by the plaintiffs beyond the district court's jurisdictional limit, perhaps to the territorial limit of the state in which the district court sits (a "statewide plaintiff-focused injunction"), (7) to the geographic limit of the federal circuit in which the district lies (a "circuit-wide plaintiff-focused injunction"), or--in the extreme--throughout the United States (a "nationwide plaintiff-focused injunction"). (8)

      The second variant is an injunction that (like our baseline injunction) is enforceable against the defendant only within the jurisdictional confines of the issuing court but is enforceable by nonparties as well as parties. I shall refer to this variant as a "court-wide nonparty injunction". Court-wide nonparty injunctions go beyond traditional injunctions, which do not ensconce enforcement power in nonparties.

      The third variant differs from our baseline injunction along both axes. It is an injunction that is enforceable by nonparties as well as parties beyond the jurisdictional limits of the issuing court (depending upon the jurisdictional limit on the injunction, a "statewide nonparty injunction," a "circuit-wide nonparty injunction," or a "nationwide nonparty injunction"). In keeping with the more common usage, in this Essay, I often refer to "nationwide nonparty injunctions" simply as "nationwide injunctions." Nationwide nonparty injunctions are more controversial than court-wide nonparty injunctions; they go beyond traditional injunctions both in terms of vesting enforcement in nonparties, and in terms of asserting national injunctive scope.

   2. Growth in Nationwide Injunctions in Suits Brought by States Against the Federal Government

      Samuel Bray has documented the sudden and quick rise in the issuance of nationwide injunctions in federal cases writ large. (9) The same phenomenon is observable in cases filed by states against the federal government. (10) Consider, for example, the setting of state challenges to federal spending conditions. In the 1980s, the State of South Dakota (ultimately unsuccessfully (11)) challenged the legality of federal legislation that restricted the distribution of federal highway funds to states that permitted alcohol sales to those under the age of twenty-one. (12) The State plaintiff sought only declaratory relief. (13) In contrast, when the State of California sought to challenge the Trump administration's efforts to defund sanctuary states, the State expressly sought injunctive relief. (14) And many federal courts have awarded nationwide injunctions in cases brought by localities challenging sanctuary city defunding. (15)

      Several factors seem to have come together to hasten the increase in nationwide injunctions. (16) One is almost certainly the growth in public law litigation. (17) The emphasis on public law litigation has served to increase the role and importance of injunctive relief, (18) and in particular injunctive...