The Volokh Conspiracy
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A Simple Defense of Nationwide Injunctions
Nationwide illegality by the federal government requires a nationwide remedy.
The main issue addressed in yesterday's birthright citizenship oral argument before the Supreme Court was whether federal courts should have the power to issue nationwide injunctions against illegal government policies, as opposed to injunctions limited to the parties to the case, or perhaps to a particular state or local government. As I see it, there is a simple, but powerful reason why courts must have the power to issue such injunctions, at least in some cases. In many situations, there is no other way to stop widespread illegality, especially that perpetrated by the federal government. Nationwide wrongs require a nationwide remedy.
Justice Ketanji Brown Jackson put it well in yesterday's argument:
[T]he real concern, I think, is that your argument [meaning that of the federal government] seems to turn our justice system, in my view at least, into a "catch me if you can" kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights.
Justice Kagan says let's assume for the purpose of this that you're wrong about the merits, that the government is not allowed to do this under the Constitution. And yet it seems to me that your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to… file a lawsuit, hire a lawyer, et cetera. And I don't understand how that is remotely consistent with the rule of law
This is especially true when, as in the birthright citizenship case, there are hundreds of thousands of victims of the government's illegal policies, and many of them are poor or otherwise unable to readily file a lawsuit.
Moreover, even if all current victims file lawsuits and win, the unconstitutional policy will remain in place with respect to future victims (in this case, future children born to undocumented immigrants and those in the US on temporary visas). Thus, the illegality - and the need for endless lawsuits to combat it - will continue on into the indefinite future.
Imagine if school desegregation litigation rules required each individual black student (or her family) to file a separate lawsuit in order to be able to attend a racially integrated school. Black students whose families don't file a lawsuit can kept in segregated schools, even if courts rule they are unconstitutional. By that "logic," we might well still have legally segregated public schools to this day.
As discussed in the oral argument, these problems can sometimes be partially overcome by class action suits. But class action certification rules will often make it difficult or impossible to include all the victims of a large-scale injustice in a single class, or indeed in any class. Moreover, the logic of the government's case against nationwide injunctions is that courts have no power to compel defendants to respect the rights of third parties. By that reasoning, class actions are also suspect. After all, they necessarily include remedies for third parties (members of the putative class who didn't file a lawsuit themselves, and in many cases may not even know about the class action's existence).
Perhaps such injustices must be accepted if that is clearly required by the text and original meaning of the Constitution. But it isn't. Article III of the Constitution states that "the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, [and] the Laws of the United States," and "to Controversies to which the United States shall be a Party." Such cases - and especially "controversies" - can obviously sometimes raise issues that go beyond the interests of the particular people who filed the lawsuit in question. And, as the amicus brief by legal historians effectively summarizes, broad injunctions that extend to third parties (sometimes even covering thousands of people) have been imposed by courts throughout American history.
For reasons summarized in a previous post, I am not much impressed by the argument that it's dangerous if one rogue federal judge can impose an injunction blocking a policy nationwide. If the judge is indeed a rogue outlier, and his or her ruling is indeed badly wrong, it can be overturned on appeal, if necessary on an expedited basis. Appellate courts have substantial discretion to swiftly stay injunctions, when needed. It is much less of a burden for the federal government - with its vast resources - to seek such appellate review than for many thousands of people to have to file individual lawsuits to vindicate their rights. And, again, that's especially true if many of the victims of the government's illegal actions are poor or otherwise unable to easily file a suit.
I am also not impressed by the Trump Administration's argument that there is an "epidemic" of an especially large number of nationwide injunctions blocking their poliies. As I explained to the New York Post when asked about this point:
Trump administration attorneys argued in a petition to the Supreme Court that "Universal injunctions have reached epidemic proportions since the start of the current Administration."
"What we have is an epidemic of nationwide illegal actions by this administration, and in fairness, to some degree by the previous administration as well," Somin argued.
"If you engage in rampant illegality that's nationwide in scope, then you can expect to get nationwide remedies imposed against you."
Nationwide wrongs require nationwide remedies. For those keeping track, I also supported some nationwide injunctions against the Biden Administration, as in the case of the student loan forgiveness litigation.
In fairness, I am, at this point, not a completely disinterested observer when it comes to nationwide injunctions. As I told the Post, the Liberty Justice Center and I are seeking a nationwide injunction in the lawsuit we filed against Trump's "Liberation Day" tariffs. Like the birthright citizenship cases, our case challenges a large-scale illegal policy that victimizes millions of people, making a universal injunction the only feasible remedy that can fully put an end to the illegality.
But, for what it is worth, I have been a supporter of universal injunctions since long before I became involved in this case. And I am doing the tariff case pro bono. So it cannot be said that my support for universal injunctions is based on narrow self-interest - except in so far as I (like most Americans) will benefit from lower prices for foreign products, if the Trump tariffs are struck down!
