Nationwide Injunctions and Nationwide Harm
7 Pages Posted: 18 Jan 2018
Date Written: December 2017
On January 27, 2017, President Donald Trump issued an executive order barring millions of people from entering the country. The order went into effect immediately. It stranded hundreds of people in transit and led to the cancellation of 60,000 valid visas. People were being put back on planes and about to be deported, and only a small fraction could make it into court in time. But within days, two judges issued nationwide injunctions blocking the order. Without them, most affected people would have been deported, lost their visas, and been kept from work, family, and study, all pursuant to a policy that the government ultimately chose not to defend. When a policy threatens widespread irreparable harm, most people will never be fully protected without broad preliminary relief.
Professor Samuel L. Bray takes up the propriety of nationwide injunctions in Multiple Chancellors: Reforming the National Injunction. His Article is a major contribution to an issue that deserves more reflection than it has received. He traces injunctive relief from its origins in the English Chancery, which had a single chancellor, to its use in the federal courts, which are of course divided into circuits and districts. He explains how courts in the second half of the twentieth century began issuing nationwide injunctions with increasing frequency.
In Bray’s account, that trend has bred a host of problems. He focuses on four in particular: First, nationwide injunctions encourage plaintiffs to shop for a favorable forum in order to obtain an injunction that applies everywhere. Second, the nationwide injunction prevents legal questions from percolating up through multiple circuits. Third, nationwide remedies make conflicting injunctions more likely. And fourth, they seem in tension with other doctrines in the law. Bray’s proposed solution is simple: courts should grant only the relief necessary to protect the plaintiffs from the defendant, and should not constrain the defendant’s conduct toward others. As he puts it, in all cases, “injunctions should not protect nonparties.”
Many of Bray’s criticisms of nationwide injunctions are well founded, if debatable, as we discuss below. But we found two parts of his analysis incomplete. First, in weighing the costs and benefits of nationwide injunctions, Bray gives short shrift to their role in preventing widespread harm, even though that is probably their most important function. Indeed, the Supreme Court has recently suggested that sometimes “the equitable balance” in a case will favor extending injunctive relief to “parties similarly situated to” the plaintiffs. It remains for others to explore where that value outweighs the downsides Bray highlights. Second, Bray’s plaintiffs-only proposal extends far beyond the problems it is meant to solve. Bray does not grapple with that mismatch, nor does he account for the amount of existing judicial practice that his proposal would upend. Future work should consider less radical alternatives, which would allow broad injunctions when necessary to prevent real-world injuries, but would otherwise preserve opportunities for percolation across multiple chancellors.
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