In Defense of Nationwide Injunctions

58 Pages Posted: 6 Feb 2018 Last revised: 4 Mar 2018

Amanda Frost

American University - Washington College of Law

Date Written: January 29, 2018

Abstract

With increasing frequency, courts are issuing nationwide injunctions barring the executive from enforcing federal laws and policies against anyone, not just the plaintiffs in the case before them. Nationwide injunctions halted President Obama’s initiative granting deferred action to undocumented immigrants and his Department of Education’s interpretive guidance on the treatment of transgender students in public schools. More recently, courts have enjoined nationwide President Trump’s travel ban, as well as his Administration’s policy of withholding federal funds from “sanctuary cities.” Legal scholars have criticized the practice, Congress is considering legislation to prohibit it, and commentators are urging the U.S. Supreme Court to address it. A consensus is forming that courts should never issue nationwide injunctions, period. Indeed, some scholars contend that federal courts lack the constitutional authority to do so under any circumstances.

This Article provides the first sustained academic defense of nationwide injunctions. In some cases, nationwide injunctions are the only means to provide plaintiffs with complete relief, or to prevent harm to thousands of individuals similarly situated to the plaintiffs who cannot quickly bring their own cases before the courts. And sometimes anything short of a nationwide injunction would be impossible to administer. When a district court is asked to pass on the validity of a federal policy with nationwide effects—such as one affecting the air or water, or the nation’s immigration policy—it can be extremely difficult to enjoin application of the policy to some plaintiffs but not others. Furthermore, nothing in the Constitution’s text or structure bars federal courts from issuing a remedy that extends beyond the parties. To the contrary, such injunctions enable federal courts to play their essential role as a check on the political branches. Indeed, the recent surge in nationwide injunctions could be seen as a symptom of the real problem—the executive branch’s increasingly common practice of unilaterally making major policy changes outside of the legislative process.

Keywords: nationwide injunction, universal injunction, national injunction, separation of powers, percolation, class actions, Rule 23(b)(2), equitable remedies

Suggested Citation

Frost, Amanda, In Defense of Nationwide Injunctions (January 29, 2018). New York University Law Review, Vol. 93, 2018. Available at SSRN: https://ssrn.com/abstract=3112776

Amanda Frost (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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