National Injunctions: Judicial Authority in the Federal Courts [POLICYbrief]
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National Injunctions: Judicial Authority in the Federal Courts [POLICYbrief]

Recently, federal courts have been giving
uh, what are called nationwide injunctions, or universal injunctions, or national injunctions. The idea is that it’s an injunction that’s
much broader than the ordinary injunction, and what makes it broader is not geographic
scope. It’s not that it’s bigger in terms of places,
as if it ran all through the country. What makes it different is that it applies
to people who are not parties, that it protects non-parties. Do federal courts have the authority to give
national injunctions? That’s a controversial question right now. The question is what the judicial power is
and what role is imagined by that grant of power by the Constitution? Article III of the US Constitution gives federal
judges the judicial power. That’s a power to decide cases and controversies
between the parties. The critics and supporters of the national
injunction disagree about the implication of Article III for the injunction. But critics of the national injunction, the
national injunction is flatly inconsistent with Article III, ’cause what judges are doing
is going beyond their traditional role to decide a case. Instead, they’re setting policy for the entire
country. Federal courts are supposed to decide cases. They give remedies in those cases and part
of their job is that they aren’t supposed to be deciding political issues for nonparties. Their power and their constraint is in the
case. Sometimes it will be the case when an injunction
protects the plaintiff. There will be an inevitable spillover effect
on other people, but the court’s authority is only concerned with the parties to the
case. The best argument for the national injunction
is that the court has identified something that is unconstitutional or illegal. And what the court has identified that is
unconstitutional or illegal is not specific to the plaintiff. It’s often called a facial challenge, so if
the plaintiff is bringing a facial challenge to the statute or rule as a whole, and the
plaintiff wins, then the remedy should match the scope of the wrong. That’s the best argument for the national
injunction and it’s persuaded many people. The national injunction didn’t start picking
up until the 1970s and then the national injunction goes along from the 1970s until near the end
of the Obama Administration. Republican state attorneys general sue the
Obama Administration and stop major parts of the Obama Administration’s program through
national injunctions. Now, Democratic state attorneys general are
doing the same thing against the Trump Administration. One recent development is a request by the
state of Texas for a national injunction to stop the administration from continuing to
maintain the DACA program. What’s interesting about that national injunction
is it would be directly contrary to a national injunction from the court in the Northern
District of California. That sets up the possibility of conflicting
injunctions, which is a kind of nightmare scenario for the national injunction, because
both injunctions could be enforced with contempt. And you might think at that point that there’s
no harm done because we’re getting a national decision from the Supreme Court. But what the national injunction will have
done is put the Supreme Court in a very bad decision-making posture, ’cause it will be
deciding major statutory and maybe constitutional questions in a very rushed, emergency posture. There won’t be a trial to build a record,
and so it will all happen very quickly. Not a good recipe for judicial decision making. Our system is set up for judges to decide
particular cases and then slowly but surely, as precedents develop, we get an answer to
the question. It’s a little messy, it takes a little time,
but we hope to get better answers this way. That entire process is short-circuited by
the national injunction.


  • Michael Hill

    Don't the circuits only have power over their jurisdictions? Why do they even think they have the power to initiate a stay outside of their jurisdiction? And what happens when there are 2 cases over the same federal law and one issues a stay and one doesn't?

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