National Controversy over Nationwide Injunctions

Plaintiffs combatting government actions are increasingly requesting preliminary relief with nationwide injunctions. Such a trend has started stirring debate concerning how appropriate a legal remedy nationwide injunctions are.

Despite their name, nationwide or national injunctions are not defined by geography. Instead, nationwide injunctions are best understood as a court order against the federal government which instructs the government to act or prohibits the government from doing something.

National injunctions differ from typical court orders between two private parties such as a restraining order. With national injunctions, the injunction provides relief to parties beyond those filing briefs or motions in a case.

In other words, an injunction is considered national if it applies to the federal government and affects potential plaintiffs who have not yet entered into a case either as an interested or intervening party or as part of a certified class.

A famous example includes the 2017 litigation surrounding the Trump Administration’s travel ban, in which former President Trump issued a series of executive orders and proclamations prohibiting entry into the United States of individuals from particular regions.

After appellate briefing and decision affirming the District Court’s injunction in the Ninth Circuit, which barred the government from enforcing the travel restriction, the Supreme Court in Trump v. Hawaii (2018) ultimately upheld the President’s position. The Court’s opinion held that it was within the Executive’s authority to restrict travel, pursuant to the Immigration and Nationality Act, under a textual and historical analysis of the statute’s requirements.

A more recent example was the 2021 suit brought against the Biden Administration concerning its Occupational Safety and Health Administration’s (“OSHA”) COVID-19 vaccine mandate. The mandate ordered all private employers with 100 or more employees to require their employees either to vaccinate or provide weekly proof of a negative COVID-19 test and enforced COVID-19 masking.

In this matter, the District Court stayed OSHA’s application of the mandate, effectively serving as a national injunction against enforcement of the rule. When it reached the Supreme Court, the Court in National Federal of Independent Business v. OSHA (2022) ruled that the mandate delegated power that exceeded OSHA’s authority under the Occupational Safety and Health Act of 1970. The Supreme Court determined that OSHA’s prior rule permitting OSHA to regulate occupational employment risks could not extend to the regulation of general public risks, such as contracting the COVID-19 virus.

The Supreme Court agreed with the District Court’s initial stay of the vaccine mandate prior to reversal in the Sixth Circuit.

There are conflicting accounts about when the practice of nationwide injunctions began. Some scholars recognize that injunctions affecting non-parties have existed for some time. These scholars cite various state and federal cases decided as far back as 1913, and even 1890 in which the high Court issued rulings affirming the scope of an injunction or not taking issue with the scope of an injunction.

Others, such as Alan M. Trammell of the Washington and Lee University School of Law, believe the practice is fully constitutional, falling under the Court’s broad flexibility to correct past injustices. The claim is that judicial standing, which requires a plaintiff to demonstrate harm resulting from a defendant’s actions, is separable from the scope of remedy which could encompass national injunctions.

Samuel L. Bray at the Notre Dame Law School argues that there is no historical foundation for national injunctions, claiming that the earliest English examples of suits involving multiple plaintiffs and defendants more closely resemble modern class action lawsuits, an understanding which continued through American jurisprudence.

Scholars who follow Bray’s reasoning assert that no national injunctions existed in the United States until about the 1960s. They cite a series of decisions which paved the way for national injunctions and argue that those decisions are an unintended result of the Founder’s move away from a single “Chancellor” or decisionmaker system derived from English tribunals to a multi-decisionmaker federal court system.

Despite disagreements on the particular details, however, the consensus appears to indicate that no national injunctions as we now understand them occurred at the time of or in the years immediately following the founding of the Republic.

Nationwide Injunctions create complications regardless of one’s stance as to the history. They raise questions regarding non-party standing before a court, particularly in cases where the injunction is requested as emergency relief in the initial pleading stage of litigation when it would otherwise occur following a complete adjudication of the issues.

The injunctions encourage forum shopping and politicization of the courts. Litigants pursue cases in different jurisdictions, venues, and circuits that they believe will give them the best chance of succeeding in a facial challenge.

Nationwide injunctions remain controversial. For example, Congress has held several committee hearings in which some recommendations go so far as to suggest prohibiting the practice entirely. The Justice Department under the Trump administration famously issued a memorandum condemning the practice. Attorney General Barr himself later reiterated the Department’s stance against national injunctions.

Legal commentators have also offered suggestions, such as recommending that any injunctive relief applies only within the regional confines of a particular circuit. Restricting the injunctive relief would tend to increase the likelihood of circuit splits. Given such circuit splits, the Supreme Court would be more inclined to grant Certiorari under Rule 10 and hear the case. In doing so, the Court would benefit from working with a full briefing, record, and multiple lower court decisions.

Despite nationwide injunctions becoming more commonplace in the judicial sphere, their constitutionality is increasingly contentious. What is clear is that the practice’s legitimacy relies exclusively upon precedential and practical considerations rather than constitutional or statutory authority. As to their appropriateness, the long-standing doctrine of standing will tower as the most significant impediment to overcome.