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.

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  1. One related problem is that federal judges have consistently misread the statute that governs venue in most cases where the federal government is a defendant. Where the plaintiff lives is not usually a basis for venue (as opposed to where the events happened or the defendant lives), but Congress decided to allow such venue against the federal government. The House proposed that venue be proper in any district in which ANY plaintiff resides. The Senate thought this went too far and amended the bill to allow such plaintiff-resides venue (in addition, of course, to the other more normal grounds) in a district in which EACH plaintiff resides. The House went along, so that is what the statute says. (It’s says literally “the plaintiff” not “each plaintiff,” but the Supreme Court had already repeatedly told Congress that, in statutes of this sort, it would read “the plaintiff” or “the defendant” to mean (respectively) each plaintiff or each defendant where there are multiple parties.) Lower federal courts, however, have read the statute as if the House’s language had passed. So. for more than thirty years, opponents of federal initiatives have been cherry picking districts with favorable judges to litigate nationwide issues. This limits the bite of a rule that relief be given only to parties, as plaintiffs can bring a nation worth of parties before the federal judge of their choice.

    1. How could it work if plaintiffs had to find a district in which they all reside? Plainly that would just not exist and so be an insurmountable bar to actually filing suit.

      Judge shopping is real, but your reading here widely misses the mark in terms of fixing it in a workable fashion.

      1. They are allowed — as most other civil plaintiffs are — to sue in either the jurisdiction a defendant resides in (there are a few tricks around what counts as “a defendant” but it’s a decent first approximation) or in any district in which a substantial part of the events giving rise to the claim occurred or a substantial part of the property that is the subject of the action is situated. Or you can sue on your own without joining as a co-plaintiff someone else who lives in a district with a better judge. Or, if your venue choice makes sense and doesn’t seem abusive, the government can waive any venue objection, as venue is not jurisdictional and is a very easily waivable defense. I know that, back in the day when I litigated for the government, I made a deliberate decision to waive a venue defense on a number of occasions for just those reasons. Reading the venue statute in accordance with its text would thus be workable, albeit not quite as convenient to some plaintiffs and not nearly so conducive to abusive judge shopping.

        1. If the Federal Government is a defendant, isn’t that everywhere?

          Anyway, preventing plaintiffs from joining is pretty extreme.

          1. Generally speaking, a federal official sued in his official capacity is deemed to reside only in the district in which his duties are to be performed, so cabinet level officials (usually, though not always, the proper defendants) are deemed to reside in D.C. for purposes of this statute.

            My view of the statute wouldn’t prevent plaintiffs from joining. There would always be at least one, and often more than one, district where venue was proper as to all. What it would limit (not eliminate, given other issues) is the ability of multiple plaintiffs to simultaneously join AND stroll through every aisle in the federal venue store to pick out the division that has one judge who is known or believed to be an outlier favorable to plaintiffs’ position. I’d view that as a feature, not a bug.

            To be sure, in some cases my view would make it somewhat more inconvenient for multiple plaintiffs to sue together. But not as often as you might think. And, on the other side, I have known cases where plaintiffs sought out a such inconvenience, with DC based counsel choosing to file in a state far away where they had to fly to every hearing and hire local counsel (I’ve known this to happen in both red and blue state cases). The inconvenience factor in most cases simply doesn’t
            cut all that strongly compared to forum shopping.

  2. It strikes me that the problem of national injunctions arises primarily because we have some judges who are unclear of just what the job of judging entails – to decide actual cases and controversies – and unclear on the limits of a judge’s authority. Another possible remedy for this is to start impeaching judges who engage in gross overreach by imposing these nationwide injunctions. Just a thought.

    1. Not going to happen as long as the particular overreach is popular with 34 Senators.

      1. Or with back-water federal judges who are supported by out of control appellate courts.

  3. I agree that national injunctions should be disfavored. But limiting remedies in all cases to the parties goes too far.

    1. The simple solution is to limit it to anyone in the judge’s jurisdiction. Just like how the 5th Circuit can’t make decisions for the 10th Circuit, lower level judges should only have the power to issue injunctions that cover the specific geographic areas they cover.

      1. Judgments (and a court of competent jurisdiction) usually bind parties though, not areas.

        In most cases, this is proper and comports with our sense of justice because we don’t think a party should be able to escape an injunction just by doing the enjoined action outside the district.

        For (goofy example) instance, if a company was ordered not to retaliate against an employee whistleblower, it’s hardly a defense to say “well, the CEO flew to the next State over and then fired him and came back”.

    2. One at least partial solution to the national injunctions problem, would be for SCOTUS to get off it’s ass and be more generous with taking original jurisdiction cases.

    3. limiting remedies in all cases to the parties goes too far

      Because ?

      1. Because if that is taken literally, there would need to be hundreds or even thousands of suits to enjoin obviously unconstitutional laws.

