Nationwide Injunctions: Law, History, and Proposals for Reform
Congressional research reportSep 8, 2021
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Nationwide Injunctions: Law, History, and
Proposals for Reform
September 8, 2021
Congressional Research Service
https://crsreports.congress.gov
R46902
SUMMARY
Nationwide Injunctions: Law, History, and
Proposals for Reform
R46902
September 8, 2021
Joanna R. Lampe
In recent years, nationwide injunctions have generated significant debate among scholars,
Legislative Attorney
advocates, judges, and legislators. Sometimes also called national injunctions, universal
injunctions, non-party injunctions, or even cosmic injunctions, nationwide injunctions are defined
not by their geographic scope but rather by the entities to which they apply. Most commentators
use the term “nationwide injunction” to refer to an injunction against the government that
prevents the government from implementing a challenged law, regulation, or other policy with respect to all persons and
entities, whether or not such persons or entities are parties participating in the litigation.
Commentators debate both the historical roots of nationwide injunctions and numerous legal issues surrounding the modern
judicial practice related to nationwide injunctions. With respect to historical analysis, commentators generally agree that no
nationwide injunctions issued in the early years of the Republic and that such injunctions have become more common in the
last two decades. Beyond those key areas of agreement, scholars debate many important points, including when the first
nationwide injunction issued, whether other types of injunctive relief provide relevant historical precedent for current
nationwide injunctions, and whether such historical precedent is relevant to the propriety of nationwide injunctions today.
Although courts at all levels of the federal judiciary, including the Supreme Court, can and do issue nationwide injunctions,
the legal basis for such injunctions is uncertain. As a legal matter, no federal statute explicitly authorizes the courts to issue
nationwide injunctions, nor does any statute expressly limit the courts’ ability to do so. Although several sitting Justices have
expressed views regarding nationwide injunctions in non-binding separate opinions, to date, no majority of the Supreme
Court has expressly ruled on the legality of nationwide injunctions. As a practical matter, therefore, current law does not
strictly limit injunctive relief to the parties in each case.
Defenders of nationwide injunctions argue that such orders prevent widespread harm, reduce the burdens of litigation by
eliminating the need for every person affected by a challenged policy to bring suit, and promote consistency and the rule of
law by uniformly halting allegedly illegal government actions. Opponents counter that nationwide injunctions undermine
established litigation procedures by allowing challengers to circumvent the requirements for bringing a class action or by
triggering fast-tracked appeals in which the federal courts must evaluate a challenged policy based on a limited factual and
legal record. Some contend that nationwide injunctions raise constitutional issues, because they award relief to people who
are not parties to the litigation and who may lack standing to seek relief in federal court. Others argue that nationwide
injunctions may prevent the government from effectively implementing its policies and create legal uncertainty as farreaching government programs may proceed or halt at each level of the federal courts. Commentators also debate whether
nationwide injunctions contribute to the politicization of the courts and erode judicial legitimacy.
This report provides Congress with legal analysis of nationwide injunctions. The report first presents an overview of
injunctive relief in general and explains what commentators mean when they discuss nationwide injunctions in particular. It
then outlines the historical debate around nationwide injunctions, presents key legal arguments for and against such
injunctions, and briefly summarizes current judicial practice in this area. The report concludes by discussing selected recent
proposals related to nationwide injunctions and key legal considerations for legislators evaluating those proposals.
Congressional Research Service
Nationwide Injunctions: Law, History, and Proposals for Reform
Contents
What Is a Nationwide Injunction? ................................................................................................... 2
Overview of Injunctive Relief ................................................................................................... 2
“Nationwide” Injunctions: Non-Party Relief ............................................................................ 4
The Debate over Nationwide Injunctions ........................................................................................ 6
The Disputed History of Nationwide Injunctions ..................................................................... 7
The Legal Debate over Nationwide Injunctions...................................................................... 10
Constitutional Considerations ............................................................................................ 11
Litigation Procedure.......................................................................................................... 16
Fairness, Efficiency, and Governance ............................................................................... 21
The Role of the Judiciary .................................................................................................. 23
Politicization of the Courts ............................................................................................... 25
Special Contexts ............................................................................................................... 27
Nationwide Injunctions in the Federal Courts ............................................................................... 33
Considerations for Congress.......................................................................................................... 36
Status Quo or Reform.............................................................................................................. 36
Key Proposals and Legal Considerations ................................................................................ 37
Who Should Implement Reforms?.................................................................................... 38
How to Define “Nationwide Injunction”? ........................................................................ 39
Substantive Regulations .................................................................................................... 41
Contacts
Author Information........................................................................................................................ 45
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Nationwide Injunctions: Law, History, and Proposals for Reform
he new President took office and promptly issued an executive order implementing aspects
of his Administration’s immigration policy. Within days, opponents of the policy sued in
federal court, seeking an injunction barring enforcement of the executive order. Mere
weeks after the inauguration, a trial court judge issued an order prohibiting the government from
enforcing the new policy in its entirety, against parties to the litigation or anybody else—a
nationwide injunction.
T
If this narrative sounds familiar, it may be because it occurred in both of the two most recent
presidential Administrations. In February 2017, less than three weeks after President Donald
Trump took office, a federal district court judge in Washington issued a nationwide injunction
prohibiting the enforcement of President Trump’s executive order barring foreign nationals from
certain countries from entering the United States.1 Similarly, in January 2021, within a week of
President Joe Biden’s inauguration, a district court judge in Texas issued a nationwide temporary
restraining order barring enforcement of a Biden Administration executive order imposing a 100day pause on deportations.2
Nationwide injunctions are not limited to immigration cases. Recent court decisions have granted
nationwide injunctions affecting many areas of federal policy, including environmental law,
healthcare regulation, civil rights, and more.3 Scholars debate the precise historical origins of
nationwide injunctions, but broadly agree that no such injunctions issued in the early years of the
American Republic.4 Commentators also generally agree that federal courts have issued
nationwide injunctions with increasing frequency in recent years.5
Nationwide injunctions have generated significant discussion among attorneys,6 legal scholars,7
executive branch officials,8 judges,9 and legislators.10 Defenders of nationwide injunctions argue
that those orders prevent widespread harm, reduce the burdens of litigation by eliminating the
need for every person affected by a challenged policy to bring suit, and promote consistency and
the rule of law by uniformly halting allegedly illegal government actions. Some argue that
nationwide injunctions are particularly appropriate in certain circumstances, including
1 Washington v. Trump, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017) (enjoining enforcement of Executive Order
13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” 82 Fed. Reg. 8,977 (Jan. 27,
2017)).
2 Texas v. United States, No. 6:21-cv-00003, 2021 WL 247877 (S.D. Tex. Jan. 26, 2021).
3 See, e.g., Zayn Siddique, Nationwide Injunctions, 117 COLUM. L. REV. 2095, 2097 nn.5-8 (2017); Alan M. Trammell,
Demystifying Nationwide Injunctions, 98 TEX. L. REV. 67, 69 nn.3-8 (2019).
4 See, e.g., Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 HARV. L. REV. 417, 425-27
(2017); Mila Sohoni, The Lost History of the “Universal” Injunction, 133 HARV. L. REV. 920, 924-25 (2020).
5 See, e.g., Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. REV. 1065, 1071 (2018).
6 E.g., Rule by District Judge: The Challenges of Universal Injunctions: Hearing Before the S. Comm. on the Judiciary,
116th Cong. (2020) (statement of Jesse Panuccio, partner at Boies, Schiller, Flexner LLP and Public Service Fellow
with The C. Boyden Gray Center for the Study of the Administrative State at the Antonin Scalia Law School, George
Mason University).
7 See Rule by District Judge: The Challenges of Universal Injunctions: Hearing Before the S. Comm. on the Judiciary,
116th Cong. 10 (2020) (statement of Prof. Samuel L. Bray) (collecting recent scholarship on nationwide injunctions).
8 E.g., Press Release, Department of Justice (DOJ), Litigation Guidelines for Cases Presenting the Possibility of
Nationwide Injunctions (Sept. 13, 2018), https://www.justice.gov/opa/press-release/file/1093881/download (last visited
Sept. 2, 2021); Press Release, White House, Statement on Sanctuary Cities Ruling (Apr. 25, 2017); see also Rule by
District Judge: The Challenges of Universal Injunctions: Hearing Before the S. Comm. on the Judiciary, 116th Cong.
10 (2020) (statement of Loren AliKhan, Solicitor General of the District of Columbia).
9 E.g., Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 599-601 (2020) (Gorsuch, J., concurring); Trump v.
Hawaii, 138 S. Ct. 2392, 2424-29 (2018) (Thomas, J., concurring); id. at 2446 n.13 (Sotomayor, J., dissenting).
10 See infra “Key Proposals and Legal Considerations.”
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immigration litigation, environmental and civil rights cases, and challenges to agency rulemaking
under the Administrative Procedure Act (APA).
Opponents counter that nationwide injunctions undermine established litigation procedures by
allowing challengers to circumvent the requirements for bringing a class action or by triggering
fast-tracked litigation in which the federal courts must evaluate a challenged policy based on a
limited factual and legal record. Some contend that nationwide injunctions raise constitutional
concerns because they award relief to people who are not parties to the litigation and who may
lack standing to seek relief in federal court. Others argue that nationwide injunctions may prevent
the government from effectively implementing its policies, or that they can create legal
uncertainty as implementation of challenged government programs may stop and start as a case
moves through each level of the federal courts. In addition, some commentators assert that
nationwide injunctions contribute to the politicization of the courts and erode judicial legitimacy.
This report provides Congress with legal analysis of nationwide injunctions. The report first gives
an overview of injunctive relief in general and explains what commentators mean when they
discuss “nationwide injunctions” in particular. It then outlines the historical debate around
nationwide injunctions before presenting key legal arguments for and against such injunctions
and briefly summarizing current judicial practice in this area. The report concludes by discussing
selected recent proposals related to nationwide injunctions and key legal considerations for
legislators evaluating those proposals.
What Is a Nationwide Injunction?
Nationwide injunctions are also sometimes called national injunctions, universal injunctions, nonparty injunctions, non-particularized injunctions, or even cosmic injunctions.11 Some of those
terms suggest that the geographic reach of a court order is what defines a nationwide injunction.12
However, the defining feature of a nationwide injunction is not its geographic scope but rather the
entities to which it applies.
Overview of Injunctive Relief
To understand the debate around nationwide injunctions, it is helpful to begin with a general
overview of injunctive relief. An injunction is a form of equitable relief—essentially a courtordered remedy providing relief other than money damages13—by which a court either requires
an entity to take a certain action or forbids an entity from taking a certain action.14 As examples of
the former type of injunction, sometimes called an “affirmative injunction” or a “mandatory
injunction,” a court might require a polluter to clean up environmental hazards or compel a
11 See Sohoni, supra note 4, at 922; Panuccio, supra note 6, at 1; Howard M. Wasserman, Concepts, Not Nomenclature:
Universal Injunctions, Declaratory Judgments, Opinions, and Precedent, 91 U. COLO. L. REV. 999, 1007 (2020).
12 Some prefer terms that may avoid this confusion. E.g., Trump v. Hawaii, 138 S. Ct. at 2425 n.1 (Thomas, J.,
concurring) (using the term “universal injunctions”); Panuccio, supra note 6, at 1 (using the term “non-party
injunctions”). However, “nationwide inunction” appears to have emerged as the most commonly used term, see, e.g.,
Trump v. Hawaii, 138 S. Ct. at 2425 n.1 (Thomas, J., concurring); Frost, supra note 5, at 1071. Accordingly, this report
uses that term, except when quoting other sources.
13 Equitable Remedy, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A remedy, usu. a nonmonetary one such as an
injunction or specific performance, obtained when available legal remedies, usu. monetary damages, cannot adequately
redress the injury.”).
14 Injunction, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A court order commanding or preventing an action.”).
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contracting party to deliver goods subject to the contract.15 As examples of the latter type of
injunction, sometimes called a “prohibitory injunction,” a court could bar an individual from
trespassing on certain land or forbid one company from violating another’s intellectual property
rights.16 A court may issue an injunction against one or more individuals, corporations, or
government entities. Injunctions are generally enforceable through civil contempt proceedings.17
A person or entity that violates an injunction and is held in contempt may be fined,18 and may also
be jailed pending compliance.19
A court may issue injunctive relief at several stages in the litigation process. These forms of relief
are closely related but have different names and follow different procedures.
