Universal, Not Nationwide, and Never Appropriate: On the Scope of Injunctions in Constitutional Litigation
36 Pages Posted: 17 Jan 2018
Date Written: January 16, 2018
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
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