Bloomberg Law
Feb. 6, 2023, 9:00 AM

It’s Time to Enact a 3-Judge Court Law for National Injunctions

Alan Morrison
Alan Morrison
George Washington University Law School

Both Democratic and Republican administrations will continue to be hit with injunctions that stop some of their programs from being implemented—not just as they affect named plaintiffs—but everyone in the US.

Courts use national injunctions as equitable remedies that restrict federal rollout of a particular policy.

Sometimes those national injunctions are justified, but they often overreach, at least in the nationwide aspect. Courts have struggled to get the problem under control, but the best and most workable solution must come from Congress. Here is why, and what Congress should do.

Supreme Court Role

On several occasions, the US Supreme Court has reviewed cases in which lower courts have sustained national injunctions, generally at the preliminary injunction stage.

In practice, even if the Supreme Court does no more than decide whether the preliminary injunction was warranted, it decides that question for the nation. Therefore, the nationwide scope of the lower court order is effectively moot.

In theory, the court could also opine on the appropriateness of the scope of the order being reviewed, but it has not done so in its recent cases. Any such ruling would come close to an advisory opinion once the court has upheld or set aside the basic order.

Broader Impact

There are some cases when an injunction should protect more than just the named parties. Suppose that an agency like the Environmental Protection Agency sets new emission standards or the Occupational Safety & Health Administration issues a rule requiring certain protections against a hazardous workplace substance.

Even if only a few companies sued in each case, if a court concludes that the agency acted unlawfully, every company similarly affected should have the benefit of that ruling so that the named plaintiffs do not have a competitive advantage over others.

Similarly, when suits were brought to halt the so-called “Muslim ban” issued under the Trump administration, it would have been almost unworkable to limit the beneficiaries of a favorable court decision to a particular district in the state where the case was filed.

Thus, the problem is not that courts should never issue national injunctions, but who should issue them and in what circumstances.

Application in Practice

The problem is not the standard for issuing injunctions, because the law is quite clear that they should be granted only if a plaintiff can “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

The problem is that its application heavily depends on the facts and law in the case and how the judge balances the relevant factors. Some federal judges, often determined by the president who appointed them, tend to favor plaintiffs whose claims align with their political views.

It is equally well-established that savvy lawyers can find plaintiffs who have standing and can properly sue where a favorable judge or judges sit.

In those cases, that kind of forum shopping will substantially increase the likelihood that the plaintiff will obtain a preliminary injunction and that it will be national in scope.

After all, if a single judge concludes that a federal agency acted unlawfully, it is hardly a surprise if the judge decides that no one, not just the named plaintiff, should be subjected to the unlawful rule or order.

Call to Action

Eliminating forum shopping at the district court level is a much larger and perhaps unsolvable problem, but Congress can significantly lessen its effects on national injunctions by enacting a statute—providing that no injunction against a federal agency or officer may benefit any person beyond the named plaintiffs unless it is by a three-judge district court, which includes at least one circuit judge.

Under that statute, a plaintiff seeking relief for others would have to include a request for a three-judge court in the complaint, and the district judge to whom such a case was assigned would have no power on their own to issue any form of injunctive relief beyond the named plaintiff.

The statute should also provide that further review of a grant or denial of either a preliminary or permanent national injunction shall be by a writ of certiorari to the Supreme Court, filed within 30 days of the order to be reviewed.

Until 1976, use of three-judge courts was required to enjoin federal and state statutes, but those challenges were all constitutional. Many Trump and Biden-era cases contain constitutional claims, but usually focus on the legality of the order being challenged under the governing substantive law or as violations of the requirements of the Administrative Procedure Act.

One of the main reasons for the repeal of the prior three-judge court statutes was that further judicial review was by mandatory appeal to the Supreme Court.

This was true even if the constitutional claim was rejected, which required the court to hear many cases where the court’s normal criteria for reviewing a lower court decision were not met.

Under the proposed statute, forum shopping would continue, and opponents of actions by the Biden administration would probably file in the Fifth Circuit, just as those who disagreed with the Trump administration often chose the Ninth Circuit.

The biggest change would be that the law would require two judges to issue an injunction that extended beyond the immediate parties.

This statute would also be consistent with many federal laws that provide for direct review of an agency’s final rule in the courts of appeals, where a stay can be issued only by at least two members of a three-judge panel.

Details need to be worked out, but the first step is to recognize that the Supreme Court will not and cannot solve this problem. Congress must start addressing it directly, hopefully by enacting mandatory three-judge court legislation for national injunctions.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Alan B. Morrison is an associate dean at George Washington University Law School where he teaches civil procedure and constitutional law.