Temporary restraining order (TRO)—the most preliminary form of injunctive
relief, a TRO serves to prevent imminent harm on a short-term basis while the
court considers whether to enter a preliminary injunction. A court may enter a
TRO without providing the party to be enjoined notice and an opportunity to
respond.20
Preliminary injunction—an injunction designed to preserve the status quo while
a case remains pending. Before entering a preliminary injunction, a court
considers a motion from the party seeking the injunction and provides the party
to be enjoined the opportunity to respond. Briefing on a motion for preliminary
injunction may be expedited when urgent action is required, or when a TRO has
been sought but the court wants to hear from both sides. The court may modify or
dissolve the injunction during litigation.21
Permanent injunction—an injunction that issues once the court has decided a
case on the merits. Such an injunction applies indefinitely unless the court sets an
expiration date, the issuing court or another court of competent jurisdiction
modifies the injunction, or the injunction is overturned on appeal.22
While a nationwide injunction may issue at any stage of litigation, many high-profile cases
involving nationwide injunctions concern requests for a TRO or preliminary injunction.23
15 Mandatory Injunction, BLACK'S LAW DICTIONARY (11th ed. 2019) (“An injunction that orders an affirmative act or
mandates a specified course of conduct. — Also termed affirmative injunction.”).
16 Prohibitory Injunction, BLACK’S LAW DICTIONARY (11th ed. 2019) (“An injunction that forbids or restrains an act. •
This is the most common type of injunction.”).
17 Civil Contempt, BLACK’S LAW DICTIONARY (11th ed. 2019).
18 Frost, supra note 5, at 1071.
19 Id.; Civil Contempt, BLACK’S LAW DICTIONARY (11th ed. 2019). One scholar notes, however, that as a practical
matter courts seldom impose “coercive or punitive contempt techniques” on government officials. Doug Rendleman,
Preserving the Nationwide National Government Injunction to Stop Illegal Executive Branch Activity, 91 U. COLO. L.
REV. 887, 936 (2020).
20 Temporary Restraining Order, BLACK’S LAW DICTIONARY (11th ed. 2019) While courts issue TROs against the
federal government in some nationwide injunction cases, one commentator notes that he has found no examples of
nationwide injunctions against the United States issued without notice and opines, “I cannot think of an emergency that
clamors for such immediate attention that the judge should grant the plaintiff an ex parte TRO against the ubiquitous
United States without any notice at all.” Rendleman, supra note 19, at 966.
21 Preliminary Injunction, BLACK’S LAW DICTIONARY (11th ed. 2019).
22 Permanent Injunction, BLACK’S LAW DICTIONARY (11th ed. 2019).
23 E.g., Texas v. United States, No. 6:21-cv-00003, 2021 WL 247877 (S.D. Tex., Jan. 26, 2021) (granting nationwide
TRO); Washington v. Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017) (same); Texas v.
United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) (granting nationwide preliminary injunction).
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Courts apply a four-part test in determining whether a preliminary injunction should issue. A
plaintiff seeking a preliminary injunction must establish that
she is likely to succeed on the merits—in a challenge to government action, this
means that the plaintiff will likely be able to show that the action at issue is
unlawful;
she is likely to suffer irreparable harm in the absence of preliminary relief;
the balance of equities tips in her favor; and
an injunction is in the public interest.24
In theory, a party seeking injunctive relief faces a high bar: the Supreme Court has stated that “[a]
preliminary injunction is an extraordinary remedy never awarded as of right,” and a permanent
injunction “is a matter of equitable discretion; it does not follow from success on the merits as a
matter of course.”25 Thus, there is a difference between a court “striking down” a law or policy
and enjoining its enforcement: a court may find that a law or policy is (or is likely) invalid but
may nonetheless deny injunctive relief.26 However, the factors courts consider when weighing
requests for injunctive relief are open-ended, and courts may differ in how they apply those
factors.27 Some commentators worry that the subjective multi-factor tests for injunctive relief give
courts too much discretion and create arbitrary or unpredictable outcomes.28
“Nationwide” Injunctions: Non-Party Relief
The term “nationwide injunction” is not defined in any federal statute or majority decision of the
Supreme Court, but that term and related terms29 are used fairly consistently in lower court
decisions and legal commentary. As used in those sources, a nationwide injunction is generally
defined as an injunction against the government that prevents the government from implementing
24 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Consideration of the “balance of equities”
requires the reviewing court to compare the harm to the plaintiff if an injunction does not issue with the harm to the
defendant if an injunction does issue. See id. at 25-26. The Supreme Court has also explained that the balance of
equities and the public interest “merge” when plaintiffs seek an injunction against the government, as is the case in
litigation over nationwide injunctions. Nken v. Holder, 129 S. Ct. 1749, 1760-1762 (2009). The factors necessary to
support a permanent injunction are similar. See eBay v. MercExchange. L.L.C., 547 U.S. 388, 391 (2006) (To obtain a
permanent injunction, a “plaintiff 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 plaintiff and defendant, a remedy in equity is warranted; and (4) that the public
interest would not be disserved by a permanent injunction”).
25 Winter, 555 U.S. at 24, 32.
26 Some commentators argue that a Supreme Court order striking down a law or policy is similar to a nationwide
injunction as a practical matter because the Supreme Court’s resolution of legal issues is binding on all federal courts.
However, unless the Court also enters an injunction, its ruling may control the outcome of future cases but does not
directly require the government to take or not take any action with respect to non-parties. For further discussion of
whether the propriety of nationwide injunctions depends on what court issues them, see infra “Supreme Court Versus
Lower Courts.”
27 Bray, supra note 4, at 465-68.
28 Id. at 465 (“Judicial decisions on when an injunction should be issued are recognized by scholars to be a muddle of
inconsistent generalizations. There are relevant principles, but they are indeterminate and inconsistent with one
another.”).
29 See supra note 11 and accompanying text.
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a challenged law, regulation, or other policy against all persons and entities, whether or not such
persons or entities are parties participating in the litigation.30
To illustrate, consider a hypothetical court challenge to a federal regulation. Imagine that the
Environmental Protection Agency (EPA) issues a new regulation requiring a permit for the
emission of a certain pollutant. An organization that opposes the regulation sues EPA in district
court, arguing that EPA failed to follow the required notice-and-comment procedures when it
promulgated the regulation and that the regulation is therefore invalid.31 The organization asks the
court to issue a preliminary injunction barring enforcement of the regulation, contending that the
permit requirement would cause irreparable harm to the organization and its members, and to
others across the country that are similarly situated. If the court determines that the regulation is
likely invalid and that injunctive relief is warranted, it may enter a preliminary injunction that
protects the plaintiffs from the harm that they alleged in seeking injunctive relief—for example,
by specifically barring EPA from requiring the organization or its members to obtain a permit.
That type of injunction is sometimes called a plaintiff-protective injunction.32 Perhaps, though,
the court determines that the regulation is likely invalid, and that enforcement of the regulation
would cause widespread harm, and issues an order barring EPA from implementing the rule in its
entirety. That order, relieving all entities of the permit obligation while the plaintiffs’ suit
continues, is a nationwide injunction.33
The term “nationwide injunction” is potentially confusing because, while nationwide injunctions
often apply anywhere in the country, the defining feature of a nationwide injunction is not its
geographic scope but rather the entities to which it applies.34 Many court orders granting
30 E.g., Frost, supra note 5, at 1070 (2018) (defining “nationwide injunction” to refer to “an injunction at any stage of
the litigation that bars the defendant from taking action against individuals who are not parties to the lawsuit in a case
that is not brought as a class action”); Chicago v. Barr, 961 F.3d 882, 912 (7th Cir. 2020) (defining “nationwide, or
universal, injunctions” as “injunctive relief that extends beyond the parties before the court to include third parties”);
DHS v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring) (defining the term to mean “a court . . .
ordering the government to take (or not take) some action with respect to those who are strangers to the suit”). Often
implicit or explicit in the definition of “nationwide injunction” is that such an injunction does not issue in class action
litigation. See, e.g., Bray, supra note 4, at 419 (“[I]n non-class actions, federal courts are issuing injunctions that are
universal in scope—injunctions that prohibit the enforcement of a federal statute, regulation, or order not only against
the plaintiff, but also against anyone.”). Some define “nationwide injunction” to include injunctions that bind state
governments or even private parties, if those injunctions grant relief to non-parties; however, the focus of recent
discussion around nationwide injunctions is on injunctions against the federal government. See, e.g., Frost supra note 5,
at 1071. One scholar questions whether the accepted definition of “nationwide injunction” is adequate, noting that
injunctions often described with the term are “not monolithic” and may raise different legal concerns depending on the
specifics of each case. Portia Pedro, Toward Establishing a Pre-Extinction Definition of “Nationwide Injunctions”, 91
U. COLO. L. REV. 847, 867-70 (2020).
31 A detailed understanding of notice-and-comment rulemaking is not necessary to understand nationwide injunctions,
but for more information on notice-and-comment rulemaking see CRS In Focus IF10003, An Overview of Federal
Regulations and the Rulemaking Process, by Maeve P. Carey and CRS Report R46673, Agency Rescissions of
Legislative Rules, by Kate R. Bowers and Daniel J. Sheffner.
32 Bray supra note 4, at 420. Another scholar terms this form of relief a “Plaintiff-Oriented Injunction” and prefers the
term “Defendant-Oriented Injunction” for nationwide injunctions. Michael T. Morley, De Facto Class Actions?
Plaintiff- and Defendant-Oriented Injunctions in Voting Rights, Election Law, and Other Constitutional Cases, 39
HARV. J. L. & PUB. POL’Y 487, 500 (2016) (“A Plaintiff-Oriented Injunction vindicates the plaintiffs’ rights, but
otherwise leaves the underlying statute or regulation undisturbed. . . . A Defendant-Oriented Injunction, in contrast,
allows a single judge of ostensibly limited territorial jurisdiction to completely prohibit the defendant agency or official
from enforcing the challenged provision against anyone throughout the state or nation.”).
33 For a real-life example of litigation similar to this hypothetical, except that the nationwide injunction was issued by
an appellate court, see In re EPA, 803 F.3d 804 (6th Cir. 2015) (vacated sub nom In re United States Dep’t of Def., 713
Fed. App’x. 489 (6th Cir. 2018) (Mem)).
34 See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2425 n.1 (2018) (Thomas, J., concurring) (“These injunctions are
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injunctive relief apply anywhere in the United States (or even more broadly) without fitting the
technical definition of a nationwide injunction outlined above.35 For instance, an injunction
prohibiting one party from violating another party’s copyright is not limited to the state or the
federal judicial district where it is entered,36 and the federal Bankruptcy Code expressly grants the
bankruptcy court exclusive jurisdiction over a debtor’s property, wherever located.37 Nor is it
necessary that a nationwide injunction reach conduct in all fifty states. For example, federal
regulations sometimes apply to specific areas within the United States, but a court order blocking
implementation of a regulation in all such areas, even where the specific plaintiff has no interest,
would still fall within the definition of a “nationwide injunction.”38 Some commentators also
draw comparisons between nationwide injunctions against the federal government and
injunctions against state governments fully barring enforcement of certain state laws or policies.39
In both cases, a salient feature of the injunction is that it blocks the government from enforcing a
law or policy against parties to the litigation and non-parties alike.40
The Debate over Nationwide Injunctions
Nationwide injunctions have generated scholarly discussion on multiple fronts. Commentators
debate numerous legal issues surrounding modern judicial practice related to nationwide
injunctions and also disagree on the historical roots of those injunctions. In the absence of binding
precedent, courts facing a decision about the scope of injunctive relief have drawn upon these
arguments and weighed them on a case-by-case basis.41
The debate over nationwide injunctions does not split neatly along partisan lines.42 High-profile
policies of both major political parties have been delayed or permanently halted by nationwide
injunctions,43 and the question of whether a nationwide injunction should issue in any given case
distinctive because they prohibit the Government from enforcing a policy with respect to anyone, including
nonparties—not because they have wide geographic breadth. An injunction that was properly limited to the plaintiffs in
the case would not be invalid simply because it governed the defendant’s conduct nationwide.”)
35 See, e.g., Wasserman, supra note 11, at 1104 (“[A]ll injunctions are and should be nationwide. All injunctions
protect the plaintiff against the defendants’ unconstitutional or unlawful conduct everywhere the plaintiff may be or
may go.”). One commentator divides “[t]he concept of nationwide injunction” into “five distinct categories of orders,”
terming the relief many commentators call “nationwide injunction” a “nationwide defendant-oriented injunction.”
Michael T. Morley, Disaggregating Nationwide Injunctions, 71 ALA. L. REV. 1 (2019).
36 Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 451 (1932).
37 Ronald A. Cass, Nationwide Injunctions’ Governance Problems: Forum Shopping, Politicizing Courts, and Eroding
Constitutional Structure, 27 GEO. MASON L. REV 29, 35 (2019) (citing 28 U.S.C. § 1334(e)(1)).
38 See, e.g., Laura Bies, National Forest Roadless Areas: The Battle Rages On, 34 WILDLIFE SOC. BULL. 1417 (2006)
(describing nationwide injunction against regulation restricting logging in roadless areas of national parks).
