Preserving the Nationwide National Government Injunction to Stop Illegal Executive Branch Activity

90 Pages Posted: 19 May 2020

See all articles by Doug Rendleman

Doug Rendleman

Washington and Lee University - School of Law

Date Written: April 21, 2020

Abstract

The Trump Administration’s extravagant claims of executive power have focused the federal courts’ attention on separation of powers, judicial review, and equitable jurisdiction to grant broad injunctions that forbid the administration’s violations of the Constitution and federal statutes. Critics question the federal courts’ power to grant broad injunctions that are effective everywhere. These critics maintain, among other things, that the federal courts lack jurisdiction and that broad injunctions improperly affect nonparties and militate against “percolation” of issues in a variety of courts.

This Article examines the critics’ arguments and finds them unconvincing. Accepting the critics’ arguments would rebalance the separation of powers in the executive’s favor and weaken the federal courts’ remedial options. The federal courts have subject matter jurisdiction and equitable jurisdiction to grant nationwide injunctions that forbid executive branch violations. Traditional equitable principles require the executive branch defendant and agents to obey everywhere. Principles of confinement in place and suggested assure courts’ deference to other branches of government. If a broad injunction is necessary to curb executive lawbreaking and extend complete relief to victims, a federal judge may grant a nationwide injunction following a persuasive factual presentation and careful drafting.

Keywords: nationwide injunction, judicial review, separation of powers, contempt of court, subject matter jurisdiction, equitable jurisdiction, class action, Trump, federal courts, executive branch

Suggested Citation

Rendleman, Doug, Preserving the Nationwide National Government Injunction to Stop Illegal Executive Branch Activity (April 21, 2020). University of Colorado Law Review, Vol. 91, No. 3, 2020; Washington & Lee Legal Studies Paper No. 2020-05. Available at SSRN: https://ssrn.com/abstract=3581692

Doug Rendleman (Contact Author)

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States

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