Should There Be Three-Judge Panels for National Injunctions

A proposal to limit state AG (and other) forum-shopping for national injunctions.

There is widespread concern that it has become too easy for ideologically motivated plaintiffs–such as state attorneys general of the opposite party of the sitting president–to seek and obtain nationwide injunctions against federal policies they oppose by selecting the right district court in which to file the suit. Thus conservative plaintiffs file suit in single-judge divisions in Texas, while liberal plaintiffs file suit in uniformly liberal divisions in California. Such forum shopping can increase the likelihood of obtaining a favorable judgment and, with increasing frequency over the past decade, an injunction that halts a federal policy nationwide.

One way Congress could address this is by enacting legislation requiring that suits that seek such relief be filed in particular places. Under the Clean Air Act, for example, suits challenging regulations of nationwide scope and application generally must be filed in the U.S. Court of Appeals for the D.C. Circuit, whereas suits against more localized decisions (such as individual permits or state implementation plans) get filed in the relevant district courts.

In a Bloomberg essay, Professor Alan Morrison suggests another potential fix: Requiring suits that seek nationwide injunctive relief against the federal government to go before three-judge panels. This approach is used for some other types of litigation, such as some election-related lawsuits, and used to be required for suits seeking to enjoin federal laws on constitutional grounds. Morrison thinks it might also make sense here.

From Morrison's article:

Eliminating forum shopping at the district court level is a much larger and perhaps unsolvable problem, but Congress can significantly lessen its effects on national injunctions by enacting a statute—providing that no injunction against a federal agency or officer may benefit any person beyond the named plaintiffs unless it is by a three-judge district court, which includes at least one circuit judge.

Under that statute, a plaintiff seeking relief for others would have to include a request for a three-judge court in the complaint, and the district judge to whom such a case was assigned would have no power on their own to issue any form of injunctive relief beyond the named plaintiff.

The statute should also provide that further review of a grant or denial of either a preliminary or permanent national injunction shall be by a writ of certiorari to the Supreme Court, filed within 30 days of the order to be reviewed. . . .

Under the proposed statute, forum shopping would continue, and opponents of actions by the Biden administration would probably file in the Fifth Circuit, just as those who disagreed with the Trump administration often chose the Ninth Circuit.

The biggest change would be that the law would require two judges to issue an injunction that extended beyond the immediate parties.

This statute would also be consistent with many federal laws that provide for direct review of an agency's final rule in the courts of appeals, where a stay can be issued only by at least two members of a three-judge panel.

Details need to be worked out, but the first step is to recognize that the Supreme Court will not and cannot solve this problem. Congress must start addressing it directly, hopefully by enacting mandatory three-judge court legislation for national injunctions.

I am sure there are some non-obvious downsides to this approach, but it seems like a proposal that merits serious consideration.