39 E.g., Sohoni supra note 4, at 926 (citing W. Va. State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943)); Wasserman,
supra note 11, at 1105 (“An injunction prohibiting enforcement of a state law should be as nationwide as an injunction
prohibiting enforcement of federal law—it protects the plaintiff against enforcement of the constitutionally defective
state law everywhere she is or might go.”).
40 Cf. Trammell, supra note 3, at 72 n. 24 (“Just as a ‘nationwide injunction’ does not necessarily apply nationwide, it
technically does not even have to be an injunction. Although there are critical differences between preliminary
injunctions, temporary restraining orders, and permanent injunctions, . . . when such relief directly and intentionally
benefits nonparties, the concerns are overwhelmingly the same.”).
41 See infra “Nationwide Injunctions in the Federal Courts.”
42 See, e.g., Rule by District Judge: The Challenges of Universal Injunctions: Hearing Before the S. Comm. on the
Judiciary, 116th Cong. 2 (2020) (statement of Prof. Nicholas Bagley).
43 E.g., supra notes 1 and 2.
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is distinct from questions including whether the challenged government action is legally
permissible or advisable as a policy matter.44
The Disputed History of Nationwide Injunctions
There is significant scholarly debate around the history of nationwide injunctions. Legal scholars
have written extensively on nationwide injunctions, and it may seem surprising that factual
questions around the history of nationwide injunctions remain unsettled.
It is not always straightforward to identify court orders granting or denying nationwide
injunctions.45 In some cases, courts issue orders explicitly stating that they apply “nationwide” or
otherwise block a challenged measure in its entirety.46 However, there is no standard language
that courts use when issuing nationwide injunctions, nor is there an applicable federal statute or a
controlling Supreme Court case that courts routinely cite in such orders.47 Similarly, a court order
denying injunctive relief or entering a more limited plaintiff-protective injunction may not
indicate whether the plaintiff sought a nationwide injunction.
While a full exploration of the history of nationwide injunctions is outside the scope of this
report, a brief survey is instructive because some scholars argue that the historical pedigree of
nationwide injunctions determines their current legal status. As noted above, an injunction is a
form of equitable relief, meaning a court order providing relief other than money damages.48
American equity jurisprudence is derived from the English common law system that existed
before the Founding.49 Accordingly, some commentators attempt to trace the history of
nationwide injunctions back to the Founding or earlier and assert that nationwide injunctions lack
historical or legal legitimacy to the extent they depart from historical equity jurisprudence.50
44 See, e.g., Bray supra note 4, at 423. In discussing nationwide injunctions, Professor Bray asserts that even when a
court finds that the plaintiff is likely to win on the merits, it must make a separate decision about the scope of relief. “It
would be easy for a legal scholar, consciously or unconsciously, to think that a ‘sound’ decision on the merits should be
paired with a national injunction, while an ‘unsound’ decision should be enforced with an injunction protecting only the
plaintiff.” Id. As this Report will discuss further, the search for consistent principles or constraints on nationwide
injunctions arises, in some cases, from a desire to ensure that the court’s view of the proper scope of relief is not unduly
influenced by its view of merits of the underlying case.
45 See, e.g., Sohoni, supra note 4, at 1001.
46 E.g., In re EPA, 803 F.3d 804, 809 (6th Cir. 2015), vacated sub nom. In re Dept. of Def., 713 Fed. App’x. 489 (Mem)
(6th Cir. 2018) (“The Clean Water Rule is hereby STAYED, nationwide, pending further order of the court.”).
47 Some courts issuing nationwide injunctions cite Califano v. Yamasaki, 442 U.S. 682, 702 (1979) for the proposition
that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the
plaintiffs.” E.g., Chicago v. Barr 961 F. 3d 882, 920-21 (7th Cir. 2020) (citing Califano and stating, “It is widely
accepted—even by self-professed opponents of universal injunctions—that a court may impose the equitable relief
necessary to render complete relief to the plaintiff, even if that relief extends incidentally to non-parties.”).
48 See Equitable Remedy, BLACK’S LAW DICTIONARY (11th ed. 2019).
49 See, e.g., Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318-19 (1999). “Common law”
refers to “‘[e]stablished customs’ and ‘[e]stablished rules and maxims’ that were discerned and articulated by judges,”
as opposed to statutory law enacted by a legislature. Gamble v. United States, 139 S. Ct. 1960, 1982 (2019) (Thomas,
J., concurring) (quoting 1 W. Blackstone, Commentaries on the Laws of England 68–69 (1765)).
50 E.g., Bray supra note 4, at 423 (“The equitable doctrines and remedies of the federal courts must have a basis in
traditional equity. The national injunction lacks the requisite basis.”); Paul J. Larkin, Jr. & GianCarlo Canaparo, One
Ring to Rule Them All: Individual Judgments, Nationwide Injunctions, and Universal Handcuffs, 96 NOTRE DAME L.
REV. REFLECTION 55, 61-62 (2020) (“In a civil action, a court can award the same type of monetary or injunctive relief
available in England at law or equity when this nation came into being. That is all. . . . Nationwide injunctions differ
markedly from the remedies contemplated by Article III because the former exceed the party-specific reach of the
judgment and partake more of legislation.”); see also Trump v. Hawaii, 138 S. Ct. 2392, 2426 (2018) (Thomas, J.,
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Commentators broadly agree that nationwide injunctions as currently understood did not exist in
the pre-Founding English courts of equity, that no nationwide injunctions issued in the early years
of the Republic, and that such injunctions have become more common in the last two decades.51
In a May 2019 address, Attorney General William Barr stated that federal courts “issued only 27
nationwide injunctions in all of the 20th century.”52 By contrast, as of February 2020, the
Department of Justice (DOJ) had identified 12 nationwide injunctions issued during the
presidency of George W. Bush, 19 issued during Barack Obama’s presidency and 55 such
injunctions issued against the Trump Administration.53 Beyond the general agreement that
nationwide injunctions have increased in recent years, scholars debate many significant points,
including when the first nationwide injunction issued, whether other types of injunctive relief
provide historical precedent for current nationwide injunctions, and the extent to which historical
precedent is relevant to the legality of nationwide injunctions today.
One prominent critic of nationwide injunctions, Professor Samuel Bray, contends that nothing
resembling a nationwide injunction existed at English common law, and that “[t]here were
apparently no national injunctions against federal defendants for the first century and a half of the
United States.”54 To the extent early injunctive relief sometimes protected multiple people,
Professor Bray argues that such relief was not analogous to the modern nationwide injunction.
Instead, he explains, the cases in which such injunctions issued were more similar to modern
class action suits, involving discrete groups of plaintiffs raising localized grievances such as
challenges to a municipal ordinance, rather than generalized challenges to a national law or
policy.55 Professor Bray traces the rise of nationwide injunctions in American jurisprudence to the
1960s and 1970s, identifying the 1963 D.C. Circuit case Wirtz v. Baldor Electric Co. as the first
nationwide injunction.56 He posits that the subsequent increase in nationwide injunctions stems in
part from changing ideas about the role of the courts.57 While acknowledging that nationwide
injunctions have become increasingly common since the mid-twentieth century, Professor Bray
asserts that “[p]rotecting nonparties with an injunction is a remedial choice. It is a relatively new
choice, and like all remedial choices, it needs to be justified.”58 Based on historical and
constitutional analysis as well as concerns about the practical consequences of nationwide
injunctions, he ultimately concludes that “[i]n a [legal] system like ours, there is no room for the
national injunction.”59
concurring) (“[W]hether the authority comes from a statute or the Constitution, district courts’ authority to provide
equitable relief is meaningfully constrained. This authority must comply with longstanding principles of equity that
predate this country’s founding.”).
51 See, e.g., Bray supra note 4, at 425-27; Sohoni, supra note 4, at 924-25; Frost, supra note 5, at 1071.
52 William P. Barr, Attorney General, Remarks to the American Law Institute on Nationwide Injunctions (May 21,
2019).
53 Jeffrey A. Rosen, Deputy Attorney General, Address at the Administrative Conference of the United States Forum on
Nationwide Injunctions and Federal Regulatory Programs (Feb. 12, 2020).
54 Bray, supra note 4, at 428
55 Id. at 425-27.
56 Id. at 438 (citing 337 F. 2d 518 (D.C. Cir. 1963)).
57 Id. at 448-52. Professor Bray also ties the emergence of nationwide injunctions to the fact that in the American
judicial system equitable power rests with numerous district court judges instead of the single Chancellor who presided
at English common law. See id. at 446-448.
58 Id. at 457.
59 Id. at 482. As discussed further below, Professor Bray also raises constitutional concerns about nationwide
injunctions.
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Two members of the Supreme Court have approved of the foregoing historical analysis. In a
concurrence in Trump v. Hawaii, Associate Justice Clarence Thomas cited Professor Bray’s
discussion of the history of nationwide injunctions and concluded that the practice is “legally and
historically dubious.”60 Likewise, Associate Justice Neil Gorsuch authored a concurring opinion
in Department of Homeland Security [DHS] v. New York, joined by Justice Thomas, in which he
cited Professor Bray and stated that the increase of nationwide injunctions “is not normal.
Universal injunctions have little basis in traditional equitable practice. And they hardly seem an
innovation we should rush to embrace.”61 Other legal commentators have also adopted and
expanded upon Professor Bray’s historical critique of nationwide injunctions.62
The foregoing historical narrative does not enjoy universal acceptance among judges and legal
scholars. For instance, Professor Mila Sohoni provides a competing history of nationwide
injunctions, contending that “Article III courts have issued injunctions that extend beyond just the
plaintiff for well over a century.”63 Professor Sohoni states that the Supreme Court “itself issued a
universal injunction in 1913.”64 She also identifies multiple federal court decisions dating back to
the late 19th and early 20th centuries that granted relief to nonparties, including injunctions
against both federal and state laws and federal agency actions.65 In light of those decisions, she
reasons that “it would be a sharp departure from precedent and practice to treat Article III as
requiring the equitable remedial powers of federal courts to be cabined” to limit nationwide
injunctions.66
Other commentators have likewise argued that the modern nationwide injunction has deep
historical roots. Professor Amanda Frost points to “bills of peace” issued by the English courts of
equity, which “allowed courts to issue remedies to individuals closely connected and similarly
situated to the plaintiff,” and contends that “the historical practice supports the conclusion that
courts have always had the authority to issue equitable relief that encompasses nonparties.”67
Also, in an amicus brief filed in the U.S. Court of Appeals for the Seventh Circuit, a group of
scholars who study legal and constitutional history proffered that in the early history of the
Republic, “[n]ot only did equity courts have the equitable power to grant injunctions that look
like modern nationwide injunctions (save they did not run against the federal government itself),
but they in fact issued injunctions of astonishing scope.”68 They further described equity courts as
possessing “the equitable powers to issue nationwide injunctions in the early republic,” and as
having “long issued injunctions that protect the interests of non-parties.”69 In an opinion granting
a nationwide injunction, the Seventh Circuit relied in part on analysis by the foregoing amici and
60 Trump v. Hawaii, 138 S. Ct. 2392, 2429 (2018) (Thomas, J., concurring).
61 DHS v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring) (internal citations omitted).
See, e.g., Howard M. Wasserman, “Nationwide” Injunctions Are Really “Universal” Injunctions and They Are
Never Appropriate, 22 LEWIS & CLARK L. REV. 335, 354-57 (2018); Morley, supra note 35, at 31-32.
63 Sohoni, supra note 4, at 924.
64 Id. (citing Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913)).
65 Id. at 943-993.
66 Id. at 927.
67 Frost, supra note 5, at 1081.
68 Br. of Legal Historians as Amici Curiae Supporting Plaintiff and Appellee the City of Chicago, Chicago v. Barr, 961
F. 3d 882 (7th Cir. 2020) (No. 18-2885), 2018 WL 6173238 at *6.
69 Id. at *8.
62
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Professor Sohoni to conclude that “there is a substantial historical basis for the concept of
injunctive relief that extends to the benefit of nonparties.”70
Even if the history of nationwide injunctions was clear-cut, past practice with respect to these
injunctions would not necessarily determine their legality. Some scholars assert that, regardless of
their history in England and during the early years of the Republic, nationwide injunctions have
now become firmly established in American jurisprudence.71 Conversely, some argue that seeking
to establish historical roots for current practices should not halt further development of the
relevant legal doctrine.72 One scholar asserts that the modern American judiciary differs from the
pre-Founding English courts in numerous respects, including the existence of “statutes
establishing private rights of action (especially in the area of civil rights), the institutional design
of the U.S. federal court system, and the separation of powers—all realities that differ greatly
from equitable practice in 1789.”73 She offers that recent changes in the legal system are
beneficial, and cautions that grounding modern equity jurisprudence in historical practice as it
existed in England in the late 18th century may perpetuate systems that marginalize certain
groups of people.74 Similarly, another scholar ties the increase in nationwide injunctions since the
1960s to “several inflection points that redefined the role of courts in vindicating individual
rights” and argues that nationwide injunctions are consistent with other recent legal
developments.75 The enactment of the APA in 1946 may also have granted the federal courts
authority that they did not possess in early America.76 Finally, as the following section discusses
in more detail, numerous scholars have raised legal arguments for and against nationwide
injunctions that do not relate to their historical pedigree.
