'Nationwide' Injunctions are Really 'Universal' Injunctions and They Are Never Appropriate

52 Pages Posted: 17 Jan 2018 Last revised: 8 May 2018

Howard Wasserman

Florida International University (FIU) - College of Law

Multiple version iconThere are 2 versions of this paper

Date Written: January 16, 2018

Abstract

Federal district courts are routinely issuing broad injunctions prohibiting the federal government from enforcing constitutionally invalid laws, regulations, and policies on immigration and immigration-adjacent issues. Styled “nationwide injunctions,” they prohibit enforcement of the challenges laws not only against the named plaintiffs, but against all people and entities everywhere.

The first problem with these injunctions is one of nomenclature. “Nationwide” suggests something about the “where” of the injunction, the geographic scope in which it protects. The better term is “universal injunction,” which captures the real controversy over the “who” of the injunction, as courts purport to protect the universe of all people who might be subject to the challenged law. The second problem is scope. By any name, courts should not issue injunctions protecting beyond the plaintiffs to the case. An injunction in a constitutional case should protect the plaintiffs from government enforcement of the invalid law against them; it should not prohibit the government from enforcing the law against the universe of non-parties to the litigation.

Keywords: constitutional, litigation, remedies, injunctions, immigration, judicial review

Suggested Citation

Wasserman, Howard, 'Nationwide' Injunctions are Really 'Universal' Injunctions and They Are Never Appropriate (January 16, 2018). Lewis & Clark Law Review, Vol. 22, 2018; Florida International University Legal Studies Research Paper No. 18-01. Available at SSRN: https://ssrn.com/abstract=3103017

Howard Wasserman (Contact Author)

Florida International University (FIU) - College of Law ( email )

University Park, DB 2065
Miami, FL 33199
United States
305-348-7482 (Phone)

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