State Standing for Nationwide Injunctions Against the Federal Government

Abstract

Recent years have seen a substantial increase of cases in which states seek, and indeed obtain, nationwide injunctions against the federal government. These cases implicate two complicated questions: first, when a state has standing to sue the federal government, and second, when a nationwide injunction is a proper form of relief. For their part, scholars have mostly addressed these questions separately. In this Essay, I analyze the two questions together. Along the way, I identify drawbacks and benefits of nationwide injunctions, as well as settings where nationwide injunctions may be desirable and undesirable. I present arguments that, although I do not definitively resolve, Article III standing doctrine imposes some limits on the availability of nationwide injunctions. Assuming that to be true, I then argue that, with one possible exception—the setting where only states would have standing to pursue a claim in the first place—states ought to have no greater standing to pursue nationwide injunctions than do private actors.

Keywords: Civil Procedure, Federal Courts,Constitutional Law, Standing, Nationwide Injunctions

JEL Classification: K41