The Legal Debate over Nationwide Injunctions
There is limited binding legal authority governing the federal courts’ ability to issue nationwide
injunctions. No federal statute explicitly authorizes the courts to issue such injunctions, nor does
any statute expressly limit their ability to do so, and the Supreme Court has not expressly ruled on
the legality of nationwide injunctions.77 As a practical matter, courts at all levels of the federal
70 Chicago v. Barr, 961 F. 3d 882, 914 (7th Cir. 2020).
71 For example, Professor Sohoni points to several prominent ways in which modern American equity jurisprudence
differs from pre-Founding common law jurisprudence. She concludes, “if one accepts that purely plaintiff-protective
injunctions against enforcement suits by federal officers are today constitutionally legitimate, then one has accepted
that . . . federal courts can go beyond what chancery courts did in England at the time of the Founding. And once one is
at that point, then what sense is there in drawing a line based on adherence to original meaning between plaintiffprotective injunctions and injunctions that reach beyond the plaintiffs? At least in public law cases against federal
defendants, the ship of strict original meaning sailed away long ago[.]” Sohoni, supra note 4, at 1005-06.
72 E.g., Chicago, 961 F. 3d at 914 (summarizing position of amicus brief filed by legal historians: “Although
concluding that nationwide injunctions are historically grounded, the legal historians cautioned against an approach that
would anchor equitable remedies too closely to the ‘notoriously difficult subject’ of history, noting that the continuity
of some traditional equity practices should not foreclose adapting equitable remedies to modern circumstances.”),
73 Pedro, supra note 30, at 876-77.
74 Id. at 873.
75 Alan M. Trammell, The Constitutionality of Nationwide Injunctions, 91 U. COLO. L. REV. 977, 991-97 (2020).
76 See infra “Judicial Review of Agency Action.”
77 See, e.g., Bray, supra note 4, at 444; Larkin & Canaparo, supra note 50, at 63; Trump v. Hawaii, 138 S. Ct. 2392,
2425 (2018) (Thomas, J., concurring). Federal Rule of Civil Procedure 65 establishes procedures for the issuance of
injunctive relief but does not expressly address nationwide injunctions. See Fed. R. Civ. P. 65. As discussed below, the
Administrative Procedure Act arguably authorizes injunctive relief against a federal agency that affects third parties,
but that authority is not explicit.
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judiciary have issued nationwide injunctions.78 The Supreme Court has issued nationwide
injunctions, and has issued and upheld other injunctions that protect persons other than the
plaintiffs.79 This status quo suggests at a minimum that current law does not strictly limit
injunctive relief to the parties in each case. However, several sitting Justices have expressed
views on nationwide injunctions in non-binding separate opinions.80
In the absence of clearly controlling legal authority, commentators examining the legal status of
nationwide injunctions may evaluate nationwide injunctions in light of general constitutional
principles, compatibility with other existing litigation procedures, norms around the role of the
federal courts, and ideals of fairness, efficiency, and good governance. In addition to those
general considerations, some scholars contend that nationwide injunctions may raise unique legal
issues in particular contexts, including immigration law, environmental litigation, and litigation
under the APA.
Constitutional Considerations
Some scholars debate whether federal courts have the constitutional authority to issue nationwide
injunctions. As noted above, federal courts at all levels of the judicial branch have issued
nationwide injunctions.81 Despite invitations to address the practice in recent cases, no majority
opinion of the Supreme Court has yet addressed the constitutionality of nationwide injunctions.82
Thus, there is currently no binding constitutional authority limiting the federal courts’ ability to
issue nationwide injunctions. However, as this section outlines, some commentators have called
on the Supreme Court to curb the practice on constitutional grounds, and two members of the
current Court have expressed interest in doing so.83
78 See, e.g., Sohoni, supra note 4, at 924-28.
79 For an example of a universal stay against a regulation issued by the Supreme Court, see, e.g., West Virginia v. EPA,
136 S. Ct. 1000, 1000 (2016) (mem.). Other injunctions that the Court has issued or upheld arguably do not fit the
strictest definition of “nationwide injunction,” either because they barred enforcement of state rather than federal law or
policy or because they barred enforcement against a defined group of people; however, numerous Supreme Court
decisions have granted relief that applied to non-plaintiffs outside the context of a certified class action. See, e.g.,
Sohoni, supra note 4, at 924-25, (“The Court itself issued a universal injunction in 1913, . . . when it temporarily
enjoined a federal statute from being enforced not just against the plaintiffs but also against ‘other newspaper
publishers.’” (citing Journal of Commerce & Commercial Bulletin v. Burleson, 229 U.S. 600, 600 (1913) (per
curiam))); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925) (affirming
injunction fully barring enforcement of a state statute that required children to attend public school); West Virginia
State Bd. of Ed. v. Barnette 319 U.S. 624 (1943) (affirming injunction fully barring enforcement of state regulation
requiring teachers and students to salute the flag); Trump v. International Refugee Assistance Project, 137 S. Ct. 2080,
2087 (2017) (staying lower courts’ orders to the extent they barred enforcement against “foreign nationals who lack
any bona fide relationship with a person or entity in the United States,” but “leav[ing] the injunctions entered by the
lower courts in place with respect to respondents and those similarly situated”) (emphasis added).
80 DHS v. New York, 140 S. Ct. 599, 599-601 (2020) (Gorsuch, J., concurring); Trump v. Hawaii, 138 S. Ct. at 242429 (Thomas, J., concurring); id. at 2446 n.13 (Sotomayor, J., dissenting).
81 See supra notes 78 & 79.
82 For example, one of the consolidated cases in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania,
140 S. Ct. 2367 (2020), involved a challenge to a nationwide injunction. See Petition for Writ of Certiorari, Trump v.
Pennsylvania (No. 19-454). However, the Court ultimately ruled for the petitioners on the merits and thus vacated the
injunction in full without considering the proper scope of relief. See 140 S. Ct. at 2373; see also, e.g., DHS, 140 S. Ct.
at 599 (staying nationwide injunction without a substantive majority opinion); Trump v. Hawaii, 138 S. Ct. at 2423 (in
case involving a nationwide injunction, reversing grant of injunction without considering its scope because plaintiffs
were not likely to success on the merits).
83 See DHS v. New York, 140 S. Ct. 599, 599-601 (2020) (Gorsuch, J., concurring); Trump v. Hawaii, 138 S. Ct. at
2424-29 (Thomas, J., concurring). Aspects of this debate are closely tied to the historical debate outlined in the
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Consideration of the constitutionality of nationwide injunctions requires some background
understanding of the scope of the federal judicial power. Article III of the Constitution establishes
the federal judiciary and grants the federal courts the power to hear certain “Cases” and
“Controversies.”84 The federal courts have interpreted that language to require that anyone
seeking to bring suit in federal court must have standing—that is, the plaintiff must have an
individualized and concrete interest in the litigation.85 Specifically, to demonstrate standing, a
plaintiff must show that (1) she has suffered (or will imminently suffer) an injury in fact that is
(2) caused by the defendant and (3) redressable by a court ruling in the plaintiff’s favor.86 The
plaintiff’s injury must be particular to her. While the injury need not be unique to the plaintiff and
may be shared by others who are similarly situated, a plaintiff does not have standing to raise a
grievance that is shared by all members of the general public.87 If a plaintiff does not have
standing, the federal courts lack jurisdiction over her claims, meaning that the courts do not have
the constitutional power to hear the case and must dismiss it.88
Multiple commentators have argued that many nationwide injunctions are inconsistent with
Article III standing principles. For instance, Professor Michael T. Morley points to the standing
requirement of redressability and contends that the requirement implies that “a plaintiff must have
standing not only to assert a cause of action, but also to pursue each form of relief she seeks.”89
Professor Morley further states that plaintiffs generally have standing to protect only their own
rights, not the rights of others, and that “[o]nce a court orders that a plaintiff’s rights be enforced,
her claim is mooted.”90 Thus, he argues, if a plaintiff-protective injunction would adequately
safeguard the rights of the parties to a case, a federal court lacks the constitutional authority to
order more expansive relief: the “redressability requirement thus prevents a plaintiff from
bootstrapping, based on the injury she has suffered to her own rights, to seek an injunction
protecting the rights of others.”91 Professor Bray also embraces this “claimant-focused
understanding of the judicial power,” under which “Article III defines the judicial role as
“redress[ing] an injury resulting from a specific dispute.”92 He contends, “Once a federal court
previous section, because some scholars, commentators, and judges look to historical practice to help define the scope
of the federal judicial power. However, the constitutional analysis of nationwide injunctions is not wholly dependent on
their historical status.
84 U.S. CONST. art. III, § 2.
85 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-62 (1992). For additional discussion of Article III standing
doctrine, see “Legal Background of Article III Standing” section of CRS Report R45636, Congressional Participation
in Litigation: Article III and Legislative Standing, by Kevin M. Lewis.
86 Lujan, 504 U.S. at 560-61.
87 Id. at 573-74 (“We have consistently held that a plaintiff raising only a generally available grievance about
government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws,
and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an
Article III case or controversy.”).
88
Id. at 573-78.
89 Morley, supra note 32, at 524; see also Cass supra note 37, at 36 (“The redressability requirement plays an important
role in assuring that litigation resolves narrowly focused controversies, rather than simply eliciting judges' views on
general policy disputes”); Jonathan Remy Nash, State Standing for Nationwide Injunctions Against the Federal
Government, 94 N.D. L. REV. 1985, 2008 (2019) (“[a] showing of standing requires consideration of how the court can
redress the plaintiff's injury.”).
90 Morley, supra note 32, at 525.
91 Id. This principle has roots in equity as well as constitutional law. Supreme Court caselaw holds that injunctive relief
should be narrowly tailored to address the harm before the court. See, e.g., Califano v. Yamasaki, 442 U.S. 682, 702
(1979).
92 Bray supra note 4, at 471.
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has given an appropriate remedy to the plaintiffs, there is no longer any case or controversy left
for the court to resolve. . . . The court has no constitutional basis to decide disputes and issue
remedies for those who are not parties.”93
Similarly, in his concurrence in Trump v. Hawaii, Justice Thomas wrote that nationwide
injunctions “appear to be inconsistent with longstanding limits on equitable relief and the power
of Article III courts,” including “American courts’ tradition of providing equitable relief only to
parties.”94 Justice Gorsuch also discussed constitutional questions around nationwide injunctions
in his concurrence in DHS v. New York:
Equitable remedies, like remedies in general, are meant to redress the injuries sustained by
a particular plaintiff in a particular lawsuit. When a district court orders the government
not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury
that gives rise to its jurisdiction in the first place. But when a court goes further than that,
ordering the government to take (or not take) some action with respect to those who are
strangers to the suit, it is hard to see how the court could still be acting in the judicial role
of resolving cases and controversies. Injunctions like these thus raise serious questions
about the scope of courts’ equitable powers under Article III.95
By contrast, other commentators contend that the Constitution does not limit the federal courts’
ability to issue nationwide injunctions. Some scholars dispute the proposition that the courts’
authority is confined to the bare minimum required to resolve concrete disputes between specific
parties, pointing to instances where the Supreme Court has instead taken a more expansive view
of its role by declaring the law for parties before the Court and others.96 Some point to the wellknown statement in Marbury v. Madison that “[i]t is emphatically the province and duty of the
judicial department to say what the law is” in support of this broader conception of judicial
authority.97 Others cite circumstances in which the Supreme Court, on its own initiative, considers
issues beyond the immediate dispute between the parties, asserting that the Court “increasingly
directs parties to brief new issues that the Court itself has added and appoints amici curiae to
argue points that the parties do not actually contest.”98 Commentators also point to circumstances
where federal courts routinely grant relief to persons not before the court, such as class actions,
93 Id.; see also Larkin & Canaparo, supra note 50, at 69 (“[A] district court lacks jurisdiction to grant a prevailing party
relief on an issue not in dispute in the case and unnecessary to fully remedy the plaintiff’s injury. It logically follows
that a district court lacks jurisdiction to award relief to a nonparty as to whom there is, by definition, no ‘Case’ or
‘Controversy’ with anyone before any litigation is brought.”); Wasserman, supra note 62, at 360 (“The constitutional
problem is not the existence of a constitutionally defective law, but the threat of enforcement of that constitutionally
defective law against particular persons. . . . That limitation precludes relief going beyond preventing harm to the
plaintiff by attempting to prevent harm to people not before the court, at least where unnecessary to prevent harm to the
plaintiff.”); Samuel Bray, The Big National Injunction Case, VOLOKH CONSPIRACY (June 26, 2018),
https://reason.com/2018/06/26/the-big-national-injunction-case/ (last visited September 3, 2021) (“Article III is not just
about standing but about remedies, and the remedies given must be tailored not to abstractions like the extent of the
violation by the defendant but to the ‘the plaintiff’s particular injury.’”).
