The Constitutionality of Nationwide Injunctions

Abstract

Opponents of nationwide injunctions have advanced cogent reasons why courts should be skeptical of this sweeping remedy, but one of the arguments is a red herring: the constitutional objection. This Essay focuses on the narrow question of whether the Article III judicial power prohibits nation-wide injunctions. It doesn’t.

This Essay confronts and dispels the two most plausible arguments that nationwide injunctions run afoul of Article III. First, it shows that standing jurisprudence does not actually speak to the scope-of-remedy questions that nationwide injunctions present. Second, it demonstrates that the Article III judicial power is not narrowly defined in terms of according relief only to the actual parties to a lawsuit. Thereafter, the Essay situates nationwide injunctions within several twentieth century remedial innovations that fundamentally altered how citizens hold government accountable. In short, nationwide injunctions are not remedial anomalies and are consistent with constitutional limits on judicial power.

Keywords: Nationwide Injunctions, Article III, Case or Controversy, Standing, Section 1983, Prophylactic Injunctions, Class Actions