The legality and wisdom of nationwide injunctions against federal agencies is a hot topic. Attorney General William Barr has frequently spoken against them; law professors are writing on both sides; the Administrative Conference of the U.S. and others sponsored a forum; and the Senate Judiciary Committee held a hearing about them Feb. 25.
There’s considerable hope that the U.S. Supreme Court will resolve the issue, but that seems unlikely for several reasons. Moreover, no matter what it rules, there is likely to be room for Congress to step in if it does not fully embrace the court’s conclusion.
The issuance of nationwide injunctions is not new in the Trump administration, but the number of cases has increased significantly. Because most of the challenged actions affect large numbers of individuals, as well as many states and cities, cases can legitimately be filed in many district courts.
Often, the new rules or orders are made effectively immediately, and so preliminary injunctions are sought in almost every case. If the judge concludes that the plaintiffs are likely to succeed on the merits, and the harms to the plaintiffs are significant, the judge is likely to grant preliminary relief to the named plaintiffs.
Nationwide Relief v. Named Plaintiffs
That is not where the controversy lies. Rather, the plaintiffs argue that, because the order challenged applies to everyone, relief should not be limited to these plaintiffs, but should always apply nationwide.
In addition, in cases like the travel ban (initially implemented in 2017), where the plaintiffs were located in the forum district, but those affected would arrive there by many routes, the injunction would not be effective if it protected only those plaintiffs.
On the other side, the Trump administration takes the opposite position: courts should never issue any injunctions except to protect named plaintiffs and surely not those that have national impact. In addition, in every case, the federal government continues to defend the underlying action which is a further reason why they oppose nationwide relief.
No one has argued that any court other than the Supreme Court can decide whether the answer under current law is always, never, or sometimes. In fact, this term the court will decide two cases in which nationwide injunctions were issued, but in both of them the court is likely to decide the merits of the underlying action being challenged.
One case involves a challenge to the legality of the Trump administration’s contraceptive mandate. Arguments in Trump v. Pennsylvania are scheduled for April.
The other case involves the fate of the Obama-era DACA program that extended immigration protections. The court heard arguments in Homeland Security v. Regents of the University of California Nov. 12.
The Supreme Court’s rulings, which will apply to everyone, will be either to uphold or set aside that action—and the issue of whether the district judge was correct in issuing a broad preliminary injunction will be moot.
In theory, the court could still say something, by way of dictum, on that issue, but it would be significantly affected by the court’s view on the merits. But even that would not likely resolve the issue if the answer is “sometimes,” because the answer would then depend on the circumstances, and the court would have before it only the facts of that case—and even then they would be from the perspective of the Supreme Court, not as the district judge saw them.
Room for Congressional Actions
Nor is whatever the court rules likely to be final and not subject to modification by Congress through statutory changes. For example, the Justice Department told the Supreme Court in Department of Homeland Security v. New York that the answer would be different if the case were brought as a class action. That concession is significant because it recognizes that some procedural devices could lessen the adverse impacts of national injunctions, thereby opening the door for creative legislative solutions.
In addition, the same issue also arises when the action being challenged is an agency rule imposing regulations on business, and the regulated industry wants a temporary stay of the effectiveness of the rule—another label for a nationwide injunction. It is hard to imagine that business interests would sit by, and not go to Congress, if the answer were “never.”
Moreover, if the answer from the court is “never,” and as a result there are 20 or 50 lawsuits in different districts over the same agency action, will the public and the federal judiciary not press for some middle ground on the scope of these injunctions?
There are a number of solutions available to Congress to reduce some of what the Trump administration argues are downsides to nationwide injunctions. Congress could create exclusive jurisdiction in a particular court, as it has done under some laws, or it could require three judge courts if the plaintiff seeks an expansive injunction.
It could also require a final decision by the district judge before a national injunction could issue, or it could require a showing of greater necessity to expand the relief beyond the named plaintiffs.
Other solutions are also possible, but the main point is that there are flexible and realistic options beyond leaving the issue to the Supreme Court, which may never decide the issue or only do so in a narrow way that will not provide meaningful guidance to district judges when different cases are before them.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Alan B. Morrison is the Lerner Family Associate Dean at George Washington University Law School where he teaches constitutional law.