KEY TAKEAWAYS

The Supreme Court recently reversed nationwide injunctions against new asylum rules and the use of nonemergency funding for the border wall.

Federal district courts have already imposed almost twice as many nationwide injunctions against the Trump administration as against the Obama administration.

According to legal historians, nationwide injunctions have become common only over the past decade.

Partisan district court judges are increasingly issuing nationwide injunctions, causing abrupt changes in federal policy. A nationwide injunction issued by a district court can be appealed to a circuit court and then the Supreme Court, but while it goes through the process it can interrupt or even dictate federal policy for months or years. There are 663 authorized Article 3 district court judgeships across the country. Any one of those judges can issue a nationwide injunction against a federal government action. According to the Justice Department, the Obama administration faced 20 nationwide injunctions over eight years. The Trump administration has already faced nearly 40.

History of Nationwide Injunctions

Major Recent nationwide injunctions

The Supreme Court recently stayed two major nationwide injunctions. First, on July 26 the Supreme Court stayed an injunction from a California federal district court that would have prevented the Trump administration from repurposing appropriated funds to build a border wall. Second, on September 11 the Supreme Court stayed a nationwide injunction against the Trump administration’s new rule requiring asylum seekers who cross the U.S.-Mexico border to apply for asylum in Mexico or another third country before applying in the United States. These decisions did not resolve the underlying lawsuits, but did allow the federal government to move forward with its policies. In addition, on June 26, 2018, the Supreme Court stayed a district court injunction against the Trump administration’s travel ban against people from several nations, which allowed that policy to continue.

Currently there are many other ongoing nationwide injunctions against a variety of federal policies. One that’s still in effect prohibits the use of a question regarding citizenship on the 2020 census. Another currently prohibits the Trump administration from terminating Temporary Protected Status for Haitians. Still another prohibits the administration’s rescission of the Deferred Action for Childhood Arrivals program.

Legal commentators have speculated that the explosion in nationwide injunctions will lead the Supreme Court to impose stricter standards for district court injunctions, something Justice Clarence Thomas has already publicly advocated in his concurrence in the case Trump v. Hawaii.

the evolution of nationwide injunctions

Nationwide injunctions are a recent phenomenon and no statutory or constitutional change explicitly authorized single district courts to enjoin policies on a nationwide basis. The injunction power itself is ancient: Congress created federal district courts and gave them the power to issue injunctions in the Judiciary Act of 1789. Until the mid-20th century, however, courts generally would not “strike down” federal laws or regulations. They would merely observe that a higher law – usually the Constitution – required a different outcome for a particular plaintiff, in keeping with the Constitution’s requirement that they resolve particular cases or controversies. Practically speaking, this meant the judiciary was not deciding whether a law could stay in effect, but whether the particular plaintiff had to follow it. If a federal agency acted unconstitutionally to harm a plaintiff, the courts would order the agency to cease that action. The agency could still enforce the law against anyone else until those people also sued.

In the 1960s and ’70s, courts started to entertain the possibility of nationwide injunctions in cases where efficiency and fairness suggested the need for an immediate, uniform decision. In one case from 1964, the D.C. Circuit upheld a nationwide injunction against a rule establishing a uniform wage in the electrical promoters and generators industry. Allowing one plaintiff to avoid following a rule that all its competitors had to follow seemed unfair, and forcing each competitor to file a lawsuit seemed wasteful.

According to some scholars, the civil rights movement also played a role in the genesis of broad injunctions. District judges had difficulty enforcing desegregation decrees against Southern officials, particularly if their decisions only applied to specific plaintiffs. Becoming a plaintiff in a civil rights action carried great personal risks at that time. Broader injunctions that applied to non-plaintiffs provided a way to grant relief without needing numerous plaintiffs to come forward.

Nevertheless, after the ’70s, it took several decades for nationwide injunctions to become common. Toward the end of the George W. Bush administration, district courts in California began issuing nationwide injunctions against environmental regulations. This kicked off a trend that continued into the Obama administration, when the number of nationwide injunctions increased, affecting several major policies like the Deferred Action for Parents of Americans and Lawful Permanent Residents program. There has been a dramatic further increase in nationwide injunctions during Trump administration. This has led the attorney general and others to call for a review of circumstances in which judges can issue nationwide injunctions.

The Debate over nationwide injunctions

A number of legal commentators, including Democrats, Republicans, Attorney General William Barr, and Justice Thomas, have called for limiting district courts’ use of nationwide injunctions. From a pragmatic perspective, they argue that allowing a single district court judge to effectively decide federal policy leads to dysfunction as agencies must switch policies at the drop of a hat.

Another complaint is that, given the number of district courts, plaintiffs can forum shop to find the most sympathetic judge and obtain a nationwide ruling almost at will. It is no coincidence, these critics assert, that nationwide injunctions against the Bush administration came largely from California, those against the Obama administration came from Texas, and those against the Trump administration largely from courts in California, Hawaii, and Washington.

From a constitutional perspective, opponents of nationwide injunctions argue the Judiciary Act of 1789 could not have granted the power to impose a nationwide injunction because the Constitution only granted our judiciary powers available to English courts of the era. Those courts did not have the power to grant injunctions against the king and only in limited circumstances issued injunctions applying to more than just the specific plaintiff in question.

Other commentators argue that sometimes people in similar situations to the plaintiffs face irreparable harm without a nationwide injunction. They also point to practical difficulties in limited-scope injunctions. In the travel ban case, for example, lifting the travel ban only in one district court’s jurisdiction would have effectively mooted the ban nationwide because the United States does not restrict interstate travel. One possible solution to this is to have plaintiffs seek certification as a class.

The use of more limited injunctions can also lead to different rules taking effect in different jurisdictions, an outcome evident in the Waters of the United States rule and repeal process. Some district courts issued limited territorial injunctions against the 2015 rule; others issued injunctions against various repeal measures. Today the 2015 WOTUS rule applies in 22 states, the District of Columbia, and the U.S. territories, and the pre-2015 rule applies everywhere else. The EPA and Army Corps of Engineers issued their final repeal of the 2015 rule on September 11. It will take effect after 60 days and will harmonize regulations across the country – unless other district courts issue injunctions against it.