Nationwide Injunctions Are a Problem

I used to think this was just a conservative hobbyhorse. But no, it has become too easy to find a compliant federal judge and game the system

Notre Dame Law Professor Samuel Bray, a former colleague of conservative Supreme Court Justice Amy Coney Barrett and a member of the libertarian-conservative website the Volokh Conspiracy, has been complaining for years about the “nationwide injunction”. This was an issue that very few people thought about and the legal community mostly took for granted, but he made the point that it is pretty weird that you could go into any random federal district court and obtain a court order that binds everyone in the entire country.

When Prof. Bray first started writing about nationwide injunctions, I dismissed it, as I assume many others did, as simply one of those creative conservative critiques of the law that comes up every once in awhile, like the pro-life professors who believe the 14th Amendment banned abortion or the people who think the Commerce Clause doesn’t grant Congress any power at all except to set a few rules about trade between the states. There’s a lot of corporate and rich people’s funding behind right wing legal thought, so this sort of “creativity” pops up every once in awhile and most of the time, we can safely ignore it.

But as we moved through the Trump Administration and now into the Biden Administration, I have come to realize that Prof. Bray was right. The nationwide injunction really is a problem.

Here, in a nutshell, is the problem. Let’s say President Steve Smith issues an executive order, because the filibuster prevents Pres. Smith from being able to move legislation to address the matter. Because we now live in a system of hyper-partisan polarization, the opposition party immediately mobilizes and makes it a priority to oppose the executive order. Then, because hyper-partisan polarization means that the federal courts are replete with young, activist judges, they find a judicial district to file in where they have a high chance of drawing a favorable judge. This isn’t that hard, because in a number of places, the local federal court has one or two active judges who are likely to draw the assignment. And then, that judge issues the injunction and the administration is up against highly deferential rules that make it difficult to overturn or stay the injunction.

This has happened over and over again. The latest example is President Biden’s repeal of President Trump’s “Remain in Mexico” policy. Classically, this sort of thing is supposed to be committed to presidential discretion- the immigration statutes grant broad power to the President and his appointees and subordinates to make determinations about who can come into the country. But Republican lawyers who wanted to kill it realized they could file in federal court in Amarillo, Texas, a judicial district with next to no connection with the dispute. (Amarillo is up in the Texas panhandle, hundreds of miles from the Mexican border.) They drew a young judge appointed by the Trump White House, who issued an order that held that President Biden’s repeal of a discretionary immigration policy was “arbitrary and capricious”. (I should mention at this point that the judge also took advantage of work that liberals had done during the Trump administration, overturning President Trump’s attempt to end the DACA program granting quasi-legal status to the Dreamers, who came to the US without papers as children. The liberals won on the same “arbitrary and capricious” theory. This is how the legal system works- the precedents you set are available to the other side.)

Once that order was issued, it applied nationwide, reinstating the Remain in Mexico program not only for immigrants placed in Amarillo and its environs but nationwide. And because injunctions are hard to overturn on appeal (properly- we don’t want the already busy courts of appeals dealing with nothing but emergency appeals from injunctions), the chances of the order surviving were very good, and it did, indeed, survive.

In other words, while it isn’t quite the case that one federal judge is now President of the United States (as one legal commentator put it), it is the case that one federal judge, from a district that has little connection to the dispute, can issue an order that preempts the actions of the President, and that order can be subject to only perfunctory appellate review. And that’s terrible. We need to fix it.

I have been thinking about what the fix might look like, and this is what I came up with. If a litigant seeks a preliminary injunction that does not involve a national policy (law, regulation, executive order, etc.), he or she can just go to the District Court and get it. If a litigant seeks an injunction that just applies to him- or herself, the litigant can also just go to district court. So, for instance, if a potential DACA recipient wanted to challenge the repeal of DACA only as to herself, she could go to the District Court and get an injunction requiring the Trump Administration to let her into DACA.

But, if a litigant seeks an order enjoining a federal policy on a nationwide basis, they can’t select the judge and get that injunction. When such an application is made, it needs to be assigned to a three judge panel: a federal judge randomly selected from the state of filing (so there’s a home-state judge on the panel, but it could be one from Dallas or Houston or El Paso rather than Amarillo), a federal judge randomly selected from another state, and a Court of Appeals judge from the circuit that governs that district (so in this case it would be the 5th Circuit). This means that the plaintiff would be guaranteed at least one judge from his state and maybe two, but would have no way to select the panel or game the system. An order granting or denying the injunction would be appealable only directly to the U.S. Supreme Court, thus, again, preventing lawyers from selecting a circuit with a majority of judges from one party in the hopes that they would intervene and reverse any ruling they did not like.

This system would solve the problem of the nationwide injunction. It would prevent the forum shopping, and it would ensure that no single federal judge has the power to overturn the judgment of the President, the Congress, or even both.