A nationwide injunction is one that applies not only to the specific parties in a case, but also prevents the federal government from enforcing a law, regulation, or policy against any person, anywhere in the United States. Nationwide injunctions are more appropriately termed universal or national injunctions because the important point is not the geographical scope of the injunction but the fact that it binds nonparties to a lawsuit.
An injunction is an usual remedy. Ordinary legal remedies include money damages and are available to a successful plaintiff as a matter of right. Equitable remedies, like injunctions, on the other hand, are much more intrusive.
There is a good argument that universal injunctions are inconsistent with the Constitution because they exceed the Article III powers conferred on federal courts. The “judicial power” is limited to “cases” and “controversies,” meaning the particular claimant and case before the court. Yet universal injunctions extend relief far beyond the parties to a case, to anyone located anywhere in the United States (and sometimes the world).
Everyone loves the party game “Two Truths and a Lie.” Can you identify which of the following statements about universal injunctions is false?
A. For over one hundred and fifty years after the founding, not a single court issued an injunction purporting to bind nonparties to its judgment.
B. Any one of the 1,000 or so active and senior district court judges sitting across the country can single-handedly prevent the federal government from enforcing a law, regulation, or policy against anyone located anywhere in the United States.
C. Universal injunctions are often the only way to provide a plaintiff and persons similarly situated to plaintiffs with relief.
Let’s take these statements one at a time:
A. TRUTH! The Supreme Court has long recognized that remedies like injunctions are only authorized if they existed in the English Court of Chancery at the time of the founding. That system did not contemplate universal injunctions; indeed, it was a cardinal principle that a remedy could bind only the parties to a case. Thus, it is hardly surprising that not a single federal court issued a universal injunction until 1939.
B. TRUTH! There are currently 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 different regional courts of appeal. Thus, plaintiffs have 94 opportunities to secure a nationwide injunction. This is an invitation to plaintiffs to forum shop for a friendly judge thus undermining confidence in the judiciary.
C. LIE! In Federal Rule of Civil Procedure 23(b)(2), Congress provided a class action mechanism for a plaintiff to represent a large group and obtain injunctive relief on behalf of the whole group. Congress authorized class-wide relief, however, only when the plaintiff proved that he or she was sufficiently representative of the class as a whole. To permit universal injunctions is to allow an end-run around the plaintiff-protective conditions imposed by Congress.
Bottom line: As Justice Thomas has noted, “universal injunctions are legally and historically dubious.” They also impose serious costs on the judicial system, inviting plaintiffs to cherry-pick a friendly judge and undermining confidence in a nonpartisan judiciary. When the public sees judges in the blue state of New York enjoining President Trump’s policies, and judges in the red state of Texas enjoining President Obama’s policies, the reputation of the judiciary suffers. Universal injunctions also force judges into making rushed, low-information decisions in high-stakes cases. For more information, check out IWF’s Legal Policy Focus on Nationwide Injunctions.