94 Trump v. Hawaii, 138 S. Ct. 2392, 2425, 2427 (2018) (Thomas, J. concurring).
95 DHS v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring).
96 E.g., Frost, supra note 5, at 1087 (“Federal courts serve a dual function: They exist to resolve disputes between the
parties before them and also to declare the meaning of law for everyone. Scholars dispute the degree to which law
declaration is merely incidental to dispute resolution, rather than an independent and significant aspect of the judicial
power.”).
97 Id. n.103 (citing 5 U.S. 137, 177 (1803)); Rendleman, supra note 19, at 894; see also infra “Judicial Review of
Agency Action” for discussion of non-constitutional questions related to the proper scope of judicial review.
98 Trammell, supra note 75, at 988.
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cases brought by a “next friend” or other representative of the true party in interest, and claims
based on third-party standing.99
Some who defend the constitutionality of nationwide injunctions also reason that Article III
standing doctrine does not limit courts’ ability to issue such injunctions because the questions of
standing and remedy are distinct issues.100 Standing, they note, is a threshold question that
generally arises early in litigation and determines whether a plaintiff may bring suit at all; if
standing does not exist, the case must be dismissed.101 By contrast, courts may reach the question
of remedy only after determining that a plaintiff has standing and considering the merits of the
case.102 Regardless of whether nationwide injunctions also benefit non-parties, these
commentators explain that such injunctions issue in cases where courts have found that the
plaintiffs have standing to sue and to seek injunctive relief.103 Some commentators dispute this
understanding, arguing that the Supreme Court has interpreted Article III to require plaintiffs to
demonstrate standing not only to sue in general, but also to seek particular remedies; however, it
is debatable whether or how the cases they cite apply to requests for nationwide injunctions.104
Whether a nationwide injunction raises constitutional questions may depend on the specific facts
of the case. Courts offer differing reasons for issuing nationwide injunctions.105 Sometimes a
court expressly extends the relief granted beyond what is required to protect the plaintiffs in order
to protect persons not before the court who may have trouble bringing their own claims,106 or
simply because the court finds that a challenged policy is plainly unlawful.107 Sometimes courts
determine that it is not feasible as a practical matter to narrowly tailor relief to reach only the
plaintiff.108 In other cases, courts find that nothing less than a nationwide injunction will fully
99 Frost, supra note 5, at 1083-85; see also id. at 1083 (discussing “prophylactic injunctions that go beyond the
plaintiff’s ‘actual injury’” in order to prevent non-compliance by the defendant).
100 Trammell, supra note 75, at 981 (“Standing presents a quintessential threshold question, whereas the appropriate
scope of remedy—including whether a remedy may directly benefit a nonparty—is a logically distinct matter”); id. at
984-85 (“the Supreme Court’s current doctrine strongly suggests that standing has no bearing on the basic problem of
nationwide injunctions—that is, how broadly a remedy may sweep and, specifically, whether it may benefit people who
were not actual parties to a lawsuit”); Frost supra note 5, at 1083 (“standing is required to get into federal court, but it
does not govern the scope of the remedy a court may issue.”).
101 E.g., Rendleman supra note 19, at 916.
102 Id. at 917.; Trammell, supra note 75, at 985.
103 Trammell, supra note 75, at 985.
104 Bray, supra note 4, at 472 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 103-06 (1983)); see also Morley,
supra note 32, at 489 n. 11. But see Trammell, supra note 75, at 985 (arguing that “courts correctly recognize that
scope-of-remedy questions—such as those concerning the propriety of nationwide injunctions—are important and often
vexing, but they are not threshold justiciability questions and thus are distinct from standing.”).
105 See generally infra “Nationwide Injunctions in the Federal Courts.”
106 See, e.g., Frost, supra note 5, at 1094-98; cf. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (citing injury to
the states challenging an Executive Order “and multiple other parties interested in the proceeding.”) (internal quotes
and citations omitted).
107 See Morley, supra note 32, at 504 (“Some jurisdictions have held that a court should presumptively enjoin
government defendants from enforcing an invalid legal provision against anyone, to the extent of its invalidity.”); see
also Int’l Refugee Assistance Project v. Trump, 883 F.3d 233, 272-74 (4th Cir. 2018), vacated, 138 S. Ct. 2710 (2018)
(“[B]ecause we find that the Proclamation was issued in violation of the Constitution, enjoining it only as to Plaintiffs
would not cure its deficiencies.”); Nat’l Mining Ass'n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1408-10 (D.C.
Cir. 1998) (explaining that a nationwide injunction is appropriate when a court reviewing agency action under the APA
finds such action to be unlawful).
108 See. e.g., Hawaii v. Trump, 859 F.3d 741, 787-88 (9th Cir. 2017), vacated sub nom. Int'l Refugee Assistance
Project, 138 S. Ct. 377 (“[T]he Government did not provide a workable framework for narrowing the geographic scope
of the injunction.”).
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protect the rights of the plaintiff.109 As examples of the latter type of cases, Professor Amanda
Frost cites desegregation cases, where “an order requiring the defendant to admit only the
plaintiff would not address the injury,” and challenges to certain funding restrictions, where
funding denied to one potential recipient would automatically go to others.110
Multiple courts and most commentators, including some critics of nationwide injunctions, agree
that where a nationwide injunction is the only means to provide complete relief to existing
parties, such an injunction is properly understood as a plaintiff-protective injunction that does not
raise Article III concerns.111 Associate Justice Sonya Sotomayor endorsed that view in a dissent in
Trump v. Hawaii, writing that “[t]he District Court did not abuse its discretion by granting
nationwide relief. Given the nature of the Establishment Clause violation and the unique
circumstances of this case, the imposition of a nationwide injunction was necessary to provide
complete relief to the plaintiffs.”112 Scholars debate how frequently a nationwide injunction is
truly necessary to provide complete relief to the parties.113
While many commentators have staked out positions firmly for or against the constitutionality of
nationwide injunctions, a few have sought a middle ground, arguing that nationwide injunctions
are neither barred nor clearly authorized under Article III standing doctrine.114 Some scholars
acknowledge other legal and policy objections to nationwide injunctions, but warn against raising
those objections to the level of constitutional concern.115 Some of those non-constitutional
objections are discussed in the following sections.
109 See. e.g., Texas v. United States, 787 F.3d 733, 743-46 (2015); see also Cass, supra note 37, at 39-40 (“The point
was not that a nationwide injunction would be more beneficial to the interests asserted by Texas and the other plaintiff
states. Rather, it was that a traditional, geographically restricted injunction well might provide no meaningful relief at
all. . . . [T]he Fifth Circuit’s test, at bottom, was the traditional balancing test for injunctive relief, attending to the
specific interests of the parties before the court even if the remedy ultimately had nationwide scope.”)
110 Frost, supra note 5, at 1082 (“[I]n the litigation challenging the Department of Justice’s policy of withholding
funding from so-called ‘sanctuary cities,’ the Seventh Circuit upheld the nationwide injunction because funds were
distributed nationwide from a single pool of money, and thus ‘conditions imposed on one can impact the amounts
received by others.’”).
111 See, e.g., Morley, supra note 32, at 491; Milan Smith, Only Where Justified: Toward Limits and Explanatory
Requirements for Nationwide Injunctions, 95 N.D. L. REV. 2013, 2026 (2020); TSTA/NEA v. El Paso Cty. Cmty. Coll.
Dist., 730 F.2d 258, 273-74 (5th Cir. 1984).
112 Trump v. Hawaii, 138 S. Ct. 2392, 2446 n.13 (2018) (Sotomayor, J., dissenting) (quoting Madsen v. Women's
Health Ctr., Inc., 512 U.S. 753, 765 (1994)) (internal quotation marks omitted).
113 E.g., Wasserman, supra note 62, at 386-390 (discussing nationwide injunction cases in which a narrower injunction
might have provided complete relief to the plaintiffs); cf. Bray, supra note 4, at 466-89 (arguing that the “complete
relief” principal is not clearly defined and not an effective limit on nationwide injunctions); Smith, supra note 111, at
2026 (arguing that the complete relief principle imposes a limit on injunctive relief and “[i]t does not necessarily follow
that courts must issue injunctive relief that provides complete relief to the plaintiffs”).
114 Nash, supra note 89, at 2010 (“[T]hese doctrines provide evidence that Article III standing does not tie the scope of
an injunction directly to the injury suffered by the aggrieved plaintiff. To say, however, that these doctrines necessarily
validate the nationwide injunction is quite a stretch. A true nationwide nonparty injunction presents one of the greatest
possible disjunctions between a plaintiff’s actual injury and injunctive scope.”); see also Smith, supra note 111, at 2015
(“[N]ationwide injunctions are justified in certain contexts, and in those contexts are within the Article III powers of a
court sitting in equity. Actual practice has gone considerably further, however, than the circumstances I would
endorse.”).
115 E.g., Trammell, supra note 75, at 980 (arguing that “manufacturing a constitutional home” for legitimate objections
to nationwide injunctions best understood in policy terms “distorts and impoverishes Article III”).
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Litigation Procedure
Some commentators analyze nationwide injunctions from a procedural perspective, debating
whether such injunctions conflict with or undermine other established facets of the federal
litigation process. Key topics of discussion include whether nationwide injunctions prevent courts
from fully exploring legal and factual issues, whether they improperly provide relief to persons
who are not participating in the litigation, and whether they conflict with the legal doctrine of
collateral estoppel by preventing the government from relitigating legal issues in multiple cases.
Record Development and Percolation
Some commentators argue that the issuance of nationwide injunctions may lead federal courts to
make less-well-informed decisions in two related ways. First, some believe, the issuance of a
nationwide injunction may prevent development of the legal and factual record in the particular
case in which the injunction issues. Second, and more generally, some view the issuance of
nationwide injunctions as inhibiting the “percolation” of important legal issues through multiple
federal courts.
With respect to the first concern, some commentators posit that, compared to other kinds of cases,
those involving nationwide injunctions improperly limit the opportunity for development of the
legal and factual record.116 In ordinary litigation, the parties often conduct discovery to establish
the factual record for a case, which may include documents, witness testimony, or other relevant
evidence.117 Disputed questions of fact may proceed to trial before a judge or jury.118 The parties
also usually submit motions papers or briefs discussing legal issues relevant to the case.119 By
contrast, cases involving nationwide injunctions often proceed on an expedited basis. Parties
seeking a nationwide injunction frequently do so by requesting a TRO or a preliminary
injunction, claiming that they will suffer irreparable harm if the motion is not granted by a
particular deadline.120 Those types of motions generally come very early in the litigation process,
before there is a chance for full development of the factual and legal record.121 While litigants
must ordinarily wait for a final judgment disposing of a case in its entirety before appealing, court
orders granting or denying injunctive relief are immediately appealable, and such appeals often
are also considered on an expedited basis.122 This process means that cases involving nationwide
injunctions may move from the district court to the court of appeals and finally to the Supreme
Court in a matter of weeks.123 Some commentators worry that this expedited process provides the
116 See, e.g., Bray, supra note 4, at 461-62; Frost, supra note 5, at 1108.
117 Fed. R. Civ. P. 26-37; see also 8 Charles Alan Wright et al., FEDERAL PRACTICE AND PROCEDURE § 2001 et seq. (3d
ed. 2021).
118 Fed. R. Civ. P. 39.
119 Fed. R. Civ. P. 7; see also 5 Charles Alan Wright et al., FEDERAL PRACTICE AND PROCEDURE § 1182 et seq. (3d ed.
2021).
120 E.g., Texas v. United States, 515 F. Supp. 3d 627 (S.D. Tex., 2021) (granting nationwide TRO); Washington v.
Trump, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017) (same); Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex.
2015) (granting nationwide preliminary injunction); see, e.g., Beth A. Williams, Assistant Attorney General, Office of
Legal Policy, DOJ, Discussion on Nationwide Injunctions: Introductory Remarks, 2019 Federalist Society Texas
Chapter Conference, 24 TEX. REV. L. & POL. 315, 319 (2020).
121 Williams, supra note 120, at 319.
122 Compare 28 U.S.C. § 1291 (appeal from final decisions of district courts) with 28 U.S.C. § 1292 (appeal from
interlocutory decisions, including orders “granting, continuing, modifying, refusing or dissolving injunctions, or
refusing to dissolve or modify injunctions”).
