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Academic highlight: Bray on reforming the national injunction

Should a single district court judge issue a nationwide injunction against the federal government? That question was front and center in the aftermath of the Supreme Court’s tie vote in United States v. Texas, which left in place a nationwide preliminary injunction barring the Obama administration from granting a temporary reprieve from removal to certain unauthorized immigrants. Would-be beneficiaries of President Barack Obama’s initiative have filed lawsuits in Illinois and New York, arguing that the injunction should not apply outside the states that were parties to the lawsuit. The propriety of nationwide injunctions has come up recently in other contexts as well. Over the past few months, district courts have issued nationwide injunctions barring implementation of the Labor Department’s “persuader rule” and the Education Department’s transgender bathroom policy. Did these courts overstep their bounds?

In a new paper, UCLA School of Law professor Samuel Bray examines the history of nationwide injunctions, as well as their costs and benefits. He concludes with a sensible proposal for limiting such injunctions and argues that the Supreme Court has both the power to impose such a rule and the incentive to do so to ensure that legal issues have a chance to percolate in the courts of appeal.

Bray’s research shows that nationwide injunctions have a weak historical pedigree. The conventional wisdom is that federal courts have the power to issue national injunctions because their decisions bind the parties, and thus are not limited by geography. Historically, however, injunctions restrained the defendant’s conduct vis-à-vis the plaintiff, not the world, and Bray has found that nationwide injunctions did not become commonplace until the latter half of the 20th century.

As Bray explains, nationwide injunctions raise a number of concerns: They encourage forum-shopping, as undoubtedly occurred in United States v. Texas (Judge Andrew Hanen was on record in a previous case as critiquing the Obama administration’s immigration policies); they allow one judge to derail a federal program, delaying that program’s implementation for months or years – long enough at times to wait out a change in administration; and they arrest the development of the law – a problem that should particularly concern the Supreme Court, which prefers to hear and decide cases after they have percolated in the lower courts.

Furthermore, federal district courts could issue conflicting nationwide injunctions, leaving the parties (and all citizens) uncertain about what rule to follow. This possibility is particularly worrisome when, as is currently the case, the Supreme Court has an even number of justices, increasing the likelihood that a case asking the court to resolve a conflict between inconsistent injunctions could end in an inconclusive tie. Although Bray thinks that this “doomsday scenario” is unlikely, it is easy to imagine in the wake of United States v. Texas.

Bray notes that nationwide injunctions do have some benefits, such as promoting uniformity. If Hanen had limited the scope of his injunction to the 26 states that challenged the Obama administration’s immigration initiative, the resulting patchwork implementation would have treated similarly-situated people differently depending on where they lived. In addition, the plaintiffs in United States v. Texas argued that a nationwide injunction was necessary to prevent unauthorized immigrants from obtaining protection from removal in states that supported the Obama program and then moving to one of the plaintiff states.

Bray concludes that the costs of nationwide injunctions outweigh these benefits. He proposes a new principle: In cases involving a federal defendant, district courts should be limited to granting a “plaintiff-protective injunction” that controls the defendant’s conduct only with respect to the plaintiff. The Supreme Court or Congress could establish such a rule. Alternatively, the court could adopt narrower rules – such as heightening the standard of review for nationwide injunctions and requiring that district courts draft their own injunctions rather than adopting the plaintiffs’ versions – which would also limit the practice.

Finally, Bray notes that one’s views on nationwide injunctions should not turn on party affiliation or ideological preferences. Today, Texas district courts are issuing nationwide injunctions halting Obama’s initiatives, but in the past, California’s district courts used the same tool against President George W. Bush, and in the future, they may use it against President Donald Trump. The potential for ideological forum-shopping is perhaps the best reason for restricting nationwide injunctions going forward.

Recommended Citation: Amanda Frost, Academic highlight: Bray on reforming the national injunction, SCOTUSblog (Nov. 23, 2016, 2:05 PM),