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Against National Injunctions

The Trump executive order temporarily barring travelers from 7 countries has once again raised the issue of a single federal district court issuing a nationwide injunction.  This type of injunction was also used against the Obama Administration’s deferred action program (DAPA).  In my view, these type of injunctions are extremely problematic.

Samuel Bray, an expert on equity, has written about the serious problems with these injunctions.  In this short piece, he notes three basic problems.  The first is the problem of forum shopping.  The plaintiff simply chooses an hospitable circuit in which to file the case.  The Ninth Circuit for the Trump executive order, the Fifth Circuit for the Obama action.

This forum shopping is exacerbated by the “assymetry in the effect” of the judicial decision.  As Brey writes, “If a plaintiff seeks a national injunction and loses . . . that decision has no effect on anyone else. Other plaintiffs can keep bringing their own challenges.  But as soon as one federal district judge finds an executive order invalid and enjoins its enforcement across the nation, the injunction binds the defendant everywhere, at least until it is overturned on appeal.  Shop ’til the order drops.

A second problem is that national injunctions “interfere with good decision-making by the federal courts.”  Lower federal court decisions are supposed to percolate, so that the Supreme Court can review a decision made by several different lower courts.  But a national injunction prevents that from happening.

A third problem is that the national injunction “is inconsistent with the authority of the federal courts.”  Courts should decide “particular cases for particular parties,” not “abstract questions for all possible parties.”  Interestingly, it turns out that the national injunction is a modern innovation that “has no basis in the tradition of equity.”  There were no national injunctions for the first 150 years of the federal courts.

Bray does acknowledge that there are some countervailing considerations, but to me it is obvious that the costs of this system greatly outweigh the benefits.

Sadly, national injunctions are another part of a modern system that has allowed the improper exercise of judicial power.  There is nothing wrong with a court protecting people from illegal government action.  But it ought to be done in an orderly and balanced way.  Allowing a single district or circuit court to exercise power over the whole country does not do that but instead distorts the judicial system.

Reader Discussion

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on February 21, 2017 at 10:44:36 am

There are advantages and disadvantages to a national injunction. The advantage is that you don’t have illegal actions being allowed to continue because the cost of every single person litigating the issue individually is too much. Courts are not going to allow class actions of “all citizens” (and there are notice problems with this) so this is a kind of second best.

You also have problems where Texas in Texas v. United States, claiming that the actions of the Federal Government even in other states is causing harm to Texas. This is in some ways a more traditional injunction in that it is stopping one of the parties from harming the other party anywhere.

The other possibility is to have the other circuit court’s accept writs of prohibition to require the district court to limit the order’s application in the other circuit.

Overall I would like to see them limited so that a court only has authority to issue an injunction binding one of the parties as applied to third parties in the current circuit. This means that the district court judge in Seattle can’t decide (with the blessing of the Ninth Circuit) the question for the whole country. Instead, he could only issue the injunction as applied to the specific parties worldwide, but as to third parties only within the circuit court (in this case the Ninth). This would allow the circuit to consider allowing the injunction or not within their jurisdiction. As most Supreme Court cert petitions cannot be accepted (due to limited Supreme Court resources), there is no guarantee that these injunctions will be properly reviewed at that level, unlike at the circuit level. Congress should make this change to the equity jurisdiction of the lower courts.

The other option would be recreating the mandatory review by the Supreme Court in these national injunctions. But I think there was a good reason these were eliminated.

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Image of Devin Watkins
Devin Watkins
on April 20, 2018 at 09:36:33 am

[…] are another matter. As my co-blogger Samuel Bray has noted, there are good reasons to believe that nationwide injunctions are over-used and have been issued too frequently by district courts over the past ten years. Once extremely […]

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Image of [Jonathan H. Adler] Seventh Circuit Upholds Injunction in Sanctuary City Case – Ben Lee
[Jonathan H. Adler] Seventh Circuit Upholds Injunction in Sanctuary City Case – Ben Lee
on April 20, 2018 at 14:14:29 pm

[…] are another matter. As my co-blogger Samuel Bray has noted, there are good reasons to believe that nationwide injunctions are over-used and have been issued too frequently by district courts over the past ten years. Once extremely […]

read full comment
Image of [Jonathan H. Adler] Seventh Circuit Upholds Injunction in Sanctuary City Case – Jehtro Lewis – Blog
[Jonathan H. Adler] Seventh Circuit Upholds Injunction in Sanctuary City Case – Jehtro Lewis – Blog

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.