        1. “Because if that is taken literally, there would need to be hundreds or even thousands of suits to enjoin obviously unconstitutional laws.”

          Or just one appeal to the appellate courts and one appeal to SCOTUS

          1. 1. If a trial court can’t grant a national injunction, a court exercising appellate jurisdiction can’t either. Appellate courts can’t go beyond the record. Plus, you would have to wait for cases to go up to appeal before effectively enjoining even a clearly unconstitutional action.

            2. The Supreme Court has a very limited docket.

            There has to be a injunction power beyond the parties to the case, and it has to be limited. That’s the conundrum.

          2. Or just one appeal to the appellate courts and one appeal to SCOTUS

            The winning party cannot appeal a judgment just to get an opinion by a court of larger jurisdiction. That’s not a valid grounds for appeal.

            The losing party might chose not to appeal for any number of reasons, possibly strategically to avoid a larger injunction, but also just as a matter of priorities and resources.

            This is a conundrum that might lead to there never being a vehicle for the appellate courts or SCOTUS to even address the issue, given Art III standing rules.

          3. “Or just one appeal to the appellate courts and one appeal to SCOTUS”

            So… five to eight years to get an unconstitutional law enjoined.

            Imagine, if you will, a time at some unspecified future date where President Commie Leftwing has not only captured the Oval Office, but also has lefty stooges running the House and Senate.

            They pass a law making Republicanism a crime, and start locking them up. There’s a lot of them, so the prisons are filling up; they make it a capital offense. The Republican Party of Iowa gets to the courthouse first, and files a federal lawsuit seeking to enjoin the statutes in question. Two years in, the case is heard and the Republicans win an injunction that applies to the Republican Party of Iowa only. The case is appealed to the circuit court, and 3 years later, the surviving Republicans win there, too. (In the interim, Commie wins re-election in a landslide, carrying every state except Iowa.) The case is appealed to the Supreme Court, and the next year, the USSC takes the case. The injunction is granted nationally. It’s legal to be a Republican again.

  4. Seems to me that are at multiple problems with National Injunctions.

    First – District Judges are giving relief to parties not properly before them.

    Secondly – They are expanding the “controversy” beyond the 4 corners of the case to reach a general conclusion rather that trying to resolve the case on the most limited grounds.

    Thirdly they are “poaching” on other judges territory in other circuits which may have different and more applicable precedents.

    While Congress probably should act, it probably won’t.

    The Circuits could act by remanding these cases for more tailored decisions. Some Circuits are more likely to do that than others and the plaintiffs will probably avoid those to the extent possible

    The most likely resolution would be for the Supreme Court to impose some limits based on jurisdiction or other grounds. That is likely to take a long time and require a number of cases.

  5. It’s not obvious to me that the national injunction is equally threatening to both parties. On average, national injunctions are likely to be imposed on the federal government, to prevent it doing something that it would like to do. Not so much on private persons. And on average, though the Rs are hardly libertarian, the Ds are the folk who are most eager that the federal government be a-doing things.

    This slope in the playing field is temporarily balanced by there being more pro-D / anti-R lunatic power crazed judges. But the pro-R / anti-D judges will learn from example in time.

    None of which is to say that national injunctions are a good thing, merely that in the long run, national injunctions are more likely to rain on the D parade than the R parade, assuming 50-50 control of the executive branch.

    1. “And on average, though the Rs are hardly libertarian, the Ds are the folk who are most eager that the federal government be a-doing things.”

      I don’t think this is accurate. When they have the power to decide what the federal government does, the R’s show just as much restraint as do the D’s. The difference is that when the D’s are out of power, they talk about the things they’d be doing with the federal government instead of what the R’s are doing, while when the R’s are out of power they talk about shrinking the federal government.

      When they run things, R’s make the federal government get bigger.

    2. I mean, PPACA and DACA were both subjects of national injunctions. So this theory seems untethered to fact.

  6. Who should address the problem? Why, a friendly district judge of course.

    Spend a little time forum-shopping to find a sympathetic district court judge. Then file some clever lawsuit seeking nation-wide injunctive relief prohibiting all federal district judges from issuing nation-wide injunctions (thus this being the last nation-wide injunction). Bingo-bango … problem solved.


  7. I’m not clear on the premise that Congress can order courts about injunctions. Injunctions are elements of judicial power, and the Constitution vests judicial power in the Supreme Court.

    I think your “fix” needs to come from SCOTUS, not Congress, and if SCOTUS is not so inclined, I think that’s proper. In the case of statutes that are ruled unconstitutional, litigating it again and again in every federal district is wasteful and dumb. If it’s unconstitutional, it’s unconstitutional everywhere. If it’s not unconstitutional, it’s not unconstitutional anywhere.

    Maybe the change you need is allowing district courts to certify national injunctions straight to SCOTUS for review, and leave out the intermediate courts.