123 For example, the immigration order at issue in Trump v. Hawaii was issued on September 24, 2017 and published in
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parties and the courts with insufficient time for full development and examination of the factual
and legal record in high-stakes cases.124
While the foregoing concern around record development relates to the consideration of the law
and facts in individual cases, the second concerns percolation—that is, allowing consideration of
legal issues by multiple federal courts across multiple cases so that the issues are explored
thoroughly before the Supreme Court weighs in.125 The Supreme Court has recognized an interest
in percolation.126 The Court’s frequent practice of declining petitions for certiorari until there is a
“circuit split,” where two or more federal appeals courts have reached different conclusions on a
legal question, is one way that the Court fosters percolation.127 However, some courts and
commentators assert that the issuance of nationwide injunctions undermines percolation.128
Because cases involving nationwide injunctions often move quickly through the courts, they
argue, there may not be enough time for multiple lower courts to consider an issue before an
expedited appeal reaches the Supreme Court.129 The issuance of a nationwide injunction may also
deter new plaintiffs from filing additional challenges to the enjoined policy because they have no
incentive to spend resources to oppose a policy that has already been halted.130 Furthermore,
some commentators argue that one court’s decision to issue a nationwide injunction may
discourage other courts from considering the same issue, either because a ruling on a policy that
is already enjoined in full would have no practical effect, or to avoid the risk of different courts
issuing conflicting injunctions.131 Those commentators contend that the absence of multiple
the Federal Register three days later. Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for
Detecting Attempted Entry Into the United States by Terrorists or Other Public–Safety Threats, 82 Fed. Reg. 45161
(Sept. 27, 2017). The district court entered a nationwide injunction against the order on October 17, 2017. State v.
Trump, 265 F. Supp. 3d 1140 (D. Haw. 2017). After the Ninth Circuit affirmed, the Supreme Court granted certiorari
on January 19, 2018. Trump v. Hawaii, 138 S. Ct. 923 (2018). The Court issued its final decision in the case in June
2018. Trump v. Hawaii, 138 S. Ct. 2392 (2018).
124 E.g., Bray, supra note 4, at 461-62; DHS v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring)
(“Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at
hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one
emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and
little opportunity for the adversarial testing of evidence.”).
125 See Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting) (“We have in many instances recognized
that when frontier legal problems are presented, periods of ‘percolation’ in, and diverse opinions from, state and federal
appellate courts may yield a better informed and more enduring final pronouncement by this Court.”).
126 United States v. Mendoza, 464 U.S. 154, 160 (1984) (“A rule allowing nonmutual collateral estoppel against the
Government in such cases would substantially thwart the development of important questions of law by freezing the
first final decision rendered on a particular legal issue. Allowing only one final adjudication would deprive this Court
of the benefit it receives from permitting several courts of appeals to explore a difficult question before this Court
grants certiorari.”).
127
See Sup. Ct. R. 10 (listing circuit splits as one factor in the decision whether to grant certiorari).
128 E.g., Williams, supra note 120, at 318; Frost, supra note 5, at 1108 (citing Va. Soc’y for Human Life, Inc. [VSHL]
v. FEC, 263 F.3d 379, 393 (4th Cir. 2001) (noting that nationwide injunctions can “deprive the Supreme Court of the
benefit of decisions from several courts of appeals”), overruled on other grounds by Real Truth About Abortion, Inc. v.
FEC, 681 F.3d 544, 550 n.2 (4th Cir. 2012)).
129 E.g., Wasserman, supra note 62, at 378-79.
130 E.g., Smith, supra note 111, at 2032; Bray, supra note 4, at 461-62.
131 See, e.g., Williams, supra note 120, at 320-21 (“When a single district judge enters a nationwide injunction, he or
she prevents every other district judge in the country, and every circuit judge outside his or her own circuit, from
issuing a ruling with any practical effect.”). For additional discussion of the possibility of conflicting injunctions see
infra “Fairness, Efficiency, and Governance.”
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appeals court decisions on an issue may deprive the Supreme Court of a valuable resource in
deciding difficult cases.132
Others respond to concerns around record development and percolation by explaining that those
concerns are not unique to nationwide injunctions. For instance, some note that class actions and
multidistrict litigation may also limit percolation by consolidating claims from multiple
individuals in a single suit.133 Moreover, many cases involving requests for injunctive relief are
litigated on an expedited basis, which may limit opportunities for record development and
percolation regardless of whether the plaintiffs seek a nationwide injunction or a more limited
injunction. In addition, some courts and scholars maintain that cases involving nationwide
injunctions are less likely to raise the type of issues that benefit most from percolation because
they often involve facial challenges to laws or regulations that do not depend on how those
authorities apply to particular individuals.134 Some further suggest that the participation of nonparties as amici curiae in the lower courts mitigates concerns around full exploration of all legal
perspectives.135 Some scholars note that the issuance of a nationwide injunction does not
necessarily prevent other courts from considering the same issues, but offer that the effect on
percolation is one factor that each court should consider when choosing a remedy in the particular
case before it.136 Similarly, some commentators agree that percolation and record development are
legitimate policy considerations, but propose that the benefits from nationwide injunctions may
outweigh any downsides arising from limitations in these areas.137 By contrast, some scholars
challenge the notion that percolation provides significant benefits as a general matter, and
specifically deny that “the percolation process should weigh as a significant factor in ongoing
debates concerning nationwide injunctive relief.”138
132 E.g., Wasserman, supra note 62, at 378-79; DHS v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring)
(“By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information
decisions.”).
133 See, e.g., Frost, supra note 5, at 1108, 1111; Zachary D. Clopton, National Injunctions and Preclusion, 118 MICH. L.
REV. 1, 38-39 (2019) (citing class action caselaw and arguing that “a policy preference in favor of percolation is not a
trump card” against nationwide injunctions).
134 A facial challenge is a claim that the challenged policy is unlawful on its face—that is, that the law or regulation is
unlawful as written, without regard to how it is applied. For discussion of the propriety of nationwide injunctions in
cases raising facial challenges, see, e.g., Suzette Malveaux, Class Actions, Civil Rights, and the National Injunction,
131 HARV. L. REV. F. 56, 58 (2017); Chicago v. Sessions, 888 F.3d 272, 292 (7th Cir. 2018) (“There are some legal
issues which benefit from consideration in multiple courts—such as issues as to the reasonableness of searches or the
excessiveness of force—for which the context of different factual scenarios will better inform the legal principle. But a
determination as to the plain meaning of a sentence in a statute is not such an issue. For that issue, the duplication of
litigation will have little, if any, beneficial effect.”).
135 E.g., Clopton, supra note 133, at 38-39. But see Nash, supra note 89, at 2003 (arguing that briefing by amici is not a
full substitute for multiple lower court decisions).
136 Frost, supra note 5, at 1108-09; see also Trammell, supra note 3, at 100 (“[N]ationwide injunctions are not
categorically forbidden. Rather, [concerns around] not wanting to freeze the law after a single lawsuit, facilitating
percolation, and not forcing the government to appeal every adverse decision . . . should inform whether a nationwide
injunction is proper.”); Malveaux, supra note 134, at 58.
137 See, e.g., Mila Sohoni, The Power to Vacate a Rule, 88 GEO.WASH. L. REV. 1121, 1184 (2020); Malveaux, supra
note 134, at 58 (“[T]here are occasions when an issue is sufficiently ripe and particularly pressing such that it should be
ruled on sooner rather than later.”).
138 Michael Coenen & Seth Davis, Percolation’s Value, 73 STAN. L. REV. 363, 367 (2021); cf. Rendleman, supra note
19, at 947-48 (“Fostering percolation is not a policy that is persuasive enough to override a judge’s ability to grant a
nationwide national government injunction when circumstances otherwise warrant that relief.”).
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Relief for Non-Parties
One feature of nationwide injunctions is that, because they bar enforcement of a challenged law
or policy in its entirety, they may provide relief for persons who are not parties to the litigation.
As discussed above, some scholars raise constitutional objections to court orders that grant relief
to non-parties.139 Commentators also debate other legal issues related to relief for non-parties via
nationwide injunctions.
Discussion in this area often compares nationwide injunctions with class action lawsuits, in which
one or more representative plaintiffs bring suit on behalf of others who are similarly situated.140
Like nationwide injunctions, class actions have also generated their own share of scholarly
discussion and calls for reform.141 However, class actions are explicitly authorized and governed
by the Federal Rules of Civil Procedure, so commentary comparing nationwide injunctions with
class actions often invokes class actions as a legitimate and widely-accepted vehicle for courts to
award far-reaching relief.142
Some critics of nationwide injunctions cite the explicit authority for class actions under Federal
Rule of Civil Procedure 23 and distinguish nationwide injunctions as improperly allowing parties
to circumvent established class action procedures.143 For instance, Professor Morley disapproves
of the fact that some courts have cited the availability of nationwide injunctions as a reason for
denying class certification.144 He also asserts that individual suits seeking nationwide injunctions
resemble “spurious” class actions, which were permitted under an earlier version of Rule 23, but
which 1966 amendments to the rule sought to eliminate.145 Some commentators state that
nationwide injunctions conflict with Supreme Court caselaw, and that, in the absence of class
certification, an “action is not properly a class action” and should not be treated as such.”146
Some defenders of nationwide injunctions counter that nationwide injunctions are analogous to
class actions, serving many of the same interests and raising some of the same concerns.147 Some
go further, asserting that nationwide injunctions may avoid certain legal concerns unique to class
actions.148 In response to arguments that broad injunctive relief is only appropriate in formal class
actions, some commentators view those arguments as overly restrictive because class action
proceedings are burdensome and time-consuming.149 They also reason that nationwide injunctions
139 See supra “Constitutional Considerations.”
140 See Fed. R. Civ. P. 23; 75 Charles Alan Wright et al., FEDERAL PRACTICE AND PROCEDURE § 1751 et seq. (3d ed.
2021).
141 See generally, e.g., Richard Marcus, Evolution v. Revolution in Class Action Reform, 96 N.C. L. REV. 903 (2018).
142 Fed. R. Civ. P. 23.
143 E.g., Smith, supra note 111, at 2026-28; Williams, supra note 120, at 319; Bray, supra note 4, at 464-65.
144 Morley, supra note 32, at 504 (“some courts use their ability to completely enjoin enforcement of a law through a
Defendant-Oriented Injunction as a justification for refusing to certify a proposed class, on the grounds that class
certification is purportedly unnecessary”); see also id. at 507-08.
145 Id. at 501.
146 Id. at 510 (citing Baxter v. Palmigiano, 425 U.S. 308, 310 n.1 (1976)); see also Larkin & Canaparo, supra note 50,
at 65.
147 See, e.g., Rendleman, supra note 19, at 957-59; Trammell, supra note 3, at 114.
148 Frost, supra note 5, at 1109 (arguing that because class actions bind class members, even those who do not
participate in the litigation, but nationwide injunctions do not, nationwide injunctions avoid “due process concerns that
can arise in the class action context”); see also Trammell, supra note 3, at 114-15.
149 E.g., Rendleman, supra note 19, at 959; Malveaux, supra note 134, at 59.
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are not necessarily a way of circumventing class actions because not all cases where nationwide
injunctions are warranted could satisfy class certification standards.150
The issue of relief for non-parties extends beyond the class action context. For instance,
according to some commentators, granting relief to non-parties may be counterproductive,
sometimes even providing supposed benefits to persons who do not want them.151 Professor
Morley goes further, arguing that nationwide injunctions may violate the due process rights of
third parties by, among other things, “allowing a court to adjudicate and enforce their rights
without first giving them notice and an opportunity to be heard or opt out.”152 Others counter that
courts already issue orders that benefit non-parties in a variety of widely accepted contexts, such
as the abatement of a nuisance or a determination of title to property.153
Some scholars prefer to focus on the government defendant subject to a nationwide injunction
rather than the parties and non-parties who benefit from the injunction.154 Because a nationwide
injunction does no more than bind a defendant who is subject to the court’s jurisdiction, they
argue, it is a legitimate exercise of the court’s equitable power.155 The shift in focus from parties
to beneficiaries “directs attention to the public and away from the defendant,” according to one
commentator, obscuring the key fact that the court has jurisdiction over the defendant and the
power to enjoin the defendant.156
The same commentator also asserts that concerns about relief for non-parties are overstated
because, “[i]f a defendant violates an injunction, a nonparty lacks the legal ability to enforce it;
only the plaintiff or the judge can enforce the injunction with civil or criminal contempt.”157 Thus,
while non-parties may receive incidental benefits from a nationwide injunction, they do not
receive the same right of enforcement as a prevailing plaintiff.158 Another commentator argues
that limiting federal courts’ authority to issue nationwide injunctions based on concerns about
relief for non-parties could “strip federal courts of much of their remedial power over defendants
in ‘nationwide injunction’ cases” and leave the political branches unchecked.159
Collateral Estoppel
Some commentators suggest that nationwide injunctions may conflict with Supreme Court
doctrine holding that the federal government is not subject to non-mutual collateral estoppel.160
The doctrine of collateral estoppel generally means that a party that has had an opportunity to
litigate an issue fully in one case may not relitigate the same issue in future cases. However, the
150 E.g., Malveaux, supra note 134, at 59 (citing Bray, supra note 4, at 476).
151 Morley, supra note 32, at 517; cf. Rendleman, supra note 19, at 950-51 (explaining that injunctions may either
benefit or harm non-parties).
