Misinterpreted Power: National Injunctions

As more of the nation’s policy is adjudicated and forged not in the legislature but the judiciary, judicial remedies have invited more scrutiny. One of the most controversial remedies is the exercise of equitable authority in the form of a national injunction. Injunctions have affected each side of the political aisle as both the Obama and Trump Administrations have had major policies enjoined.^[1] This post will examine a brief history of the national injunction, injunctions faced by the Obama Administration, and injunctions faced by the Trump administration. The post will conclude with why the practice should be ended.

Injunctions trace their origins from American courts to English courts of chancery.^[2] Since there was only one English Chancellor empowered to provide relief there was no chance of conflicting injunctions.^[3] The custom was that an injunction would limit the defendant’s conduct toward the plaintiff, not the defendant’s conduct toward the world.^[4]

Unfortunately, this practice has mutated into a reflex to challenge disfavored policy. This is partially due to our current political climate. As Congressional disfunction has incentivized the executive branch to promulgate national policy, the judiciary has become the most rapid check available. The Founding Fathers believed “[a]mbition must be made to counteract ambition,”^[5] yet current Congressional gridlock has weakened the very branch Madison intended to be the strongest.[6]

In addition, it may now be easier to seek a friendly judicial venue and persuade one judge for relief than work through the legislative process as intended. The progression from one English Chancellor to over 1,000 American district court judges offers plenty of friendly opportunities to every political partisan.[7] The more people who enjoy power, the greater the opportunity for abuse of that power. As current U.S. Supreme Court clerk^[8] Zayn Siddique explains, every federal district court judge can issue a nationwide injunction through Federal Rule of Civil Procedure (FRCP) 65[9] and accompanying Supreme Court precedent.[10] Neither Rule 65 nor precedent^[11] have limited the scope on injunctive relief or laid out guidelines on when a national injunction is appropriate. As long as courts have personal jurisdiction over parties (a certainty when federal government actions are being enjoined), a court can issue the national injunction.^[12] This has encouraged forum shopping among litigants. As discussed below complainants of each political party seeking to challenge an opposing administration’s policy will flock to politically convenient forums for favorable injunctions.

Major policy achievements of both President Obama and President Trump have been successfully challenged.^[13] National injunctions enjoined President Obama’s policies on healthcare, immigration, and transgender students in public schools.¹⁴ President Trump’s entry ban, attempts at withholding federal funds from “sanctuary cities,” and revocation of deferred action status were similarly enjoined.^[14] Whether one loves or hates these policies the Founders did not intend policy to be solely molded in the courts.^[15] Elections have consequences and political energy should be channeled to the ballot box, not the courtroom.

Injunctions also cut against development of law in the federal system,^[16] a critical feature not bug of the system. Consider a hypothetical situation in which multiple circuits issued conflicting injunctions. How would a federal official avoid contempt sanctions if one circuit court orders a law to continue nationwide while another circuit orders a law enjoined nationwide?  What circuit injunction would hold more weight? A possible solution is explored by Professor Michael Morley using FRCP 23 (b)(2)[17] to certify possible plaintiffs in a nationwide class.^[18] This approach could satisfy jurisdictional and standing issues. As the Supreme Court explained in Doran v. Salem Inn,[19] “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute.”^[20] However, a class certification procedure may be gamed by judges who wish to engineer a desired result against a particular policy they loathe. If existing solutions sufficed, then this discussion may be moot but alas that is not the case.

In 2018, the House Judiciary Committee reported out H.R. 6730, the Injunctive Authority Clarification Act of 2018, which would restrain federal courts’ authority to issue national injunctions.^[21] The bill was introduced against in the 116^th Congress but has seen no further action.[22] However, the chance of this or much other legislation passing through both houses of Congress today is slim, largely due to general disfunction.^[23] This is disappointing as both President Obama and President Trump would likely be pleased to sign this into law.^[24]

Since it appears Congress is unlikely to act, the Supreme Court should weigh in on the practice and rein in its widespread usage. The Solicitor General’s Office asked for the Court to “arrest” this “disturbing but accelerating trend,” which it cast as a “rapidly expanding threat to the respect that each coordinate Branch of our Nation’s government owes the others.”^[25] The Solicitor General’s office cited Justice Thomas’ concurrence^[26] in Trump v. Hawaii[27] imploring the court to review this concern. Justice Thomas concurred separately in Hawaii to acknowledge national injunctions have no legal authority to be issued^[28] and that the Court would likely need to review them soon.[29] Justice Thomas seems to have recently found an ally for this quest in Justice Gorsuch,[30] who noted “the real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them.”[31]

Hopefully the Court will weigh in on this critical issue to our political system soon. The next opportunity will likely be in Trump v. Pennsylvania.[32] Even defenders of national injunctions acknowledge their fundamental flaws of forum shopping, court politicization, risk of conflicting injunctions and disproportionate power to a single district court judge.¹⁷ Our republic was not meant to function this way.

