Who Should Address the Problem of National Injunctions?

Time for Congress to Act

Nick Bagley and I have a piece today in The Atlantic. We address the legality problems and policy problems with the national injunctions, and we encourage Congress to pass a bill that would affirm the principle that federal courts should give remedies for parties, not for non-parties. One bill that would do this has already been reported out of the House Judiciary Committee--the Injunctive Authority Clarification Act of 2018. A point that Nick and I particularly stress is that the national injunction is not partisan in its orientation. It is not even alternatingly partisan, as if it favored Republicans in 2015 to 2016, presently favors Democrats, and will favor Republicans again when there is again a Democratic president. In candor, it did favor Republicans in 2015 to 2016. But it is not an unambiguous gift to Democrats right now. On the contrary, right now, today, major priorities of the current administration are imperiled by the national injunction (e.g., the "travel ban")--and so are major priorities of the last administration, especially the Affordable Care Act. And in the long run, everyone will lose from the destabilization of our constitutional structure that will come from a norm of national injunctions.