In Defense of Nationwide Injunctions
UVA Law Faculty Affiliations
With increasing frequency, courts are issuing nationwide injunctions barring the executive from enforcing federal laws and policies against anyone, not just the plaintiffs in the case before them. Nationwide injunctions halted President Obama’s initiative granting deferred action to undocumented immigrants and his Department of Education’s interpretive guidance on the treatment of transgender students in public schools. More recently, district courts enjoined President Trump’s travel ban, as well as his administration’s policy of withholding federal funds from “sanctuary cities.” Legal scholars have criticized the practice, Congress is considering legislation to prohibit it, and commentators are calling for the Supreme Court to address it. A consensus is forming that courts should never issue nationwide injunctions, period. Indeed, some scholars contend that federal courts lack the constitutional authority to do so under any circumstances.
This Article provides the first sustained academic defense of nationwide injunctions. In some cases, nationwide injunctions are the only means to provide plaintiffs with complete relief, or to prevent harm to thousands of individuals who cannot quickly bring their own cases before the courts. And sometimes anything short of a nationwide injunction would be impossible to administer. When a district court is asked to pass on the validity of certain types of federal policies with nationwide effects—such as policies affecting the air or water, or the nation’s immigration system—it would be extremely difficult to enjoin application of the policy to some plaintiffs but not others. Furthermore, nothing in the Constitution’s text or structure bars federal courts from issuing a remedy that extends beyond the parties. To the contrary, such injunctions enable federal courts to play their essential role as a check on the political branches.