    1. Congress can set the domains of the courts for topics, and create subordinate courts to the Supreme Court. Is it beyond Congress’ power to say your injunctions end at the borders of your district or circuit?

      1. ” Is it beyond Congress’ power to say your injunctions end at the borders of your district or circuit?”

        I think it is, yes. It’s a separation of powers question, and the judicial power is vested exclusively in the Article III courts.
        So, for example, if your proposed statute goes through, and a court chooses to ignore it on separation of powers grounds, I think the court is right to do so.
        That isn’t necessarily the end of it… Congress has levers to pull. They can’t unfund the judges’ pay, but they can unfund everyone else’s, or even dissolve the district courts, if scorched-earth seemed like a reasonable approach (It doesn’t to me, but some of these guys in office lead me to never discount the possibility of stupidity on an epic level.)

        1. I agree with you, James, that it would be a bad idea (also unconstitutional? who knows?) to provide that injunctions end at a district’s or circuit’s border.

          But I don’t understand that to be the proposal (although I can see how describing the issue as that of “national” or “nationwide” injunctions can give that impression).

          The operative language of the pending legislation is: “No court of the United States . . . shall issue an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.” Nothing at all turns on geography or district or circuit borders in this proposal.

          I’m not sure whether that proposal is or is not a good idea.

          1. “But I don’t understand that to be the proposal (although I can see how describing the issue as that of ‘national’ or ‘nationwide’ injunctions can give that impression).”

            You’re conflating two different things, and incorrectly assuming that I am too.

            A district court’s authority to act comes from the Constitution, not Congress, and limits of their authority come from the Constitution, not Congress. So if Congress tries to enact a limitation on the judicial authority of the courts, it doesn’t necessarily have any effect.
            The judicial power of the lower courts, on the other hand, IS limited by SCOTUS. So if SCOTUS says “no more injunctions of this kind”, the district courts are bound. If Congress says “no more injunctions of this kind”, a district court may blow a raspberry in the general direction of Washington D.C. and proceed to issue an injunction.

            Now, if you can’t get SCOTUS on board and you don’t want to wait long enough to appoint at least 5 new justices who see things your way, you could also do it by Constitutional amendment.

            Or, alternatively, Congress and the executive agencies could refrain from taking actions that need to be enjoined.

            1. Article 3 of the constitution gives Congress the power to create “such inferior Courts as the Congress may from time to time ordain and establish.” and the ” the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

              Congress has established special subject matter courts (for example the infamous Federal District.) Congress likewise could restrict injunctions against the United States to a specific venue such as a special Circuit Court of even the Supreme Court.

              I think Congress has power to define the jurisdiction of the inferior courts.

              1. “I think Congress has power to define the jurisdiction of the inferior courts.”

                “You can’t make any national injunctions” isn’t jurisdiction. It’s judicial power.

                Again, separation of powers.
                Congress has levers. Flatly prohibiting use of judicial power isn’t one of them, unless they go nuclear and abolish the court in toto.

  8. Very cool information. More information here https://en.wikipedia.org/wiki/Injunction

  9. 28 U.S. Code ? 2284 requires that actions for injunctions in certain circumstances must be heard by a three-judge court. That’s been the law for a very long time, and I don’t recall any ruling that the statute is unconstitutional.

    As I remember, during the travel ban controversy, one District Court ruled that the ban at issue was valid, but by then another District Court had already ruled that the ban was invalid and had issued a nation-wide injunction, so the second court’s ruling was a nullity. Thus, one court’s ruling that granted affirmative relief to the plaintiff(s) trumped (sic) a contrary ruling by another court of the same level. That doesn’t seem right. What if the second court had issued an injunction requiring the US Govt to enforce the travel ban, which another court had enjoined the Govt from enforcing? In a democracy, shouldn’t Congress have the power to address such issues?

    1. “Thus, one court’s ruling that granted affirmative relief to the plaintiff(s) trumped (sic) a contrary ruling by another court of the same level. That doesn’t seem right.”

      The legal doctrine you want to Google is “issue preclusion”.

      1. Not a complete answer if the parties are different and cases like Holland v. National Mining Ass’n
        309 F.3d 808 (D.C. Cir. 2002), are correct.

  10. The legislation wants to limit relief to people who join together as named parties or who become class members under the protections and process of Rule 23. A possible problem though is playing Whack a Mole with ideas that plaintiffs can use to expand who counts as a party while bypassing Rule 23. One such idea, which I discuss at the top of this comment board, is the lower courts’ erroneously broad reading of venue to allow out-of-district plaintiffs to tie into the district or division with the desired judge. A second idea they can use is associational standing. If there are one or more individuals who would themselves have standing (a contentious issue that I don’t address here), the way the lower courts have developed associational standing give defendants few clear ways of fending off standing for people claiming to be an association representing all those individuals.

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