Nationwide Injunctions' Governance Problems: Forum-Shopping, Politicizing Courts, and Eroding Governance Structures

60 Pages Posted: 6 Jun 2019

See all articles by Ronald A. Cass

Ronald A. Cass

Center for the Rule of Law; Cass & Associates, PC; Boston University School of Law; George Mason University - Antonin Scalia Law School, Faculty

Date Written: May 18, 2019

Abstract

Nationwide injunctions — injunctions extending beyond the immediate parties to litigation and beyond the geographic bounds of the issuing court’s mandate — increasingly are used by lower federal courts to stop, alter, or condition the operation of national government policies. This typically occurs at the request of politically-invested officials and groups and targets politically consequential initiatives.

While a small number of suits present matters and settings for which nationwide injunctive relief is appropriate, federal district court judges have issued nationwide injunctions in situations far beyond that set. Expanded use of nationwide injunctions — especially broad injunctions against the United States — undermines rule-of-law values, threatens the operation of courts as impartial arbiters of disputes over legal rights, erodes the Constitution’s careful separation of functions among the branches of government, and is at odds with basic aspects of the federal judiciary’s design, including its geographic divisions.

Understanding the limited place for nationwide injunctions — where they are appropriate and why, along with what distinguishes the cases where they are not appropriate or even constitutionally permissible — is critical to regulating a practice that portends significant damage to law-making and law-implementing structures and to the carefully cabined role of the federal courts.

Keywords: Injunctions, Judicial Review, Administrative Law, Constitutional Law, Remedies, Political Litigation, Forum-Shopping, Separation of Powers, Article III, Nationwide Injunctions, APA, scope of review

JEL Classification: K0, K1, K19, K23, K39, K40, K41

Suggested Citation

Cass, Ronald A., Nationwide Injunctions' Governance Problems: Forum-Shopping, Politicizing Courts, and Eroding Governance Structures (May 18, 2019). George Mason Law Review, Vol. 27, No. 1, 2020, Available at SSRN: https://ssrn.com/abstract=3390064 or http://dx.doi.org/10.2139/ssrn.3390064

Ronald A. Cass (Contact Author)

Center for the Rule of Law ( email )

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George Mason University - Antonin Scalia Law School, Faculty

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