Nationwide Injunctions' Governance Problems: Forum Shopping, Politicizing Courts, and Eroding Constitutional Structure

Category: Print Issues

Nationwide Injunctions' Governance Problems: Forum Shopping, Politicizing Courts, and Eroding Constitutional Structure

Ronald A. Cass

Volume 27

, Issue 1

27 GEO. MASON L. REV. 29 (2019)

Introduction

Scholars have focused extraordinary attention on issues surrounding the availability and terms of judicial review for legislative and administrative actions—what reader of law journals hasn’t seen plenty about Marbury¹Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).. and Chevron?²—but the academy has paid far less attention to the choice of remedies for actions found to be unlawful.³ Yet remedies also can have dramatic implications for issues associated with debates over judicial review.

This is plainly true for the increasingly common practice of lower federal courts issuing “nationwide injunctions” that stop, alter, or condition the operation of national government policies. These injunctions (sometimes referred to as “national” or “universal” injunctions) address government actions, extend beyond the geographic bounds of the issuing court’s mandate, and directly control action respecting persons and entities beyond the immediate parties to the litigation giving rise to the injunctions. In these respects, nationwide injunctions stand in sharp contrast to the geographic divisions among federal courts and also to long-respected restrictions on the parties to whom (and in whose favor) legal remedies apply. While a small number of suits present matters and settings for which nationwide injunctive relief is appropriate, federal district court judges have begun using these injunctions in situations far beyond that set. High-profile litigation over immigration issues in particular has focused attention on this remedy.⁴

Both the reasons for seeking these injunctions and the bases for concern over them should be evident. The remedy’s attraction to opponents of government policy is its capacity to halt implementation of a policy or specific objectionable features everywhere, not just against a limited set of parties, and not just in the locale where the opponents reside or work or where the officials responsible for its adoption are found. Those features of nationwide injunctions do not make the injunctions inappropriate in all circumstances.⁵ Yet, expanded use of nationwide injunctions in a wide array of settings—indeed, the vast majority of settings in which argument over their propriety has been joined—undermines rule of law values, threatens the operation of courts as impartial arbiters of disputes over legal rights, and erodes the Constitution’s careful separation of functions among the branches of government.

Given the problems associated with nationwide injunctions, which are serious and endemic to this remedy’s expanding use, courts and Congress should reassess the grounds needed to justify them. Recognizing and reversing the trend toward routine use of nationwide injunctions in disputes outside the special cases where they are at least arguably proper is critical to preserving the constitutional order, respecting the structure of the federal courts, and sustaining long-accepted practices respecting equitable remedies.

This Article first reviews the implications of constitutional structure—especially the separation of powers and restraints on judicial power—and historical limitations on equitable remedies for broad, nationwide injunctive relief. In Part II, the Article recounts major developments in nationwide judging, before turning in Parts III and IV to problems of forum shopping and politicizing courts. Part V analyzes the conflict between nationwide injunctions and both constitutional design and the design of the federal judiciary. It also addresses the peculiar use of the overarching legal framework governing federal administrative law as a basis for nationwide injunctions.

I. Federal Structure and Traditional Limits on Remedies

Analyzing the use of nationwide injunctions should begin with the legal—especially the constitutional—framework within which judicial review of legislative mandates and administrative decisions takes place. This framework marks out important sources of constraint that inform parameters of both sorts of limitations on ordinary judicial remedies and that have supported the traditionally modest scope for federal courts’ injunctions.

A. Constitutional Structure: Separation and Constraint

The original understanding of American governance was that basic policy decisions are made by Congress—through a process designed to assure both deliberation and broad acceptance of those choices—and implemented by the Executive (that is, the President and officials working under his direction).⁶ Courts, which make retrospective decisions applying law to particular facts, were deliberately insulated from political influence.⁷

Critical parts of judges’ mandates were assuring predictability and legitimacy. Judges were expected to assure that legal rules are not matters of surprise, turning on peculiar applications by particular interpreters, because everyone should be able to live by rules known or knowable in advance.⁸ Judges were expected to address issues of constitutionality and other questions of legality to assure the rules that bind citizens—rules that courts apply to the particular cases before them—are properly adopted and applied, come from legitimate sources of binding authority and conform to superior sources of law.⁹ Judges, thus, wield the power to declare administrative actions illegal and may even declare laws unconstitutional; they possess this power, however, only as an incident of deciding concrete cases brought to them by individual parties whose own legal rights are at stake.¹⁰

Alexis de Tocqueville, reflecting on what he had seen in his travels in America, contrasted the problems observed in France from a too-political magistracy with his view of the American model:

The Americans have retained all the ordinary characteristics of judicial authority, and have carefully restricted its action to the ordinary circle of its functions. . . . Whenever a law which the judge holds to be unconstitutional is argued in a tribunal of the United States, he may refuse to admit it as a rule . . . . [F]rom the time that a judge has refused to apply any given law in a case, that law loses a portion of its moral cogency. The persons to whose interests it is prejudicial, learn that means exist of evading its authority; and similar suits are multiplied, until it becomes powerless. . . . If the judge had been empowered to contest the laws on the ground of theoretical generalities; if he had been enabled to open an attack or to pass a censure on the legislator, he would have played a prominent part in the political sphere; and as the champion or the antagonist of a party, he would have arrayed the hostile passions of the nation in the conflict. But when a judge contests a law, applied to some particular case in an obscure proceeding, the importance of his attack is concealed from the public gaze; his decision bears upon the interest of an individual, and if the law is slighted, it is only collaterally.¹¹

As de Tocqueville notes, the power given to judges was not a roving commission to supervise and correct the acts of other governmental officers. Instead, it was the power to recognize the priority of legal rules and to decide not to apply rules in a given case if those rules violated higher laws (those deemed supreme by the document that governed our legal order).¹² It was not a general power to pass on the legality of laws, only a power to determine the law applicable to a particular case;¹³ and because each judge was limited to deciding only that case, other individuals in similar situations would need to ask other judges to reach the same conclusion in cases specifically addressing their own particular claims.¹⁴ While the first-deciding judge’s ruling may set a pattern for later decisions, the initial decision would not bind others. The authority to declare a law unconstitutional, thus, was both powerful and limited.

The explicit precept behind this arrangement was that judges would interpret and apply legal rules in neutral fashion but would not intrude into the realm of policy-making reserved to the political branches (and reserved as well to decision by constitutionally prescribed means). Despite apprehensions of some Anti-Federalists, who were especially fearful of potential exercise of equitable power by a federal judiciary,¹⁵ those who framed the Constitution, and were party to its early implementation, were confident that judges would not pose a threat to the operation of the other branches of government.¹⁶ After all, judges were to be insulated from direct application of political forces, as their decisions require reasoned explanation and grounding in text and precedent, and judges’ interpretations of law also would be framed by the specific, limited setting for which those interpretations would apply.

B. Federal Equitable Remedies: Limited Focus, Limited Reach

Those limitations on the operation of the federal judiciary generally have functioned in the manner supposed by the founding generation. Though frequently criticized for particular decisions, the federal court system has been characterized (certainly for the first century and a half of its existence) by relative modesty in exercising its remedial powers. That tradition obtained both in suits at law, where the role of the judge was narrowly defined, and in causes sounding in equity, where judges had a different scope of remedies at their disposal (most notably the power to issue injunctions expressly mandating or forbidding specific conduct).

