State Standing for Nationwide Injunctions Against the Federal Government

31 Pages Posted: 29 May 2020 Last revised: 9 Jun 2020

Date Written: June 6, 2019

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

Suggested Citation

Nash, Jonathan, State Standing for Nationwide Injunctions Against the Federal Government (June 6, 2019). Notre Dame Law Review, Vol. 94, No. 5, 2019, Emory Legal Studies Research Paper 20-6, Available at SSRN: https://ssrn.com/abstract=3592099

Jonathan Nash (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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