The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

The National Injunction Arrives at the Supreme Court

A Bagley-Bray amicus brief in Trump v. Pennsylvania.


The national injunction has landed again at the Supreme Court, and maybe the third time's the charm. Nick Bagley and I filed an amicus brief today, with the able assistance of Donald Burke and Zachary Ferguson at Robbins Russell. Which side we take is not a mystery. We wrote together about this subject in the Atlantic, and we each testified earlier this month before the Senate Committee on the Judiciary. But even for those who have been following the debate there may be some new twists. We take up the following questions:

Is the national injunction novel? (Yes.)

Is the national injunction supported by equity's tradition of group litigation? (No.)

Is the national injunction authorized by the APA? (No.)

Is the national injunction good policy? (No—and though that conclusion will be unsurprising, we also give new arguments and new examples of the chaos caused by the national injunction.)

Finally, was a national preliminary injunction needed in this case? (No.)

If you want to read the brief, it's here. And, as always, you should read the other side. (I'll update this post with links to any briefs devoted to the national injunction issue in support of respondents.)

NEXT: Bernie Sanders Cancels Speech on Racial Justice Because He's a "White Jewish Man"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Not being a lawyer, seems to me the primary argument against national in junctions is circuit wars, which can't happen normally because cases are tried and appealed in individual cases. So it must be for class actions, preventing national laws from taking effect, etc.

    Does the same thing happen in state courts, where one court issues a state-wide injunction and another court begs to differ?

  2. National injunctions should die.

    1. Be staked through the hart, have it's head cut off, the mouth stuffed with garlic. The body should be buried on hallowed ground, and the head burned and the ashes scattered to the winds at least 500 miles from where the body was buried.

  3. The argument I liked most was that nationwide injunctions short-circuit the legal process by not having more courts consider the legal question(s) by judges of different judicial philosophies and perspectives. Why? Because when the question comes before SCOTUS, I think we want them to have the benefit of a very developed record to make their judgment. Since there is no appeal to their decision, better they get helped by having a full record to decide upon.

    I was less persuaded by the 'it makes for bad government' argument. While true, that is a feature, not a bug, of nationwide injunctions.

  4. Misnomer, perhaps. An injunction with national effect can run against a national corporation. Enjoining nationwide application of a federal rule makes sense, otherwise you'd have to file suit in every relevant district, yes? Allowing for the possibility of intercircuit nonaquiescence doesn't preclude the possibility that precedent or the view of the merits in District X makes the likelihood of prevailing on the merits in District Y highly likely. (Which is presumably the logic in a "national" TI.)

    The longstanding practice in the DC Circuit seems to suggest a nerve-center, principal-place-of-business logic. Where the decisionmaker is within the jurisdiction of the court. Perhaps that's a healthy middle ground.

    1. Not quite. In the pre-national-injunction era, an injunction barred the government from enforcing the federal rule:
      a - against that defendant in any jurisdiction
      b - against other defendants within the District.
      So national corporations only had to file suit in one District to be protected.

      Yes, this creates a greater potential for circuit conflicts. The article above considers that a feature, not a bug.

      1. Misunderstanding, perhaps. My analogy is that an injunction that runs against a national corporation has national (beyond the district and the circuit) effect, based on the jurisdiction over the corporation. Company X might be enjoined against using a dubious sales practice outside of the court's geographic jurisdiction and against nonparties based on PJ over the corp. in their home district.

        So if prior to "national injunctions," you needed complete identity of parties to enforce outside of the district, presumably the distinction was that the decisions on rules were as-applied, at least when read outside the district. Say the court in District X bans enforcement of anti-flintlock rule against Dan'l Boone, and within it's own remit, the other Kentuckians are free to enjoy the benefit; Davy Crockett, however, in Tennessee only gets the benefit of non-compulsory precedent of an as-applied challenge. Just a guess, likely wrong.

        Point being, the nationwide fiat of a District Judge perhaps isn't really the thing at issue. Its more the power of personal jurisdiction over an administrator in the federal government, and how that differs from a corporate administrator of a company with PPB in the district of the court (against whom a "nationwide" injunction could clearly run). Equitable powers come from jurisdiction over the individual, and a federal officer is perhaps somehow not a citizen of the place where they are, at least for federal rulemaking purposes.

        Top of the head, likely wrong, don't rely.

      2. The problem here is that in these Judgements are against the federal government, which by necessity is located in every district, so theoretically an injunction in district should be enforceable everywhere it does business (in every federal judicial district in the country - because every judicial district has at least one district court, which is part of the federal government).

        But it doesn’t work the other way - if a petitioner for an injunction fails in one district, there is nothing binding other petitioners in other judicial districts. It is very one sided, but really has to be, because we can’t have GM winning against one plaintiff, then taking that win to estop other, unrelated, plaintiffs from suing them. The other plaintiffs get their own day in court instead.

        But the problem with national injunctions of this sort is that you could have 100 plaintiffs in 100 districts across the country sue the federal government, and given the political spectrum of the various judges, probably find several judges who agree with the plaintiffs. Or maybe the government attorney was just having a bad day. The federal government Is then estopped nationally, even if it would win 99 out of 100 cases - it is that one loss that loses the case nationally, at least until overturned on appeal. But of course, the parties playing this game rarely have to try cases in 100 jurisdictions before getting their national injunction - they just forum shop instead, picking courts that they believe that they have the best chance winning in (recently, Hawaii has been popular for immigration cases).

        1. Perhaps thinking of it in terms of jurisdiction over the administrator (whether EPA or GM) is the best limitation on that kind of non-mutual offensive collateral estoppel. (At least in suits seeking equitable relief, and not damages.) Plaintiffs can't forum-shop for a favorable ruling to deploy nationwide -- to estop other parties, they're compelled to have a judgment from the place with the most relevant interests, similar to conflict of laws analysis.

          As for injunctions simpliciter, there's an old legal fiction that the sovereign can't be nonsuited for not showing up, because they're ubiquitous. But injunctions are equity, and equity is based on jurisdiction over actual flesh and blood human beings. Perhaps that's the answer. An injunction could run according to the FG's enforcement powers in the judicial district. If the FG's agents in the district can enforce a statewide, regional, or national rule, the injunction runs to that level.

          It would make injunction practice more congruent with the history of equity, but it still leaves the conundrum of DC Privilege. Whether the DC Circuit should have that kind of power.

  5. So, what happens if you get a national injunction in one circuit, and a writ of mandamus in another circuit ordering you to engage in the enjoined conduct?

    1. That's the interesting question, isn't it? Although it could just be an injunction in both. You can get an injunction requiring certain actions. I actually accomplished that in Wisconsin in the time period right after Act 10 (taking away most collective bargaining from most public employees). A Dane County (liberal center of the state) judge enjoined several state officials from enforcing it. We brought separate actions in different counties against local government entities who bargained with their unions in violation of Act 10, thinking the Dane County decision "struck down" the law. They quickly got an education in the scope of county court jurisdiction, with every case we brought successfully invalidating the illegal CBA (even before the State Supreme Court reversed the Dane County judge).

      And we also got a separate injunction against the state employment commission requiring them to hold recertification elections for every union up for that except the one involved in the Dane County litigation.

Please to post comments