Federal courts historically have understood injunctions as limited, focused remedies for violations of rights not addressable through standard legal remedies such as compensatory damages.¹⁷ Although there have been some exceptions,¹⁸ Supreme Court decisions continue to emphasize the need for caution in framing and issuing injunctions.¹⁹

Equitable Relief in Private Suits: Geography and Identity

The test for injunctive relief for private suits traditionally has looked at a balance of harms (from granting or withholding relief), inadequacy of standard legal remedies, and potential public interest effects.²⁰ Injunctions were limited to the specific parties before the court, although class actions were permitted to address conduct that affected unnamed class members who participated only via representation that in theory protected their interest, even if this protection often was more fictional than meaningful.²¹

While the parties had to be before the court and have the requisite connection to the place in which suit was joined, the conduct enjoined might take place outside the court’s geographic locus—so long as the court had jurisdiction over the matter and the parties (which required activity that brought the parties within the court’s reach), the injunction could address actions that might take place elsewhere.²² This sort of “long-arm” authority was expressly contemplated in actions under the bankruptcy law.²³

Typically, however, courts’ remedies were limited geographically and operated only with respect to specific parties. Enforcement outside the issuing court’s jurisdiction depended on accord from other courts.²⁴

Still, courts asked to enforce injunctions rarely looked at the injunctions’ substantive justifications. Courts generally regarded injunctions as prima facie entitled to enforcement and generally treated violations of injunctions as grounds for findings of contempt.²⁵

Equitable Remedies Against the United States

Suits against the United States government implicate special concerns. First, the government enjoys a presumption of immunity from unconsented suits.²⁶ This bar to litigation often was avoided by bringing actions against individual government officers, a practice that raised other concerns about the intrusion of judicial scrutiny into the functions of other, coequal branches.²⁷ The Administrative Procedure Act of 1946 (“APA”) provided broad opportunity for challenges to administrative actions, waiving immunity with respect to most suits seeking declaratory or injunctive relief, though still not providing an open door to litigation against the United States.²⁸

Second, even where the government acquiesced to suits, it did not abandon pre-existing doctrines intended to prevent litigation from becoming a substitute for constitutionally prescribed decisional processes.²⁹ For example, the APA carried forward requirements that parties bringing suit against the government have a personal stake and contest a legal right personal to them or within the umbrella of protection granted to a class of people under relevant law.³⁰ An important component of standing, increasingly emphasized in Supreme Court decisions over the past 30 years, is the requirement that courts be able to grant plaintiffs a remedy for the asserted harm, often referred to as “redressability.”³¹ The redressability requirement plays an important role in assuring that litigation resolves narrowly focused controversies, rather than simply eliciting judges’ views on general policy disputes.³² While it would be fatuous to suggest that decisions on matters such as standing have been wholly consistent—or consistently attentive to fundamental concerns over judicial review’s potential tensions with basic constitutional structures—judicial decisions generally respect doctrines designed to protect constitutionally anchored structures.³³

Third, when the government was found to have acted unlawfully, judicial remedies were traditionally of limited scope. Individuals who brought actions before a court could, under certain conditions, secure a declaration respecting the conduct at issue and, where appropriate, an injunction preventing the relevant officials or agencies from engaging in conduct found to be unlawful.³⁴ However, courts generally did not enjoin all conduct that took place anywhere with respect to any party potentially having similar legal claims. Instead, injunctive relief was generally restricted both with respect to the parties covered³⁵ and to the injunction’s geographic reach.³⁶ As discussed further below, although some language in the APA might have supported a different, broader construction of courts’ remedial authority or responsibility, the law was not initially understood as altering traditional rules.³⁷

II. Recent Developments: Nationwide Judging

The federal courts’ tradition has been one of remedial modesty, but the last few years—especially the time since President Donald Trump’s election—have been a marked departure. At least some federal judges in this era have shown far greater willingness to issue nationwide injunctions and have offered explanations for their use that depart from past understandings of federal remedies’ limitations and purposes.³⁸ Consider, for example, litigation challenging executive actions respecting immigration, which has given rise to many of the most discussed and debated injunctions.

A. Immigration Programs and Nationwide Injunctions

President Barack Obama directed officials in his administration to implement programs, labeled “Deferred Action for Childhood Arrivals” (“DACA”) and “Deferred Action for Parents of Americans” (“DAPA”), that conferred presumptive non-removal status on two classes of immigrants who had entered the country illegally.³⁹ Suits against these programs objected that they constituted bold revisions of immigration law under the guise of merely setting enforcement priorities, which violated both the relevant legislation directed at immigration and general requirements for administrative action.⁴⁰ Notably, the controversy in Texas v. United States⁴¹787 F.3d 733 (5th Cir. 2015). resulted in a nationwide injunction barring DAPA’s continued implementation.⁴²

President Trump issued a series of executive orders restricting immigration from nations deemed to have insufficiently dependable screening procedures to guard against potential threats to U.S. security.⁴³ Plaintiffs sought, and obtained, nationwide injunctions against each of these orders.⁴⁴ After a review by the Department of Justice (which found the DACA program’s creation legally defective), President Trump’s administration announced its intention to cease accepting applications for deferred deportations under DACA and to cease accepting renewal applications to extend deportation deferrals under DACA beyond a period of six months.⁴⁵ Those actions, too, were halted by a nationwide injunction.⁴⁶

B. Bases for Nationwide Injunctions

The explanations for issuing or upholding nationwide injunctions vary across these cases, with some—perhaps all—stretching the bounds of courts’ understood remedial power.

Relief to Specified Litigants

The U.S. Court of Appeals for the Fifth Circuit affirmed the injunction against deferring deportations under DAPA based on the deferrals’ effects on the state of Texas and other plaintiff states.⁴⁷ Defending the decision to use a nationwide injunction, the majority opinion noted the “substantial likelihood that a partial injunction would be ineffective because DAPA beneficiaries would be free to move between states.”⁴⁸ States cannot constitutionally bar migration from within the United States. Therefore, a remedy preventing the government from deferring deportation of current illegal-immigrant residents in a specific plaintiff state (such as Texas) would not prevent illegal immigrants moving from any other state to take up residence in the plaintiff state.

The point was not that a nationwide injunction would be more beneficial to the interests asserted by Texas and the other plaintiff states. Rather, it was that a traditional, geographically restricted injunction well might provide no meaningful relief at all. Whatever one thinks of the particular (much criticized) application, the Fifth Circuit’s test, at bottom, was the traditional balancing test for injunctive relief, attending to the specific interests of the parties before the court even if the remedy ultimately had nationwide scope.⁴⁹

Relief for Others and Doctrinal Concerns

In contrast to the Fifth Circuit’s emphasis in Texas on the injunction’s impact on specific interests of parties before the court, some explanations for nationwide injunctions—particularly injunctions against restrictions on entry of potential immigrants into the United States—focus on general, abstract interests in legal doctrine or related interests of broad groups of individuals not directly participating in the litigation.

Take, for example, the U.S. Court of Appeals for the Fourth Circuit’s affirmance of a district court injunction against implementation of the third Executive Order from President Trump restricting immigration from specified nations—an injunction that was both nationwide and unlimited as to its beneficiaries.⁵⁰ In reaching that decision, the Fourth Circuit explained that “because we find that the Proclamation was issued in violation of the Constitution, enjoining it only as to Plaintiffs would not cure its deficiencies.”⁵¹ Extraordinary relief based on an imperative to prevent unconstitutional government action—encompassing any application of the challenged policy to anyone, anywhere—seemed self-evidently justified to the judges in that case.⁵² It is difficult, however, to believe that the judges would so easily have embraced the same view in every case of a government action found to be unconstitutional without other supporting reasons.

The U.S. Court of Appeals for the Ninth Circuit, in addition to invoking similar doctrinal considerations in its opinion upholding a nationwide injunction against immigration restrictions in Hawaii v. Trump,⁵³ seemed to invoke considerations mirroring the Fifth Circuit’s concerns with the effects of interstate travel.⁵⁴ It stated that “the Government did not provide a workable framework for narrowing the geographic scope of the injunction.”⁵⁵ Quoting the district court’s decision, the Ninth Circuit remonstrated, “the Government has not proposed a workable alternative form of the [injunction] that accounts for the nation’s multiple ports of entry and interconnected transit system and that would protect the proprietary interests of the States at issue here while nevertheless applying only within the States’ borders.”⁵⁶

The problem identified by the Fifth Circuit, however, was the impracticality of excluding illegal immigrants from one state if they gained entry through another state (or continued residence in another state). As the Fifth Circuit noted, freedom of travel among the states would make a geographically limited exclusion order (or its equivalent) ineffective respecting the narrow, particularized claims of the states before the court.⁵⁷ There is no parallel problem for protecting interests in the admission of immigrants. Freedom of travel once immigrants are admitted does not make state interests in admission to the particular jurisdiction before the court any weightier or diminish the utility of providing specifically for admission to the state or states before the court. In the end, to justify the scope of the Hawaii district court’s injunction, the Ninth Circuit needed to rely on its concerns for uniform nationwide application of the rules it thought were legally proper (and not rules it deemed improper).⁵⁸

Because the Supreme Court reversed the Ninth Circuit’s decision on the merits, it did not reach questions about the propriety of the remedy.⁵⁹ Justice Thomas’ sharply critical concurring opinion, however, noted both the importance of addressing the increasing frequency of what he termed “universal injunctions” and some tensions between such injunctions and constitutional structure.⁶⁰

Concerns about those tensions are particularly connected to the grounds on which injunctions are based. The concerns over nationwide injunctions raised by Justice Thomas, among others, are addressed in the following sections.

