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

57 Pages Posted: 29 Aug 2018

See all articles by Howard Wasserman

Howard Wasserman

Florida International University (FIU) - College of Law

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Date Written: August 29, 2018

Abstract

Federal district courts routinely issue 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 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 (August 29, 2018). 22 Lewis & Clark L. Rev. 335 (2018); Florida International University Legal Studies Research Paper No. 18-14. Available at SSRN: https://ssrn.com/abstract=3240625

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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