^[1] Mila Sohoni, The Lost History of the ‘Universal’ Injunction, 133 Harv. L. Rev. (forthcoming 2020).

^[2] Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 420 (2017).

^[3] Id.

^[4] Id.

^[5] The Federalist No. 51 (James Madison).

[6] Id.

[7] Bray, supra note 2, at 457-461.

^[8] David Lat, Supreme Court Clerk Hiring Watch, Above the L. (June 18, 2019), https://abovethelaw.com/2019/06/supreme-court-clerk-hiring-watch-the-return-of-the-tiger-cub/?rf=1.

[9] Fed. R. Civ. P. 65.

[10] Zayn Siddique, Nationwide Injunctions, 117 Colum. L. Rev. 2095, 2102 (2017).  ¹⁰ Fed. R. Civ. P. 65

^[11] Id.; see Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (standard for preliminary injunctions is as follows: A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest; see also eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (plaintiff seeking a permanent injunction . . . must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plain- tiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction).

^[12] Siddique, supra note 10, at 2103.

^[13] Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 101, 102 (2018).  ¹⁴ Siddique, supra note 10, at 2097.

^[14] Frost, supra note 13, at 102.

^[15] The Federalist No. 47 (James Madison) (the several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts).

^[16] Bray, supra note 2, at 419.

[17] Fed. R. Civ. P. 23(b)(2).

^[18] Michael Morley, Nationwide Injunctions, Rule 23 (B)(2), and the Remedial Powers of the Lower Courts, 97. B.U. L. Rev. 611, 617 (2017).

[19] 422 U.S. 922 (1975).

^[20] Id. at 931.

^[21] The Injunctive Authority Clarification Act of 2018, H.R. 6730, 115th Cong. (2018).

[22] The Injunctive Authority Clarification Act of 2019, H.R. 77, 116h Cong. (2019).

^[23] Cynthia R. Farina, Congressional Polarization: Terminal Congressional Dysfunction?, 115 Colum. L. Rev. 1689, (2015).

^[24] See White House Statement on Sanctuary Cities Ruling (Feb. 2017),  https://obamawhitehouse.archives.gov/realitycheck/the-press-office/2015/02/17/statement-press-secretary-statetexas-v-united-states-america/ (“The Supreme Court and Congress have made clear that the federal government can set priorities in enforcing our immigration laws—which is exactly what the President did when he announced commonsense policies to help fix our broken immigration system. Those policies are consistent with the laws passed by Congress and decisions of the Supreme Court, as well as five decades of precedent by presidents of both parties who have used their authority to set priorities in enforcing our immigration laws…..”); see also White House Statement on Sanctuary Cities Ruling (Apr. 25, 2017), https://www.whitehouse.gov/briefings-statements/statementsanctuary-cities-ruling/ (“Today, the rule of law suffered another blow, as an unelected judge unilaterally rewrote immigration policy for our Nation. … This case is yet one more example of egregious overreach by a single, unelected district judge. Today’s ruling undermines faith in our legal system ….”).

^[25] Application for a Stay in the Alternative to a Writ of Certiorari Before Judgment to the United States Court of Appeals for the Ninth Circuit at 21- 27, Trump v. Karnoski, 139 S. Ct. 950 (2019) (No. 18-676).

^[26] Id. at 27.

[27] S. Ct. 2392 (2018).

^[28] Trump v. Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring) (Neither of those sources would permit a form of injunctive relief that is [in]consistent with our history and traditions). See also (This Court has never treated general statutory grants of equitable authority as giving federal courts a freewheeling power to fashion new forms of equitable remedies).

[29] Id. at 2429 (Thomas J., concurring) (In sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is duty- bound to adjudicate their authority to do so).

[30] Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020) (Gorsuch J., concurring) (“Whether framed as injunctions of “nationwide,” “universal,” or “cosmic” scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.”).

[31] Id.

[32] Trump v. Pennsylvania, No. 19-454, 2020 WL 254168, at *1 (U.S. Jan. 17, 2020) (one of the questions presented is about the nationwide injunction given by the lower courts).