III. Forum Shopping and its Discontents

Expanding the scope of federal injunctive relief—especially in the sorts of cases that have been making news and on the particular bases relied on for many of these injunctions—has several unfortunate consequences. Chief among these: it encourages forum shopping, increases entanglement of the judiciary in the political domain, and undermines important aspects of our constitutional structure. Those effects, which encompass both practical-policy consequences and legal consequences, are the focus of the remaining parts of this Article.

A. Forum Shopping: Looking for Mr. Goodbench

The first, and most obvious, consequence of enabling individual district judges to issue nationwide injunctions is the creation of incredibly strong incentives for plaintiffs to rush to file suit in jurisdictions thought most likely to provide a sympathetic forum for their claims.⁶¹ The first judge to decide a matter frequently has an outsized impact on the development of the law with respect to that specific issue.⁶² But the degree to which that first judge’s effect obtains and endures is tempered by the ability of other judges to reach different, or even contrary, determinations.

In general, a judge’s decision at most constitutes precedent that only binds other judges within that judicial district (for a panel of the Court of Appeals, a decision binds other judges only within the particular circuit).⁶³ Further, for ordinary injunctions, the decision will not provide relief to a large group because it will command the defendant only to take action respecting the parties before the court, and perhaps similarly situated parties within the geographic reach of the court. Thus, both the decision’s direct effect and its power as precedent will be limited.⁶⁴

This is most emphatically true for suits against the United States government, as it is commonly permitted to decide not to follow judicial declarations respecting an action’s or rule’s legality outside the issuing court’s designated geographic region.⁶⁵ This practice evinces respect for constitutional and legislative commitments of authority to executive officers and to limitations on the authority reposed in any one judicial officer. In the ordinary case, then, even if litigants always prefer a friendlier forum to a more hostile one, there is relatively little to be gained by rushing to put a case before the friendliest possible set of potential judges. Simply put, the less sweeping the potential remedy, the lower the benefit from raising the odds of obtaining it.

The situation changes dramatically when a court can effectively bind the entire nation with an injunction that constrains behavior with respect to an unlimited range of persons and to conduct occurring and having effects in an equally unlimited array of places. As one commentary put it, “nationwide injunctions . . . incentivize[] an extreme race to courthouses more inclined to issue nationwide injunctions and more sympathetic to the plaintiff’s position.”⁶⁶ Professor Samuel Bray adds, “[t]he pattern is as obvious as it is disconcerting. Given the sweeping power of the individual judge to issue a national injunction and the plaintiff’s ability to select a forum, it is unsurprising that there would be rampant forum shopping.”⁶⁷

The enticement to rush to a friendly forum is increased where the stakes are the nature of government policy, rather than more concrete returns to litigants. This flows partly from the asymmetry of the stakes. Given the usual rules of estoppel and enforcement of injunctions, a win for the government does not end litigation, while a win anywhere, anytime for plaintiffs effectively precludes the enjoined officials or offices from continuing to apply the policy.⁶⁸ This asymmetry does not necessarily represent the best rule—while it is easy to justify refusal to bind future litigants who were not party to a decision that disadvantages them, one-way “offensive estoppel” also can be problematic.⁶⁹ The Supreme Court has recognized that asymmetry is especially evident where the government is the party estopped.⁷⁰ A nationwide injunction exacerbates difficulties with estoppel rules, essentially ending the prospect for litigation in other courts which may take a different view of the law. The benefits of preserving potential for other courts to consider similar questions are discussed further below;⁷¹ the point here is simply that nationwide injunctions and offensive collateral estoppel together virtually eliminate that option.

B. Forum Shopping’s Rule of Law Problems

Forum shopping, however, does more than reduce opportunities for consideration of particular legal issues by other courts. Notably, forum shopping both reflects and expands a particular tension with rule of law values.

In marked contrast to structural features of federal court practice, such as the creation of “diversity” jurisdiction (which was intended to, and probably does, limit biases of “home court” advantage for plaintiffs from one state facing off against defendants from another),⁷² forum shopping seeks to exploit biases beyond those naturally associated with affinity for one’s local compatriots. In fact, it seeks out biases that contradict fundamental features of a system that embodies the rule of law.

Forum Shopping vs. Principled Predictability

This Part explains the interplay between the doctrines of principled predictability and the rule of law. Afterwards, this Part discusses two different sorts of variation in decisional-based outcomes: concepts described here under the labels “decisional vibration” and “decisional divergence.” Last, this Part argues that nationwide injunctions’ encouragement of forum shopping—which is the antithesis of the rule of law—has the potential to interfere with proper application of the rule of law.

a. Principled Predictability and the Rule of Law

The rule of law, at its core, demands that legal rules are predictable based on principles knowable in advance.⁷³ Predictability of the law is essential to knowing how you can live your life without risking penalties imposed against your will by government. Yet, the rule of law requires more than just the ability to predict. Principled predictability is essential to law’s legitimacy; it assures that laws apply the same way to everyone and that the laws are applied the same way by each official charged with enforcement.⁷⁴

If judges are supposed to interpret and apply law impartially within the confines of what is necessary to decide disputes properly before them, the rule of law ideal is that litigants need not know the identity of the person who will judge their claims to predict the outcome. Accepting the analogy of judges to baseball umpires,⁷⁵ the ideal is that each umpire applies the rules of baseball the same way as other umpires and that each applies the rules the same way to all players and all teams.

b. Judge-as-Referee and “Decisional Vibration”

There are serious arguments about how possible it is to attain the ideal of principled predictability (the core of the “judge as umpire” metaphor).⁷⁶ Certainly there are difficult judgment calls in law and sports alike. Even people of good conscience and great skill—who agree on the task and endeavor to reach the right result under shared views of the rules—can differ on nuances of the rules’ meaning or on the particulars of their application.⁷⁷ In fact, there are times when the judgment or perception required for a given decision makes application of governing rules so difficult that the same judge or referee might reach different outcomes if the matter could be replayed repeatedly (with the judge or referee making a new, independent judgment each time). This weak form of outcome difference can be termed decisional vibration. It is easy to accept this form of difference as consistent with an overall picture of decisional consistency and adherence to the rule of law.

The debate over the extent to which limits of language, perception, or reason inevitably produce differences (how far they move rule-application from merely cases of decisional vibration to more serious types of divergence) should be taken seriously.⁷⁸ Yet, in a real sense, decisional vibration should also be seen as more of a footnote than a central consideration on the core issue respecting the judicial function. What matters far more is the existence of very broad agreement—cutting across time and divergent perspectives on many aspects of legal reasoning and judicial action—that judges shouldendeavor to do their job in a way that is consistent with the goal of principled predictability, including its components of neutrality, generality, and externality, notwithstanding potential limitations on effectuation of that aspiration.⁷⁹

c. Forum Shopping and “Decisional Divergence”

The predicates for (and goals of) forum shopping, however, are the antithesis of this rule-of-law vision. Forum shopping embraces the understanding that particular judges will decide a given matter in divergent ways—not because of random differences in perception of the sort that would lead to different calls by a referee in the repeat-play hypothetical, but because of disparate views of how laws should be interpreted and what extrinsic information should come into play (what could be termed decisional divergence).⁸⁰ The differences that are essential to forum shopping are the sorts of differences that lend themselves to predictions on expected outcomes that vary for particular decision-makers, while the variances incorporated in the repeat-play hypothetical and common versions of the judge-as-umpire metaphor do not.⁸¹

Moreover, forum shopping self-consciously seeks out judges who lie at an extreme among the relevant class of judges, because the most extreme judges have the greatest probability of deciding a matter in a way that correlates with the interests ofone party to a dispute.⁸² If that were not true, there would be no need to seek out a forum whose judges are expected to be especially favorable to the party picking the forum—random selection among the relevant set of judges in the class of potentially available courts would be good enough.

