The Current State of Nationwide Injunctions

By Nicholas Williams
Nicholas Williams is a freshman in the College of Arts and Sciences planning on majoring in Political Science.

​The current federal court system was created by the Judiciary Act of 1789. The law created three levels of federal courts: district courts, circuit (or appellate) courts, and the Supreme Court [1]. Today, there are 94 district courts, 13 circuit courts, and one Supreme Court [2], all with the power to issue injunctions - an order that stops a party from continuing a certain action, or, sometimes in the case of the federal government, enforcing a certain policy.

Generally, the decision of a district court judge only applies to the parties in the case [3],  which allows the appeals process to continue without larger changes in the enforcement of federal laws and policies. In the case that a citizen sues the federal government claiming that a law or policy is unconstitutional, a judge can issue an injunction saying that the government cannot enforce said law or policy against the plaintiff. However, judges can also issue nationwide injunctions. In the case that a judge grants a nationwide injunction against the federal government when deeming a policy or law to be unconstitutional, such a ruling entirely prohibits the government from enforcing it. The ruling would thus apply nationwide, as opposed to only applying to the parties in the specific case.

Nationwide injunctions have been occurring with increasing frequency. Although there is no universal agreement as to when the first nationwide injunction was issued, legal scholars do seem to agree that the first nationwide injunction did not occur until the 20th century [4]. Furthermore, there has been a spike in nationwide injunctions under the administration of President Donald Trump. According to Time magazine, as of November 4, 2019, 42 nationwide injunctions had been issued during Mr. Trump’s presidency [5], whereas only 20 nationwide injunctions were issued during former President Barack Obama’s presidency.

The increase in nationwide injunctions has led to a debate among both legal scholars and politicians alike, with many conservatives criticizing their use. The latter argue that they give too much power to a single district court judge and make it harder for the executive branch to enforce policies [6]. Indeed, Supreme Court Justice Clarence Thomas, generally seen as one of the most conservative justices on the Court, if not the most conservative, has publicly argued against their use [7]. In Trump v. Hawaii (2018), in a concurring opinion, Thomas argued that a congressional statute is needed to allow judges to issue nationwide injunctions, and even then, their use may still grant judges a large amount of power that is not consistent with Article III of the Constitution. He also argued that nationwide injunctions encourage plaintiffs to find judges who are sympathetic to their cause, as said judge has the full power to halt enforcement of a law or policy that the plaintiff dislikes, without any additional support.

One consequence of the rise in nationwide injunctions is that the federal government has increasingly been asking the Supreme Court for emergency relief after district court judges issue nationwide injunctions. When the Court grants such a request, it lifts the nationwide injunction while allowing the case to play out among the lower courts. The rise of nationwide injunctions during Mr. Trump’s presidency is correlated with an increasing number of requests by the solicitor general for the Supreme Court to grant immediate relief from nationwide injunctions [8], seemingly because the Trump administration sees the Supreme Court as more sympathetic to its policies than many district court judges are. In other cases, the Trump administration has asked the Supreme Court to issue and decide the legality of an opinion after the district court judge issues an opinion, skipping the circuit courts altogether.

Some may wonder why a judge would not immediately halt the enforcement of a law or executive policy that she found unconstitutional. Two recent cases at the district court level, in which the judges opted to not issue nationwide injunctions, show why their use can be problematic. In National Coalition for Men v. Selective Service System, a judge in the Southern District of Texas found that the all-male draft is unconstitutional [9]. However, the judge only issued an opinion stating that he found it to be unconstitutional, without ordering the Selective Service to cease enforcement of the all-male draft. If a nationwide injunction had been issued, then the Selective Service either would have had to stop compelling men to register for the Selective Service or require women to do so as well. The case is currently pending before the Fifth Circuit Court of Appeals [10].