152 Morley, supra note 32, at 527-31.
153 Sohoni, supra note 4, at 932; see also Pedro, supra note 30, at 870-71 (“The potential ideological bias in framing the
targeted injunctions as ‘nationwide injunctions’ also serves to make these injunctions seem legally exceptional and
controversial even if they aren’t.”).
154 Rendleman, supra note 19, at 955; Pedro, supra note 30, at 871-72.
155 Rendleman, supra note 19, at 955.
156 Id.
157 Id. at 954.
158 Id.
159 Pedro, supra note 30, at 871-72.
160 E.g., Morley, supra note 32, at 517-18 (citing United States v. Mendoza, 464 U.S. 154, 158 (1984)); Larkin &
Canaparo, supra note 50, at 66-72.
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Supreme Court held in United States v. Mendoza that the federal government was not subject to
non-mutual collateral estoppel, meaning the government may relitigate issues on which it loses in
future cases involving different parties.161 The Supreme Court held that litigation against the
government should be treated differently than other cases, “both because of the geographic
breadth of Government litigation and also, most importantly, because of the nature of the issues
the Government litigates.”162 The Court also cited the percolation concerns discussed above,
explaining that applying non-mutual collateral estoppel against the government “would
substantially thwart the development of important questions of law by freezing the first final
decision rendered on a particular issue.”163
Nationwide injunctions have a similar practical effect to non-mutual collateral estoppel, and as
the foregoing discussion shows, they raise concerns related to those the Supreme Court identified
in Mendoza. Some critics of nationwide injunctions therefore contend that such injunctions are
inconsistent with Mendoza.164 On the other hand, one scholar believes that such a reading of
Mendoza is too broad, and that in fact “Mendoza does not reflect a categorical approach to nonmutual preclusion against the government.”165 Likewise, he argues, “nationwide injunctions are
not categorically forbidden.”166
Other commentators question whether Mendoza is relevant to the debate over nationwide
injunctions. Mendoza did not involve a nationwide injunction, and some scholars assert that the
considerations that supported the holding in Mendoza do not apply in the context of nationwide
injunctions.167 One scholar goes further, emphasizing that Mendoza was wrongly decided because
it improperly grants the government special treatment.168 He advocates that Mendoza should be
overruled or, at a minimum, should not be extended to the context of nationwide injunctions.169
Fairness, Efficiency, and Governance
Nationwide injunctions also implicate questions of fairness, judicial efficiency, and good
governance. Commentators point to each of these considerations both to critique and to defend
nationwide injunctions.
With respect to fairness, some commentators argue that nationwide injunctions promote fairness
and uniformity by treating all regulated parties alike.170 They assert that it is fairer to pause a
challenged policy with respect to everybody rather than to block the policy for some while others
161 Mendoza, 464 U.S. at 158.
162 Id. at 159.
163 Id. at 160.
164 Morley, supra note 32, at 518; Larkin & Canaparo, supra note 50, at 66-72.
165 Trammell, supra note 3, at 100.
Id.; see also Smith, supra note 111, at 2022 (“Although I agree with Professor Clopton that Mendoza and Califano
are not wholly incompatible, I agree with Professor Morley that some of Mendoza’s policy reasoning ought to be
applied to nationwide injunctions as well.”).
167 See, e.g., Frost, supra note 5, at 1113.
168 Zachary D. Clopton, National Injunctions and Preclusion, 118 MICH. L. REV. 1, 21-29 (2019).
169 Id. at 38-45.
170 E.g., Malveaux, supra note 134, at 61; Rule by District Judge: The Challenges of Universal Injunctions: Hearing
Before the S. Comm. on the Judiciary, 116th Cong. 6 (2020) (statement of Prof. Mila Sohoni); see also, e.g., Wirtz v.
Baldor Electric Co., 337 F.2d at 534. (“[A] court order enjoining the Secretary’s determination for the sole benefit of
[the] plaintiffs-appellees who have standing to sue would . . . give them an unconscionable bargaining advantage over
other firms in the industry.”).
166
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remain subject to it—particularly when some persons subject to a law or policy may not be able
to challenge it.171 Others counter that consistency does not warrant entering an injunction that is
broader than necessary, that other procedures (such as class actions) can adequately protect the
rights of absent stakeholders, or that it is fair for different persons to be treated differently when
they make different choices about whether and how to challenge a law or policy.172 Some critics
of nationwide injunctions also describe such injunctions as unfairly imposing a heightened burden
on the government.173 This disproportionate burden occurs when multiple plaintiffs file separate
suits seeking nationwide injunctions against a single government policy: the failure of a plaintiff
in one case to obtain a nationwide injunction is not fatal to another plaintiff’s request in another
case, but only one plaintiff needs to prevail against the government for a policy to be blocked in
its entirety.174 As one commentator has written, “the government has to run the table. But the
challengers . . . can shop ‘till the rule drops.”175
With respect to judicial efficiency, some feel that nationwide injunctions promote the efficient use
of judicial resources. They assert that requiring every person affected by a challenged policy to
bring suit challenging the policy in order to obtain relief may place a heavy burden on the
members of the public bringing those suits and the federal courts that hear the cases.176 However,
other competing considerations, such as the need for thorough and reliable judicial decisions, may
outweigh the interest in efficiency.177 Furthermore, the availability of class actions may mitigate
efficiency concerns around the need for multiple lawsuits.178 Relatedly, one commentator argues
that allowing plaintiffs to circumvent class actions can “jeopardize” efficiency by “undermin[ing]
the court’s ability to consider the full range of relevant facts and interests when determining
liability and fashioning relief.”179
There is also controversy about whether nationwide injunctions tend to support or undermine
general ideals of good governance. According to critics, such injunctions can improperly prevent
the government from implementing its chosen policies.180 Some cite cases in which a series of
nationwide injunctions halted multiple attempted changes to particular policies, leaving the
171 E.g., Malveaux, supra note 134, at 61; Sohoni, supra note 170, at 6. Persons who oppose a law or policy may be
unable to challenge it in court for various reasons. Some may lack the resources to bring suit. Others may oppose the
policy but lack standing to sue. Some, such as individuals located abroad, may be unable to participate in U.S. court
proceedings as a practical matter.
172 E.g., Bray, supra note 4, at 473-76; Smith, supra note 111, at 2026-28; E. Bay Sanctuary Covenant v. Barr, 934 F.3d
1026, 1030 n.8 (9th Cir. 2019) (“[T]he fact that injunctive relief may temporarily cause the Rule to be administered
inconsistently in different locations is not a sound reason for imposing relief that is broader than necessary.”).
173 E.g., Morley, supra note 32, at 494; Williams, supra note 120, at 319.
174 E.g., Cass, supra note 37, at 43-44 (noting the “the asymmetry of the stakes” and arguing, “[g]iven the usual rules of
estoppel and enforcement of injunctions, a win for the government does not end litigation, while a win anywhere,
anytime for plaintiffs effectively precludes the enjoined officials or offices from continuing to apply the policy.”).
175 Bray, supra note 7, at 4-5.
176
E.g., Rendleman, supra note 19, at 947 (“If the issues are clearly drawn, judicial economy militates against multiple
lawsuits and delayed relief.”); Frost, supra note 5, at 1101 (“In at least some cases, efficiency and judicial economy
support a nationwide injunction over dozens (or more) lawsuits challenging the same practice.”); see also Nat'l Mining
Ass'n v. U.S. Army Corps of Eng'rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998); Chicago v. Sessions, 888 F.3d 272, 289
(7th Cir. 2018) (explaining that nationwide injunctions “can be beneficial in terms of efficiency and certainty in the
law, and more importantly, in the avoidance of irreparable harm and in furtherance of the public interest.”).
177 Larkin & Canaparo, supra note 50, at 70.
178 E.g., Morley, supra note 35, at 20.
179 Maureen Carroll, Aggregation for Me, but Not for Thee: the Rise of Common Claims in Non-Class Litigation, 36
CARDOZO L. REV. 2017, 2021 (2015).
180 E.g., Williams, supra note 120, at 317; Bagley, supra note 42, at 6-9.
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federal government unable to make changes for many years.181 Similarly, some posit that
nationwide injunctions can create uncertainty for regulated parties and the public at large,
particularly if different courts halt and then restart challenged policies.182 Moreover, if different
plaintiffs seek nationwide injunctions in multiple cases, there is a risk that the government may
become subject to incompatible requirements under different court orders.183 However, it is not
clear that such conflicting injunctions actually issue in a meaningful number of cases.184
A contrary view is that nationwide injunctions support good governance by preventing the
implementation of laws and policies that are likely to be held unconstitutional or otherwise
invalid.185 Some rules can be challenged before they become effective, and suspending those rules
before they go into effect may serve general notions of justice and the rule of law and prevent the
instability and waste of resources that could occur if challenged policies take effect only to be
invalidated later.186 Defenders of nationwide injunctions perceive broad injunctive relief as
appropriate when a challenged policy is blatantly unconstitutional or represents severe overreach
by the political branches.187 Some courts have similarly held that broad injunctions against
unlawful policies may serve the public interest.188
The Role of the Judiciary
Discussion of nationwide injunctions may also raise questions around the proper role of the
judiciary within the federal government. In considering this question, scholars sometimes
distinguish between a “dispute resolution” model of judicial review—where courts exist only to
resolve discrete disputes between specific parties—and a “law declaration” model of judicial
review—where courts announce the law as a general matter, not just as it applies in a given
181 Bagley, supra note 42, at 6-9 (citing examples including litigation around rules interpreting the phrase “waters of the
United States” and noting it was possible that “neither the Obama administration nor the Trump administration may
ever actually be able to put into effect rules to address the Supreme Court’s concerns [with a prior rule]. This is no way
to run a government.”).
182 Id. at 9; cf. Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial Powers of the Lower
Courts, 97 B. U. L. REV. 615, n.21 (2017) (“The impact of orders of varying breadth from federal district and circuit
courts throughout the nation also contributed to substantial uncertainty on the path to the Supreme Court’s ruling
upholding the right to same-sex marriage in Obergefell v. Hodges, 135 S. Ct. 2584, 2591 (2015).”).
183 E.g., Morley, supra note 32, at 504-05; see also DHS v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J.,
concurring) (“[T]he routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the
government, courts, and all those affected by these conflicting decisions.”).
184 Bert I. Huang, Coordinating Injunctions, 98 TEX. L. REV. 1131, 1332 n.11 and sources cited (2020). Professor
Huang suggests that to decrease further the risk of conflicting injunctions, “[e]ach district judge should issue or stay her
injunction in accordance with the outcome she thinks most district judges would choose.” Id. at 1335 (emphasis
removed).
185 Rendleman, supra note 19, at 898 (“Federal courts use national government injunctions as remedies to stop
improper measures from the two political branches and to protect citizens’ constitutional and other substantive rights. A
nationwide national government injunction may be the only way to extend complete relief to plaintiffs, protect their
entitlements, and to avoid illegal or unconstitutional government policies that harm thousands of others.”).
186 E.g., AliKhan, supra note 8, at 3-4; Cass, supra note 37, at 60 (noting that parties may expend resources they cannot
recover if required to comply with unlawful regulations and concluding, “Where there is a strong showing of regulatory
overreach—of a decision that exceeds legal authority or of a basis for action that transgresses constitutional strictures—
courts appropriately may enter broader injunctive relief while review proceeds.).
187 E.g., Rendleman, supra note 19, at 906-11.
188 See, e.g., Wirtz v. Baldor Electric Co., 337 F.2d 518, 534-35 (D.C. Cir. 1963) (stating that the lawsuit sought to
“vindicate the public interest in having congressional enactments properly interpreted and applied” and concluding,
“As it is principally the protection of the public interest with which we are here concerned, no artificial restrictions of
the court’s power to grant equitable relief in the furtherance of that interest can be acknowledged.”).