The fact that litigants in a number of high-profile cases obviously do engage in forum shopping underscores the widely shared perception that at least some judges can be expected to make decisions that are heavily influenced by personal inclinations (that is, by something apart from generally accepted principles of decision).⁸³

Recognizing that litigants in high-profile cases engage in forum shopping does not, in itself, constitute a condemnation of the federal judiciary. It does, however, reflect a common understanding about differences among federal judges—both of the existence and the limits of these differences. The nearly 700 federal district judges and roughly 180 circuit judges currently serving could be arrayed on a curve representing likely approaches to a given issue—products of the overlay of judicial views, the judges’ approaches to related issues, and the ideological or methodological commitments on judges’ decisions.⁸⁴

For most sorts of cases and most sorts of claims, there is limited opportunity for forum shopping, for seeking out judges who would be in the tails of the distribution. Plaintiffs generally have few options on where to file their cases. Where broader opportunity for selecting a forum has existed, the Supreme Court self-consciously has begun cutting back on forum shopping options, as it did with respect to patent litigation recently in TC Heartland LLC v. Kraft Food Group Brands LLC.⁸⁷

Yet, where nationwide injunctive relief is possible, there is a much broader range of possibilities. Although plaintiffs still must have sufficient contacts in whatever locale they file suit in to satisfy jurisdictional requisites, those interested in a matter of broad public interest generally can find one person or entity that can meet that test for a desirable venue.⁸⁸ The ability of a single judge to bind the entire nation frees plaintiffs from needing to litigate in each individual’s location, enabling those hoping to benefit from a nationwide injunction to seek out the outermost tails of the entire distribution of judges—creating an extreme form of the forum shopping problem.⁸⁹

Forum Shopping and Sources of Judicial Divergence

In one sense, the nature or source of these divergent inclinations for judges’ decisions is irrelevant. Whatever methodological commitments or personal views of right outcomes cause departures from normally expected decisions—departures that are sufficiently pronounced to support litigants’ investment in getting a case before a particular “deviating” judge or court—the evidence of diverging expected outcomes for specific judges or courts in itself suggests a gap between current reality and important rule of law ideals.

From the first vantage, the nature of the views or commitments that cause the divergence does not matter to this judgment as much as the fact that some judges and courts consistently stand apart from others—that they reason differently or reach different conclusions due to factors not common (not generally or randomly distributed) across the broad sweep of judges who might hear and decide similar issues.⁹⁰ The harm to rule of law values is the reduction in principled predictability in individuals’ ability to assess how the law will treat their behavior without needing to know who will decide.⁹¹ Because the actual decision-maker is not knowable in advance of actions that may be subject to judgment, significant deviations from principled predictability seriously threaten a core attribute of the rule of law.⁹²

In another sense, though, the reason that a particular judge or court is in demand does matter. If litigants rush to get their claims before a court that is known for flaunting established rules and finding creative (or simply unlawful) ways around precedent,⁹³ that signals a sense that the overall system is fairly law-bound.

Paradoxically, a more charitable view of some departures from current dominant norms—and of some investments in forum shopping in response—is more damning of the legal system. Consider whether litigants are willing to invest significant amounts of time, energy, and financial resources in seeking out a court or judge that stands out as especially likely to base decisions on approaches that are consistent with law as written and contemporaneously understood (with decision approaches that are defended as most constraining and most consistent with principled predictability).⁹⁴ That would imply a larger and more widespread departure from principled predictability on the part of other courts and judges.

IV. Politicizing the Courts: Incentives and Effects

A second problem with the expanding use of nationwide injunctions, linked to the rule of law problems from forum shopping, is the increasing politicization of the courts. This is the cause and consequence of forum shopping for the cases that are most publicly notable and of most concern.

A. Politically Motivated Litigation: Quagmire in the Making

Politically motivated litigation presents special problems, almost inevitably generating concerns about judges’ ability to render fair decisions that are not tainted by their own political leanings. This Section explores concerns with impartial decision-making in politically motivated litigation and the contours of judicial decision-making observed in politically motivated litigation.

Concerns of Fair Decision-Making: Reasons and Problems

As discussed above, any systemic differences in predicted outcomes (significant variations between the decisions expected from one specific court or judge and those expected from a different court or judge) are problematic.⁹⁵ While generally discussed in rule of law terms, the point has more general application across a range of activities and decisions.

Consider, for instance, problems encountered with teachers grading student work (a typical setting in which variation among decision-makers is both common and problematic). Having one group of teachers in a school known to be remarkably easy graders and another group with well-earned reputations as astoundingly hard graders undermines the notion of grades across the curriculum being a fair basis for comparing student performance.

Tension with the notion of fair comparison is far higher when assignment of students to classes is a matter of choice rather than chance. This is infinitely more evident if the choice respecting which students get the hard graders and which the easy ones is based on what widely would be seen as illegitimate factors, such as a student’s race, religion, or political affiliation. The unfairness of the grading comparisons is not necessarily any greater in those instances than where the distribution of students and teachers is random. But the sense of unfairness—of students being penalized for reasons that should not be part of the considerations that affect their grades—is stronger and more visceral when decisions are based on criteria that are considered suspect in many settings.

Politically Tinged Decisions

The difficulty of squaring a system that has this kind of distortion with widely accepted notions of fairness is obvious in the school-grading example. It should be obvious as well in the setting discussed here, as this is the direction that expanding use of nationwide injunctions takes the judicial system.

While any inducement to forum shopping and increased divergence among potential decisions from different federal courts is problematic, the critical exacerbating factor for disputes about nationwide injunctions plainly is the underlying cases’ connection to political issues. Notable cases where nationwide injunctions are sought—such as the immigration-related cases discussed above—have had obvious political overtones, as especially polarizing programs can be stopped or dramatically slowed with an injunction that has broad scope and wide reach.

Further, plaintiffs strongly identified with political causes—politically active interest groups and political officials (largely state attorneys general, a class of officials who are politically connected, politically selected, and often interested in higher political office)—frequently have been the moving parties in cases where nationwide injunctions are sought.⁹⁶ Indeed, the pattern that emerges is the routine use of suits seeking nationwide injunctions in highly politically salient cases with relatively consistent blocs of public officials and interest groups, from relatively consistent parts of the nation, lining up in opposition.⁹⁷ Reflecting the same pattern seen in the actual political arena, suits by Republicans from “red states” opposed President Obama’s administration on matters related to health care, environmental and public land regulation, and immigration, while suits by Democrats from “blue states” have opposed President Trump’s administration on those same issues.⁹⁸

Inserting the judiciary into quintessentially political fights, even when there is a substantial legal issue to be decided on recognizably legal grounds, plainly risks the perception that judges base decisions on political preferences, or at least are affected by those preferences.⁹⁹

The problem is not that politically salient legal challenges (ones that implicate issues of great political significance) inescapably lack other valid legal bases or that politically motivated lawsuits (ones brought by or prompted by politically active plaintiffs for reasons connected to political conflicts) inevitably are without merit as a matter of black-letter law. Nor is the problem that federal courts routinely base decisions on political considerations, or that issuance of a nationwide injunction necessarily signals a political basis for decision. In the main, the evidence respecting federal court decisions is at odds with each of those charges.¹⁰⁰

Instead, the problem is that when politically active parties engage courts in challenges to decisions made in the political domain it is difficult to separate the resulting decisions from an appearance of judicial entanglement with politics. The judicial entanglement is especially problematic when the parties can select which judges hear the challenge, take their case to the judges they believe most sympathetic to their views, and make the decision by those judges conclusive. That appearance is far stronger when the judges picked to decide a politically contentious matter are in the outermost tails of the distribution of judges based on their likely approach to that particular decision. Putting an exclamation mark on the matter, the appearance of political entanglement is even more strongly conveyed when only one judge (or only one set of judges) can conclusively decide the matter.

B. Today’s Risks with Nationwide Injunction Suits: Political Causes, Political Reactions

The combination of three factors that characterize contentious nationwide injunction cases almost inevitably draws the courts further into the political domain. Namely: (1) political goals, (2) forum shopping for sympathetic judges, and (3) court decisions with nation-wide effects that have the potential for profound impact on politically salient issues. Combined, those factors largely explain why commentary on these court decisions tilts toward explanations characterizing the court decisions as rooted more in politics than in law.