In a separate case, Texas v. United States, a judge in the Northern District of Texas ruled that the Affordable Care Act, also known as Obamacare, is unconstitutional [11]. Rather than issue an immediate nationwide injunction, thus creating a state of chaos in health insurance markets, the judge decided to allow the law to continue to be enforced. The case is currently before the same judge, after the Fifth Circuit Court of Appeals agreed that the individual mandate is now unconstitutional, but remanded the case back to the district court to decide whether all of the law needed to be invalidated [12]. Overall, nationwide injunctions seem to be the result of America’s current hyper-polarized politics. Indeed, as Lee Durtman argues in The Atlantic, divides between the president and Congress today do not lead to compromise, as the Founders intended, but rather “congressional stonewalling” and increased “executive authority [13].” Because an increasing amount of policy is formulated by the executive branch, opponents of such policy take their case to the courts to try to stop its implementation. As more policy is contested in the court system, judges have had more opportunities to issue nationwide injunctions against the federal government, and many have clearly been taking that opportunity.

Clarity on the issue of nationwide injunctions could come from Congress, in the form of a statute or constitutional amendment either expressly permitting or forbidding the issuance of nationwide injunctions, but this seems unlikely. For now, it seems like the legal system will have to continue to adjust to the increase in nationwide injunctions, with lawyers opposed to executive policies constantly trying to block their implementation in lower courts. This is the new reality, even if the 1st Congress did not foresee the rise and proliferation of nationwide injunctions when writing the Judiciary Act of 1789.

​​​​​The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
[1] “Judiciary Act of 1789.” Encyclopedia Britannica. Accessed February 13, 2020. https://www.britannica.com/topic/Judiciary-Act-of-1789
[2] “Introduction To The Federal Court System.” United States Department of Justice. Accessed February 13, 2020. https://www.justice.gov/usao/justice-101/federal-courts
[3] Jeffrey, Rosen. “When Should Judges Issue Nationwide Injunctions.” National Constitution Center. Accessed February 13, 2020. https://constitutioncenter.org/interactive-constitution/podcast/when-should-judges-issue-nationwide-injunctions
[4] Frost, Amanda. “Academic highlight: The debate over nationwide injunctions.” SCOTUSblog. Accessed February 13, 2020. https://www.scotusblog.com/2018/02/academic-highlight-debate-nationwide-injunctions/
[5] Berenson, Tessa. “Inside the Trump Administration’s Fight to End Nationwide Injunctions.” Time Magazine. Accessed February 13, 2020. https://time.com/5717541/nationwide-injunctions-trump-administration/
[6] “Nationwide Injunctions from District Courts.” Senate Republican Policy Committee. Accessed February 13, 2020. https://www.rpc.senate.gov/policy-papers/nationwide-injunctions-from-district-courts
[7] Trump v. Hawaii, 585 U.S. 138 (2018). https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf
[8] de Vogue, Ariane. “The Supreme Court, nationwide injunctions and leap frogging the lower courts.” CNN. Accessed February 13, 2020. https://www.cnn.com/2019/09/13/politics/supreme-court-nationwide-injunctions/index.html
[9] National Coalition for Men v. Selective Service System, 4:16-cv-03362 (S.D. Tex. 2019). https://www.documentcloud.org/documents/5747780-190224-SELECTIVE-SERVICE-DECISION-Full.html
[10] CIRCUIT COURT CASE National Coalition for Men v. Selective Service System, No. 19-10011 (5th Cir. 2020). http://www.ca5.uscourts.gov/clerk/calendar/2003/32.tul.htm
[11] CIRCUIT COURT CASE Texas v. United States, 4:18-cv-00167 (N.D. Tex. 2018). https://www.documentcloud.org/documents/5629711-Texas-v-US-Partial-Summary-Judgment.html
[12] Luthi, Susannah. “Supreme Court won’t fast-track Obamacare case.” Politico. Accessed February 13, 2020. https://www.politico.com/news/2020/01/21/supreme-court-wont-review-obamacare-lawsuit-before-the-election-101356
[13] Drutman, Lee. “America Is Now the Divided Republic the Framers Feared.” The Atlantic. Accessed February 25, 2020. https://www.theatlantic.com/ideas/archive/2020/01/two-party-system-broke-constitution/604213/

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