For a small window onto the way these decisions are discussed, consider descriptions of the travel ban decisions on the widely read website Above the Law by its Executive Editor. His posts include titles like “We’ve Finally Achieved a Patina of Legalism to Cover the Bigotry” and references to anyone who supports the President’s position on immigration or opposes nationwide injunctions to halt his administration’s orders as “#MAGA jerkfaces.”¹⁰¹

Rhetoric that seems more the province of political combatants in campaign mode than of lawyers analyzing legal claims and decisions is now common. Much of the commentary on nationwide injunction cases describes both the officials who bring the suits seeking nationwide injunctions and the judges who decide to issue the injunctions in decidedly political terms. Suits seeking nationwide injunctions have been described as “political cudgels” for state attorneys general to brandish against the rival party,¹⁰² devices used by state attorneys general acting as “partisan warriors”¹⁰³ fighting against opposing presidential administrations, examples of “pure politics,”¹⁰⁴ and products of “increasingly partisan AG coalitions.”¹⁰⁵ Observers also declare that judges have “turn[ed] to [an] extreme remedy” and “wield” these injunctions as a “major political weapon” in the fight between a President and his opponents.¹⁰⁶ Other commentary notes the obvious, strong ideological leanings of judges in particular districts that invite filings from lawyers seeking to stop policies of the competing party—at times even manipulating rules respecting “related cases” to “steer” specific matters in their direction.¹⁰⁷ In other words, politically motivated lawsuits brought before courts thought likely to share (and act on) the plaintiffs’ political predilections generate legal decisions that are widely viewed through political lenses and often (rightly or wrongly) suspected of being the result of judges’ political leanings.

The increasing political characterization of court decisions not only encourages litigants to seek special advantages in future litigation where potentially broad relief is in play. It also threatens an increasingly political focus on judicial appointments, including appointments at the district court level—a level at which appointments have been relatively insulated from boldly politicized debates. Senatorial input has tended to play a greater role in nominations for district court judges, including input from senators not of the President’s own party, and fights over confirmation to district judgeships have been less frequent than fights over circuit judges’ confirmations.¹⁰⁸

Yet the turn toward using district judges as soldiers in proxy fights over political platforms unsurprisingly increases the likelihood that both incumbent administrations and opposing political parties will seek partisan advantages from these appointments. After all, if the decisions of district judges potentially can disrupt government programs that represent important priorities for elected officials, those officials—on both sides of the political aisle—will take steps to protect what matters to them.¹⁰⁹

Expanding partisan fights over judicial selection, in turn, will continue the ratchet of politicizing the courts. Once district judges are seen as combatants in the fight against partisans of the other political party, instead of referees over trial proceedings that pit legal partisans against one another, it is hard to avoid pressure for more politically charged considerations in appointments (and, potentially, more politically influenced conduct by those judges). Under these circumstances, even if district court appointments remain closely tied to patronage of home-state Senators, the selections of potential nominees—and the votes of colleagues on the nominees’ confirmation—are apt increasingly to incorporate more politically aligned considerations.

V. Constitutional Structure and Federal Judiciary’s Design

A third consequence of the expansion of nationwide injunctions is their role in undermining the division of constitutional responsibilities among the different branches of government. As explained below, this includes intrusion on Congress’ function of writing the laws and, in some cases, also on properly delegated exercises of executive discretion over laws’ implementation. It also contradicts the historical commitment of specially tailored equitable discretion to federal judges and the essence of a system of lower court assignments below the Supreme Court.¹¹⁰

A. Nationwide Judging Versus Constitutional Structure

Judicial decisions that have conclusive nationwide effect are fundamentally at odds with the structure of the Constitution. This Section explains the constitutionally delegated authority of the courts, the limited circumstances in which nationwide relief may be appropriate, and assesses courts’ role in and standards governing injunctions for politically motivated litigation.

Courts, Law-Making, and Delegated Discretion

Most obviously, the Constitution’s plain commitment of law-making and related policy choices to the Congress, and of subordinate exercises of discretion over implementation of the laws to the executive branch, cannot be reconciled with routine invocation of judicial power to revisit those branches’ choices. Stated differently, the assignments of authority in Articles I and II of the Constitution cannot be made consistent with granting courts broad power to reverse national policy choices made by the politically responsible branches.¹¹¹

Courts enjoy authority, in appropriate cases, to say what the law is, how far the Constitution permits Congress to go in its exercise of authority, and how far the law permits executive action to go.¹¹² But using that authority outside those settings, stretching the contours of judicial authority, risks assertion of a broad supervisory power over those branches’ decisions that manifestly changes the basic constitutional design.¹¹³

For most of America’s history, Article III was not understood to incorporate any such revisory power, even by the most vigorous champions of federal judicial power. Indeed, judges’ fear of intruding into the proper domain of the political branches—even when a serious question of law-interpretation is presented in court—explains a wide variety of judicial doctrines (encompassing standing, political questions, related rulings on justiciability, the ability to withhold judgment where no remedy would be available, and the canons of construction avoiding constitutional questions).¹¹⁴

The critical distinction emphasized by de Tocqueville, Hamilton, Madison, and John Marshall was that between, on the one hand, deciding what law to apply to specific parties in a specific case (including whether a given act violated constitutional restraints) and, on the other hand, determining what law applies nationwide to anyone anywhere who may share the concerns asserted about a choice made by the politically chosen branches.¹¹⁵ In contrast to the limited view of courts’ role, widespread use of nationwide injunctions to shape applicable law on the basis of general, national considerations—especially in cases infected with partisan, political overtones—effectively replaces the tri-partite constitutional structure with one that puts courts in the position of overall political overseers.

Limited Defense of Nationwide Relief

Despite its problems, broad injunctive relief may be appropriate in certain circumstances, perhaps even in cases connected to issues of governance. Regulatory initiatives of administrative officials whose discretionary authority stretches (and often breaches) the bounds of constitutionally permissible delegation frequently put individuals and entities in a position where they must either submit to a possibly unlawful demand or risk large penalties for resisting.¹¹⁶ Professors Jonathan Adler and Michael Greve’s descriptions of the saga of the Environmental Protection Agency’s “Mercury and Air Toxics Rule” illustrates the problem.¹¹⁷ Without an injunction delaying the administrative fiat, the practical result is to eliminate the prospect of meaningful review. Any investments in compliance (through reconfiguring businesses, purchasing new equipment, and changing aspects of everyday practice that limit exposure to penalties), even if not eliminating courts’ willingness to consider challenges, plainly deprive judicial review of real significance.¹¹⁸

Assuming no strong, countervailing need for immediate implementation of the relevant rule, the norm for injunctive relief would be to stay the rule pending judicial review. Unlike ordinary litigation where the appropriate response to this problem undoubtedly would be staying an action solely with respect to the particular litigants, in some instances of federal regulation, this option’s impact on other regulated competitors will be serious in its own right but also often will result in serious risk of harm to the parties seeking the stay.¹¹⁹ Where there is a strong showing of regulatory overreach—of a decision that exceeds legal authority or of a basis for action that transgresses constitutional strictures—courts appropriately may enter broader injunctive relief while review proceeds.¹²⁰

Politically Situated Litigation and the Judicial Role

The common setting for suits seeking nationwide injunctive remedies, however, is not one where competitive harm will flow from a limited injunction, or where the party in court is effectively deprived of any protection by a more limited injunction. It is not one focused on the effects of a rule on particular parties asserting specific consequences of a rule’s application, or of failure to delay application pending review.

Instead, typically the request for an injunctive remedy having nationwide and universal coverage is integrally related to the goal of reversing a politically contested choice made by the legislative or executive branches of government.¹²¹ In that context, unlimited coverage for an injunction makes bigger headlines, bolder claims of having reversed the successes of political opponents, lesser prospect for judicial determinations seeming like byproducts of ordinary litigation, and greater tension with the original constitutional order.¹²²

Bold, simple statements about the division of constitutional authority—and expansive conclusions about what such division means for the roles of courts—must be tempered by recognition that legislative and administrative decisions often are made strategically, taking account of background expectations respecting potential judicial decisions.¹²³ At times, legislators may, for example, pass laws that a majority (or a critical element of a majority) of Congress believes are not constitutional because they gain personally from voting in favor of such laws, despite their expectation that the laws will be found invalid if challenged in court.¹²⁴ Similarly, administrative officials may adopt rules or make other decisions that they do not expect will be sustained as within statutory authority because they will gain personally from embracing the positions in those rules or decisions, or, in contrast, they may make decisions that stretch the limits of their authority expecting that judges will defer to them.¹²⁵

More broadly, the relationship among legislative decisions, administrative decisions, and judicial decisions may implicate strategic considerations both in courts’ determinations and in other official actions made in contemplation of courts’ decisions.¹²⁶ Recognizing that reality complicates efforts to assess when courts are intruding into the political domain, as opposed to merely fulfilling legitimately assigned tasks consistent with the limited domain set forth in the Constitution and elaborated in statutes.

Still, the constitutional pattern of separated authority and defined, basic roles for the different branches of the national government provides a touchstone that suggests the limited role courts should play and the boundaries of judicial remedies. First, courts should not be making rules on important matters of policy, but instead should be giving effect to rules set by others. Second, when called upon to resolve questions of legal interpretation, courts should employ their remedial authority in ways consistent with their role in resolving concrete legal contests, not in ways tantamount to setting broad national policy.¹²⁷

“Complete Relief”: A Misleading and Incomplete Standard

Given the considerations just discussed, the standard of “complete relief”—making the injunction as broad as needed to give full protection to the interests asserted by plaintiffs—cannot be the test for determining how broad an injunction should be.¹²⁸ Although the standard was framed as restricting courts from issuing injunctions that exceeded the scope needed to provide relief to parties before the court,¹²⁹ in practice it pushes toward excessively broad injunctions, especially where the focus is not limited to an action’s effect solely on parties before the court.¹³⁰ Further, in settings where political judgments are integrally related to the assessment of interests involved on both sides (for and against the injunction), the standard of complete relief tilts remedies toward the political forces opposing the government.

While that bias may be justified in certain areas, such as cases involving government restraints on core political speech,¹³¹ applying it more broadly—especially in the types of cases commonly seeking sweeping injunctive relief—inevitably embroils courts in ongoing political disputes in ways that will not seem even-handed.¹³² The bias inherent in the complete relief standard exaggerates the bias that is already present in litigation seeking nationwide relief, because the side asking for the injunction has specifically chosen a court thought likely to favor broader relief in the particular case.¹³³ In this sense, it combines an easier venue for the moving party, and an easier standard for relief if that party prevails.

Some areas of the law contain rules consciously tilted toward one party or one result. This is the case, for instance, with requirements of unanimous guilty verdicts and of proof of guilt beyond a reasonable doubt in criminal trials; as with other “tilted” rules, these requirements reflect a sense of asymmetric social costs—here, between convicting innocents and releasing guilty parties.¹³⁴ But the tilt in nationwide injunction cases adds bias to what are at their core political debates, which already have moved to courts from the arena in which political disputes are more naturally resolved. Adding cumulative biases to the outcome seems especially unwarranted in this context, where the courts, if they are involved at all, should be neutral arbiters of law.¹³⁵

Moreover, the issuance of one nationwide injunction (especially where the injunction is permanent, not merely a stay pending review)¹³⁶ has the effect of stopping the government. As a practical, if not legal, matter, it is a one-sided bar against actions challenging, or providing a basis for challenging, the court’s decision.¹³⁷ A more limited injunction allows both the government and affected parties to decide whether to contest that specific judicial judgment in other fora.¹³⁸ This effect of nationwide injunctions also raises the political importance of decisions on the grounds for an injunction and judgments on its scope—further removing litigation potentially resulting in nationwide injunctions from ordinary, apolitical legal decision-making of the sort that de Tocqueville lauded and our Constitution’s framers expected.

B. Nationwide Judging’s Contrast with Federal Judiciary Design

Two types of limitations—rooted in historical practice and the logic of courts’ structure and function—have been offered as the principal means for avoiding the problems associated with nationwide injunctions: geographic restrictions on injunctive relief (confining relief to the district or circuit within which the enjoining court sits) and restricting injunctions solely to the parties in court (or, in appropriate cases, a properly certified class). These generally have been presented as alternatives, with debates over which is the more legally sound approach.¹³⁹ Both limitations matter, however, as they are complementary protections against judicial determinations that stray into domains reserved to the other branches of government. And both limiting practices are at odds with the issuance of nationwide injunctions.

Geography and the Organization of Federal Courts

The first traditional limitation on injunctive relief in federal courts is geographic. The design of the federal judiciary, from its inception, was for there to be one Supreme Court with national supervisory authority and a number of lower courts responsible for particular regions of the nation.¹⁴⁰ Starting with the Judiciary Act of 1789,¹⁴¹ the federal courts have included district courts and circuit courts, with the circuit courts beginning primarily as trial courts for more serious matters but evolving into intermediate appellate courts.¹⁴² While the details of the courts’ jurisdiction and composition have changed over time, the overall pattern of geographically divided judicial authority has remained constant throughout the past 240 years.

a. Geographic Divisions’ Limited Powers

One aspect of divided authority has been the limitation on lower courts’ powers. Each lower court is geographically limited as to what matters can come before it. So, for example, authority over suits initially must be anchored in the involvement (as claimant, defendant, or subject) of persons resident and property located within the relevant district and to claims arising within the particular district, but generally not to matters, persons, and property outside the district.¹⁴³ The same limitation arises for circuits of the U.S. Courts of Appeals, which hear appeals from districts located within each circuit’s assigned region—thus, the Second Circuit hears cases arising in or concerning entities located in New York while the Seventh Circuit hears matters from Chicago, and so on. Geography historically restricted the scope of jurisdiction and authority for all courts, at least for those exercising temporal power necessarily restricted by the extent of the sovereign’s control.

The same limitation seemed entirely natural to those who set the template for the federal judiciary, despite the broader reach of national power.¹⁴⁴ That limitation is reflected, among other things, in the original residence requirements for judges (who, starting with the 1789 Act, were required to live in the assigned district),¹⁴⁵ allocation of jurisdiction to each district and circuit, and—most important for understanding the proper limitations on injunctive relief—restrictions on the effect of the courts’ rulings.

The practice has long been that courts in one circuit are not bound to follow decisions of those in another circuit.¹⁴⁶ While there are different views on the historical bases for the practice’s development, the Supreme Court has clearly accepted it, and Congress has left it in place.¹⁴⁷

Limited scope for lower court decisions has obvious benefits. It provides opportunity for other courts (including those whose judges may reflect other regional values and perspectives) to look at the same issues and to consider them in other settings and from other vantages. This both respects the positions of other courts (the comity argument for limited effect of federal court decisions) and provides a better foundation for Supreme Court consideration in the event that circuits reach divergent conclusions about the law (the percolation argument for limited scope).¹⁴⁸

Moreover, the practice is clearly in keeping with the design of a system that has lower courts as well as a Supreme Court. After all, if a lower court decision were binding on other courts—if a decision from one circuit of the U.S. Courts of Appeals bound all of the courts in all of the other circuits—each lower court exercising that power would in effect enjoy the power of the Supreme Court.

That power would not be entirely on a par with the Supreme Court’s; the Supreme Court still could exercise its prerogative to review and reverse the decision of the circuit. However, the first circuit to rule on a matter would attain powers consciously allocated to the Supreme Court. This is especially evident given the enormous difference between the caseload of the Supreme Court and the circuit courts, for a great many matters—truly, for the vast bulk of broadly framed legal questions that come before the federal courts. Wholly apart from its implications for forum shopping, this realignment of authority is clearly at odds with the long-accepted structure of, and constitutional design for, the federal judiciary.¹⁴⁹

b. Limited Scope: Government Non-Acquiescence

The existence of regional courts and the deeply embedded practice of rejecting binding intercircuit precedent also fits judicial recognition of government agencies’ freedom to decide whether to accede to a decision of one circuit in activities taking place in (or having effect in) other circuits (the practice of “intercircuit nonacquiescence”).¹⁵⁰ This permits more politically responsive government officials to determine what weight to give a court’s decision outside the court’s assigned jurisdiction, a determination that encompasses the policy-based assessments of the value of national uniformity, the strength of the government’s position, the benefits of contesting an issue in other jurisdictions, and even the strategic questions respecting the support the agency might receive from politicians and from the public.¹⁵¹

The value of any of these practices may be debated, but it should not be open to debate that the structure of the federal judiciary—its separation into geographically distinct circuits and districts—cannot easily be reconciled with the use of nationwide injunctions outside extraordinary circumstances. The structure that supports rejection of binding effect for decisions outside the deciding circuit, both for courts and for government agencies, is at odds with virtually all aspects of nationwide judging at the lower court level.

c. Special Cases: Exclusive Jurisdiction

To be sure, there may be special cases (or, more accurately, categories of cases) in which uniformity in determinations respecting a matter is prized over the benefits of regionally limited decisions. This includes the benefit of allowing consideration of the critical issues to be informed by a larger number of judges from different perspectives, making judgments in circumstances framed by different factual settings. For example, some issues—such as the legality of a Federal Communications Commission allocation scheme for broadcast stations—have enough interconnections among various subparts that it may make sense to concentrate authority in one court, rather than having each part of the scheme contestable in the venue where a given station is allocated (or where allocation to another place blocks a station assignment).¹⁵²

For these special cases, Congress can choose to assign the sole authority of initial appellate review to a specific court. It has, for example, assigned exclusive jurisdiction over certain patent issues to the Court of Appeals for the Federal Circuit¹⁵³ and review of various administrative decisions to the D.C. Circuit.¹⁵⁴ Making the D.C. Circuit the exclusive venue for challenges to government actions that almost exclusively take place in Washington, D.C., could fit the broader pattern of geographically limited assignments of judicial power, but the D.C. Circuit’s exclusive authority plainly precludes suits that could be brought in other venues.¹⁵⁵

Statutory assignment of exclusive jurisdiction to one court represents a commitment—made by the constitutionally appropriate body through constitutionally specified means—to entrust nationwide authority over those matters to that entity and, necessarily, to allow some remedies with nationwide effect to issue from that court. So, for example, a decision of the D.C. Circuit respecting the legality of an agency action would have broader effect than a declaratory judgment from another court. If the D.C. Circuit determines that a rule adopted by the Federal Communications Commission exceeds the agency’s authority, that decision almost invariably leads to the court vacating the rule.¹⁵⁶

The creation of special courts with exclusive, nationwide authority, however, is exceptional. The general understanding, consistent with the design of geographically composed courts, is that courts below the Supreme Court do not have—and certainly should not presume to assert—power to impose their view of a given matter of law on other courts across the United States, or on government officials operating in and affecting persons in other parts of the United States.¹⁵⁷ This long-accepted understanding of the limitations on lower courts is squarely at odds with the assertions of authority inherent in most nationwide injunctions.

Injunctions Covering Non-Parties: Stretching Equity

The second restriction is that injunctions historically have been limited to protecting specific rights of parties before the court, offering relief deemed necessary to protect those rights when standard legal remedies (such as compensation after the fact) are inadequate.¹⁵⁸ Like other equitable remedies, injunctions were originally conceived as remedies to be deployed only in unusual circumstances and restricted to particular settings where courts could examine and balance the harms from granting or withholding that remedy.¹⁵⁹ Although the “special” nature of injunctions has diminished (or evaporated),¹⁶⁰ courts still understand that the remedy’s capacity to impose different and more daunting constraints on subjects’ behavior (including contempt punishment for their violation) cautions against treating injunctions as matters of course.¹⁶¹

Even though it has been approved as a remedy in class actions, the whole construct of the remedy is replete with signals that it is intended as a narrow, not a broad, tool—not one designed to cover an expansive array of potential actions affecting anyone anywhere whose concerns might prove similar to those of the parties actually before the court.¹⁶² In the same vein, Federal Rule of Civil Procedure 65(d)(2), which makes injunctive relief applicable to non-parties who have actual notice of the injunction and are “in active concert or participation with”¹⁶³ parties subject to the injunction, manifestly was designed to prevent circumvention of relief directed to specific persons and settings, not to create a new mechanism for limiting government.¹⁶⁴

Allowing such remedies as a matter of course in challenges to statutes, regulations, and similar broadly applicable administrative actions converts the injunction from a narrow mechanism for protecting individual rights in extraordinary circumstances to a tool for judicial control over political decision-making.¹⁶⁵ While a scalpel and a chainsaw both cut, they are vastly different instruments suited to extremely different uses. Arguments for the similar legitimacy of injunctive relief in both settings—narrow use to protect individual litigants’ rights and broad use to intervene in political conflicts on behalf of anyone affected by the currently prevailing legal rules¹⁶⁶—fail to grasp this essential distinction.

Concerns over potential misuse of equitable power, allowing it to be used as a vehicle for broad, discretionary judicial decisions respecting the actions of constitutionally empowered officials—officials whose positions make them responsive to political inputs either directly or indirectly—have been part of the fabric of constitutional discourse for the past 220 years. These concerns were raised at the outset by Anti-Federalists during debates over ratification of the Constitution.¹⁶⁷ And they remain central today, playing a prominent role, for example, in the objections to broad, nationwide (“universal”) injunctions articulated by Justice Thomas in his concurrence in Trump v. Hawaii.¹⁶⁸ Justice Thomas’ opinion expresses his apprehension that permitting broad injunctive remedies directed at government permits courts freedom, unfounded in law, to reshape decisions committed to the political branches.¹⁶⁹ He stresses that this freedom is contrary to the history of equitable remedies and to the (until recently) long-settled understanding of limitations on federal courts.¹⁷⁰

The Supreme Court emphatically made a similar point in United States v. Mendoza.¹⁷¹ There, the Court explained differences between government and other entities, including the fact that, for the government, even basic litigation decisions (such as whether to appeal or accept a lower court’s judgment) implicate political-policy determinations.¹⁷² Courts should not adopt remedies that intrude into the political-policy domain, either directly or by facilitating one administration’s or party’s ability to freeze policy determinations going forward.¹⁷³ Concerns about judicial overreach—about rules that transfer to courts powers that are constitutionally reserved to other branches of government, or that permit judges to exercise influence over political decision-making beyond what is necessary to adjudicate the rights of parties before the court—should be paramount in determining the scope of permissible injunctive authority.¹⁷⁴

Similarly, before Justice Antonin Scalia moved from the U.S. Court of Appeals for the D.C. Circuit to the Supreme Court, he cautioned that courts should be careful in issuing declaratory judgments respecting limitations on federal officials’ authority. Writing for the court, then-Judge Scalia remonstrated that “all the bases for nonmonetary relief—including injunction, mandamus and declaratory judgment—are discretionary.”¹⁷⁵ He then added:

[D]eclaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as injunction or mandamus, since it must be presumed that federal officers will adhere to the law as declared by the court. Such equivalence of effect dictates an equivalence of criteria for issuance.¹⁷⁶

Judge Scalia cited an opinion by Justice Hugo Black for the Supreme Court (albeit from a different context, involving intervention in state criminal proceedings) which had asserted that “even if declaratory judgment is not used as a basis for actually issuing an injunction, the declaratory relief alone has virtually the same impact as a formal injunction would.”¹⁷⁷ He then concluded that, consequently, “the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment.”¹⁷⁸

The notes of caution sounded by Justice Black, the Mendoza Court, Justice Scalia, and Justice Thomas all point in the same direction: judges should be wary of using equitable remedies in settings where the result is inevitably to expand courts’ reach into decisions more readily situated in the province of executive branch officials.¹⁷⁹ Further, despite then-Judge Scalia’s comparison of declaratory judgments to injunctions, the latter remedy, as noted earlier, plainly holds the prospect of greater restraint on officers subject to it.¹⁸⁰ That observation only increases the importance of the caution he, among others, recommended in shaping equitable remedies.

The APA’s “Set Aside” Provision: Directive as Distraction

The Administrative Procedure Act, however, has language that might be construed to authorize precisely the authority critiqued above, for courts to exercise broad control over executive branch decision-making. Section 706 of the APA instructs that in challenges to agency actions, courts:

shall hold unlawful and set aside agency action . . . found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(D) without observance of procedure required by law. . . .¹⁸¹

This directive to “hold unlawful and set aside agency action” that fails any of a series of tests for lawfulness could be read as if the required judicial response applicable to most successful challenges to administrative decisions is sweeping invalidation of those decisions’ products.¹⁸² On this reading, the further assumption could be made that a nationwide injunction is the proper mechanism for setting aside an administrative action found to contravene one of the listed items in Section 706.¹⁸³

This conclusion is contestable on two grounds. Most obviously, the conclusion that a nationwide injunction is the right means for setting aside an agency action found to be unlawful does not follow from the predicate that “set aside” means to hold the agency action globally unenforceable. A number of different remedies could be consistent with a conclusion of broad unenforceability. Notably, allowing a declaration of illegality to be enforced by having those targeted for enforcement enter pleas based on a court’s declaration of illegality—that is, providing a basis for resisting enforcement rather than precludingenforcement—would provide a different route to the same result.¹⁸⁴

The less obvious problem lies in the predicate that the set aside language in Section 706 necessarily requires that any agency action that fails one of the tests in that section must be globally invalidated. That reading certainly could be consistent with some pre-APA decisions that arguably treat administrative actions found to be unlawful as conclusively invalid in all instances.¹⁸⁵

That reading, however, is not the only or even the most natural reading of the APA’s instruction. When the APA was written and enacted, it was generally understood that courts would not apply laws that violated the strictures listed in Section 706 to parties before them.¹⁸⁷ Although some specific actions of administrative agencies could, indeed, be nullified by reviewing courts, those tended to be in the nature of ratemaking (or similar acts of utility governance) or administrative enforcement orders.¹⁸⁸

These sorts of administrative activity—those that initially were subject to “set aside” provisions—essentially involved agencies acting in lieu of judicial process, which historically had been used to implement constraints on common carriers for hire and on business activities in restraint of trade.¹⁸⁹ In that context, courts’ exercise of the equivalent of judicial supervisory authority over lower court actions could be seen as consistent with traditional approaches to the types of administrative actions being reviewed.¹⁹⁰ Moreover, some of the types of action subject to these provisions, like ratemaking, lent themselves to global constraints. After all, if a common carriage rate was wrongly set, nondiscrimination considerations (requiring uniform charges for customers, who often competed with one another) could not be accommodated with narrower remedies.¹⁹¹

Beyond that, because the language in the APA was also written at a time when rulemaking was far less common and its characteristic focus far narrower,¹⁹² the litigation that Section 706’s review provisions addressed was expected to involve requests to have specific decisions set aside or to have regulations that would apply to a narrow set of entities or circumstances declared unlawful and therefore not applied to them. These expectations are far removed from one of broad-based rule invalidation.¹⁹³

The expectations and understandings contemporaneous with the APA’s adoption also explain why the same “hold unlawful and set aside” language also instructs courts on what to do with agency actions based on findings found to be “unsupported by substantial evidence” or “unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.”¹⁹⁴ Those grounds for setting aside administrative actions hardly look like a fit with language comprehending—much less mandating—global invalidation of agencies’ policy-based decisions.

As noted above, a court such as the D.C. Circuit, where it enjoys exclusive jurisdiction over review of agency actions, stands in a different position. The impact of a court’s remedies in that setting necessarily will be more global—when it finds an agency action unlawful for reasons unrelated to the specific application of an agency rule, precedent, or practice, that court’s decision not to apply the law has much the same practical effect as a decision to hold the law invalid. Yet, even there, it will not be quite the same as deeming the rule or practice to be devoid of all legal effect.¹⁹⁵ More to the point, that impact is a function of the court’s monopoly over review, not of the APA’s direction on what reviewing courts should do. One last note on the special case of the D.C. Circuit: as authors of a review of its jurisdiction observe, until the 1960s, federal courts located in the District of Columbia were the only courts in the federal system recognized as having authority to issue writs of mandamus, the traditional tool for compelling action by other officers,¹⁹⁶ although equitable remedies (including injunctions) were available through other courts.¹⁹⁷

At the end of the day, there is little to support reading the APA as a universal directive for courts to abandon traditional constraints on equitable remedies.¹⁹⁸ This does not mean that courts are flatly prohibited from vacating rules found to be unlawful and remanding the matter before the court to an agency to revise (and to cure the defects identified). Yet, attention to limits on equitable remedies is consistent with the text and history of the law. The evident understanding contemporaneous with the APA’s adoption was that the APA did not displace ordinary tests for application of equitable remedies.¹⁹⁹ The Attorney General’s Manual, regarded as a reasonably authoritative statement of the administration’s contemporaneous reading of the law, makes that point explicit and also plainly states the broader point that the APA’s provisions on scope of review, which contain the “set aside” language relied on to support changing the law, were understood merely to “restate[] the present law as to the scope of judicial review.”²⁰⁰

Cautionary advice cited above for courts to tread lightly when issuing such remedies, injunctions most definitely included, was offered over a period of more than 40 years by Justices Black, Rehnquist (for the unanimous Mendoza court), Scalia, and Thomas.²⁰¹ The advice of those Justices is thoughtful and is consistent both with constitutional structure and the principles underlying and circumstances surrounding adoption of the APA. That counsel, which is in keeping with—and certainly not clearly contradicted by—the APA’s text, should be heeded by federal judges today.

Conclusion

The principal arguments advanced to support nationwide injunctions—especially broad injunctions against the United States—are at odds with almost every important aspect of our constitutional structure and the design of our federal judiciary. Conscientious performance of judges’ duty to say what the law is in appropriate cases does not require remedies that extend beyond the issuing court’s domain.

The traditionally respected limits on the scope of federal court remedies reinforce de Tocqueville’s reflections on the operation of the American legal system with regard to courts and constitutionally designed law-making authority. De Tocqueville’s comment—that “[w]henever a . . . judge . . . in a tribunal of the United States . . . has refused to apply any given law in a case, that law loses a portion of its moral cogency. . . . and similar suits are multiplied until it becomes powerless”²⁰²—further buttresses his discussion of the way the limited scope of judicial relief (and limited occasions for invoking judicial review) fit broader governance structures for America.²⁰³ The approach de Tocqueville recognized as peculiarly fitting the restricted role of the courts and the commitment of political decisions to other branches stands as a fundamental contradiction of the use of nationwide injunctions.

Generally, injunctive relief should only bind parties to a proceeding, and courts should tailor remedies with that in mind. A presumption that injunctions against the United States run in favor only of the parties to the proceeding would be consistent with the precepts underlying this approach. Moreover, it would help return judicial review to the scope and function initially understood and long accepted and would restrain some of the more blatantly political aspects of a developing practice of facial invalidation of laws and regulations as a matter of course.

Of course, where appropriately raised, courts should decide questions respecting the lawfulness of executive actions and the constitutionality of legislation. But the remedy for actions found to exceed legal authority normally should be restricted to the parties before the court. Where broader reach is required to give practical effect to the court’s decision as to the parties before the court (and is justified by the traditional balance of considerations for granting equitable remedies), legislation should specifically authorize broader relief and courts should ascertain the minimum scope required for injunctive relief.

Similarly, just as declarations of rights by a district court or a circuit do not bind courts outside the district or the circuit, injunctions generally should be limited to the geography that defines an issuing court’s jurisdiction. This general rule does not cover judicial directions to parties violating contract rights or property rights (think of patent infringement) that extend outside the geographic jurisdiction of a court—the sort of problems that arise in private suits resting on federal law or on private suits brought under diversity jurisdiction. It does, however, especially apply to commands to government officials, which is the particular focus of this Article and the setting in which interference with national governance structure is most likely.

Even in the context of suits against the government, special exception should be made for temporary relief in cases where a stay of regulatory action is both well-grounded legally and is necessary to avoid irreparable harm to the party bringing the action—not only because of the action’s application to the moving party, but also because of effects from its application to other competitors subject to the same regime. This exception does not make “complete relief” the overriding consideration, but does recognize the importance of preserving opportunities for meaningful judicial review. While some regulatory actions address problems that require immediate action, administrators have incentives to overstate the benefits of immediate action and to understate the impact of such action on limiting effective review.

Such special circumstances aside, the general rule should be that nationwide injunctive relief is beyond the authority of lower courts. Limiting use of this broad tool of judicial control will restrain interference with the constitutionally assigned roles of Congress and the Executive, reduce incentives for judicial forum shopping, avoid exacerbating political intrusion into the functions of the courts, improve adherence to rule of law values, and enhance respect for our governance institutions, not least our courts.

Category: Print Issues

Nationwide Injunctions' Governance Problems: Forum Shopping, Politicizing Courts, and Eroding Constitutional Structure

Share this article