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case.189 Some critics of nationwide injunctions assert that the power of the federal courts is or
should be limited to dispute resolution; nationwide injunctions are inconsistent with this view
because they constitute law declaration in that they determine how the law applies to parties and
non-parties alike.190 In this view, when the courts embrace the law declaration model of judicial
review by granting nationwide injunctions, they overstep their role and may encroach on the
domain of the political branches.191 Some specifically worry that courts issuing nationwide
injunctions usurp Congress’s legislative function or contravene the intent of the Framers in
establishing the nation’s constitutional system of separation of powers.192
By contrast, many scholars perceive federal courts as properly taking on both dispute resolution
and law declaration roles.193 Some find support for this view in writings of the Framers, including
Alexander Hamilton’s statement in Federalist No. 33 that acts of Congress “which are not
pursuant to its constitutional powers” will not “become the supreme law of the land. These will
be merely acts of usurpation, and will deserve to be treated as such.”194 Similarly, in one of the
foundational cases of American law, Marbury v. Madison, Chief Justice Marshall wrote that “[i]t
is emphatically the duty of the Judicial Department to say what the law is.”195 Marbury
established the longstanding practice of judicial review of the actions of the political branches,
which is arguably consistent with the law declaration model of judicial power.196 Scholars also
cite more recent examples of judicial doctrines expressly contemplating that federal court
decisions will reach beyond the immediate parties to the case.197 Several defenders of nationwide
injunctions support such injunctions as promoting separation of powers interests by preventing
overreach by the political branches.198
In response to concerns around expansion of the judicial role, Professor Frost asserts that the
federal government as a whole has expanded its reach since the Founding, with the political
branches—and especially the executive branch—increasingly implementing policies with
189 See, e.g., Frost, supra note 5, at 1987 & n.103.
190 See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2027-28 (2018) (Thomas, J., concurring) (“Misuses of judicial power,
[Alexander] Hamilton reassured the people of New York, could not threaten ‘the general liberty of the people’ because
courts, at most, adjudicate the rights of “individual[s].”) (quoting The Federalist No. 78 (Alexander Hamilton); Cass,
supra note 37, at 33; Bray, supra note 4, at 449-52, Wasserman, supra note 62, at 355.
191 E.g., Bray, supra note 4, at 471; Morley, supra note 35, at 40.
192 E.g., Cass, supra note 37, at 57-59; Larkin & Canaparo, supra note 50, at 63 (“Because a universal injunction
partakes more of the nature of a ‘Law’ than a judgment resolving a ‘Case’ or ‘Controversy,’ the decision made at the
Constitutional Convention to confine the judiciary to the latter is powerful evidence that courts should limit themselves
to entering a judgment that does no more than resolve the case at hand and remedy the injury suffered by the parties.”);
see also Trump v. Hawaii, 138 S. Ct. at 2026-29 (Thomas, J., concurring).
193 See, e.g., Frost, supra note 5, at 1087 (“Federal courts serve a dual function: They exist to resolve disputes between
the parties before them and also to declare the meaning of law for everyone. Scholars dispute the degree to which law
declaration is merely incidental to dispute resolution, rather than an independent and significant aspect of the judicial
power.”).
194 Rendleman, supra note 19, at 893-94.
195 Marbury v. Madison, 5 U.S. 137, 177 (1803).
196 See, e.g., Frost, supra note 5, at 1087 n.103; Rendleman, supra note 19, at 894.
197 See Frost, supra note 5, at 1083 (“When a court finds that a statute is unconstitutional on its face, it does not hold
that the statute applies to everyone but the plaintiff; rather, it holds that the statute is invalid. Likewise, as the D.C.
Circuit has explained, ‘when a reviewing court determines that agency regulations are unlawful, the ordinary result is
that the rules are vacated—not that their application to the individual petitioners is proscribed.’”) (quoting Nat’l Mining
Ass’n v. U.S. Army Corps of Eng'rs, 145 F.3d 1399, 1409 (D.C. Cir. 1988)) (additional citation omitted).
198 E.g., Rendleman, supra note 19, at 898; Frost, supra note 5, at 1088-89; Pedro, supra note 30, at 873.
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nationwide effect.199 It is thus appropriate, in her view, for the judiciary to take on additional
authority to check the expanded reach of the political branches, particularly when the political
branches abuse their authority.200 Another scholar reasons that the political branches may
strategically choose to act in ways they believe push or even exceed constitutional limits, and that
possibility “complicates efforts to assess when courts are intruding into the political domain, as
opposed to merely fulfilling legitimately assigned tasks consistent with the limited domain set
forth in the Constitution and elaborated in statutes.”201 Limits on nationwide injunctions may thus
impair the ability of the courts to provide a legitimate and necessary check on the political
branches.202 In her analysis of nationwide injunctions under the APA, Professor Sohoni contends
that critiques of nationwide injunctions in fact serve to undermine judicial legitimacy, and that
even if the Supreme Court limited the courts’ ability to issue such relief, it might not “dispel the
cloud of criticism from political actors looming over the federal courts today.”203
Politicization of the Courts
A separate debate around the role of the courts concerns whether an increase in nationwide
injunctions raises issues related to politicization of the judiciary. Traditionally, many have viewed
the federal courts as non-political entities and stressed that the non-political nature of courts
fosters public confidence in judicial impartiality.204 However, cases involving nationwide
injunctions often involve high-stakes political issues and litigants that split along partisan political
lines.205 As Professor Ronald Cass has written:
[T]he pattern that emerges is the routine use of suits seeking nationwide injunctions in
highly politically salient cases with relatively consistent blocs of public officials and
interest groups, from relatively consistent parts of the nation, lining up in opposition.
Reflecting the same pattern seen in the actual political arena, suits by Republicans from
“red states” opposed President Obama’s administration on matters related to health care,
environmental and public land regulation, and immigration, while suits by Democrats from
“blue states” have opposed President Trump’s administration on those same issues.206
199 Frost, supra note 5, at 1081 (“[F]ederal courts’ equitable authority should keep pace with the expansion of the
political branches’ role in enacting laws and implementing policies with nationwide effect.”); id. at 1090 (“Although
nationwide injunctions have been issued more frequently over the last fifty years, that may be the natural response to
the expansion of federal law and the recent increase in major policy changes made through unilateral executive
action.”).
200 Id. at 1088 (“If courts are limited to deciding individual cases and lack the power to issue broader injunctions, then
they lose a significant tool with which to curb abuses of power by the other branches. Nationwide injunctions are an
essential means by which courts can halt unconstitutional or illegal federal policies that may cause irreparable harm to
thousands or millions of people.”).
201 Cass, supra note 37, at 61-62; see also Michael S. Greve, Clean Power, Dirty Hands, LAW & LIBERTY (Feb. 1,
2016) https://lawliberty.org/clean-power-dirty-hands/ (last visited Sept. 4, 2021).
202
See Pedro, supra note 30, at 871-2 (“If federal courts no longer had (or began to choose not to use) remedial
authority to prevent defendants from violating the Constitution or statutes . . . then the only significant restraint on
defendants would be whatever limit each defendant chose to put on itself.”); id. at 873 (“Taking these potentially
misguided arguments to their logical ends would likely strip the federal judiciary of authority to adjudicate the disputes
legitimately before the courts, which could create separation of powers and judicial supremacy problems.”).
203 Sohoni, supra note 137, at 1189, 1191.
204 See, e.g., Williams, supra note 120, at 319-20; Cass, supra note 37, at 60-62; see also The Federalist No. 79
(Alexander Hamilton) (describing measures to ensure “the complete separation of the judicial from the legislative
power”).
205 Cass, supra note 37, at 53; see also Morley, supra note 32, at 519-20.
206 Cass, supra note 37, at 53.
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In Professor Cass’s view, this pattern risks “[i]nserting the judiciary into quintessentially political
fights, even when there is a substantial legal issue to be decided on recognizably legal grounds,”
and it reinforces “the perception that judges base decisions on political preferences, or at least are
affected by those preferences.”207 Many observers do attribute political motivations to judges who
issue nationwide injunctions in high-profile cases,208 and some of the leading academic
commentary also suggests that courts may have political leanings that affect nationwide
injunction cases.209 Some scholars dismiss concerns about politicization, stating that the judiciary
was significantly politicized before the current debate around nationwide injunctions arose, or
that nationwide injunctions are not unique among the many factors that contribute to the
politicization of the judiciary.210 As a practical matter, nationwide injunctions give courts a
powerful tool that has a greater potential to affect the policy sphere than narrower, plaintifforiented injunctions.211
Related to concerns around politicization, multiple commentators suggest that nationwide
injunctions may increase the incentive for plaintiffs to forum shop—that is, to seek out courts or
even individual judges that they believe are likely both to disapprove of a challenged policy and
to enjoin it broadly.212 One scholar asserts that nationwide injunctions create “incredibly strong
incentives for plaintiffs to rush to file suit in jurisdictions thought most likely to provide a
sympathetic forum for their claims. The first judge to decide a matter frequently has an outsized
impact on the development of the law with respect to that specific issue.”213 If the court rules in
favor of plaintiffs who selected the forum, it may compound perceptions both that the judiciary is
politicized214 and that improper political considerations have influenced the relief granted in the
207 Id. at 53-54; see also id. at 54-55 (stating that even if courts do not routinely decide cases based on political
considerations, “when politically active parties engage courts in challenges to decisions made in the political domain it
is difficult to separate the resulting decisions from an appearance of judicial entanglement with politics.”).
208 E.g., Mark Joseph Stern, Conservative Judges Keep Doing This Thing They Say They Hate, SLATE (June 16, 2021)
https://slate.com/news-and-politics/2021/06/conservative-judges-nationwide-injunction-biden.html (“Republicans’
crusade against nationwide injunctions stopped dead in its tracks when Joe Biden entered the White House. Since Jan.
20, 2021, GOP state attorneys general have already sought and received multiple nationwide injunctions against
Biden’s policies—all from conservative judges.”); Rick Lowry, Judges for the #Resistance, POLITICO (Apr. 25, 2018)
https://www.politico.com/magazine/story/2018/04/25/judges-for-the-resistance-218104/ (“There is a lawlessness
rampant in the land, but it isn’t emanating from the Trump administration. The source is the federal judges who are
making a mockery of their profession by twisting the law to block the Trump administration’s immigration priorities.”).
209 E.g., Bray, supra note 4, at 459-60 (“It is no accident which courts have given the major national injunctions in the
last three administrations. In the George W. Bush Administration, it was federal courts in California. In the Obama
Administration, it was federal courts in Texas. Now, in the Trump Administration, the national preliminary injunctions
have come from federal courts in several less conservative circuits (the Fourth, Seventh, and Ninth).”).
210 E.g., Rendleman, supra note 19, at 93-46.
211 E.g., Bray, supra note 4, at 460.
212 Cass, supra note 37, at 42-51; Bray, supra note 4, at 460 (“The pattern is as obvious as it is disconcerting. Given the
sweeping power of the individual judge to issue a national injunction and the plaintiff’s ability to select a forum, it is
unsurprising that there would be rampant forum shopping.”); Getzel Berger, Note, Nationwide Injunctions Against the
Federal Government: A Structural Approach, 92 N.Y.U. L. REV. 1068, 1091 (2017) (Nationwide injunctions
“incentivize[] an extreme race to courthouses more inclined to issue nationwide injunctions and more sympathetic to
the plaintiff's position.”).
213 Cass, supra note 37, at 42; see also id. at 43 (“[T]he less sweeping the potential remedy, the lower the benefit from
raising the odds of obtaining it.”).
214 Id. at 48 (“[F]orum shopping self-consciously seeks out judges who lie at an extreme among the relevant class of
judges, because the most extreme judges have the greatest probability of deciding a matter in a way that correlates with
the interests of one party to a dispute” and the practice “underscores the widely shared perception that at least some
judges can be expected to make decisions that are heavily influenced by personal inclinations.”).
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particular case.215 It may also motivate future plaintiffs to engage in forum shopping.216 However,
some commentators doubt that nationwide injunctions significantly increase the incentive to
forum shop because the incentive to seek out a favorable judge is strong regardless of the specific
relief a plaintiff seeks.217 Others recommend that Congress or the courts could mitigate forum
shopping through the use of targeted procedural reforms.218
Special Contexts
Some commentators have suggested that nationwide injunctions may be more or less appropriate
in certain specific circumstances, which may depend on which court is considering a case, the
parties to the litigation, or the subject matter at issue.
Supreme Court Versus Lower Courts
Some contend that nationwide injunctions are least appropriate when issued by the trial-level
district courts, but raise fewer concerns when they are issued by the Supreme Court.219 Supreme
Court decisions bind all lower federal courts and control future Supreme Court cases that raise the
same legal issues through the doctrine of stare decisis.220 By contrast, district court decisions do
not control the outcome of future cases.221 While judges in other cases may look to prior district
court decisions as persuasive authority and adopt their reasoning if they find it compelling, they
are not required to do so.222 Appellate court decisions occupy a middle ground: they act as
binding precedent in the judicial circuit where they issue, controlling the outcome of cases raising
the same legal issues in the same appeals court and the district courts within the circuit.223 Outside
the issuing circuit, appeals court decisions constitute only persuasive authority.224
Because the Supreme Court’s resolution of legal issues is binding on all federal courts, some
commentators argue that Supreme Court orders are similar to nationwide injunctions as a
practical matter. As one commentator writes, “whether an injunction affirmed (or otherwise
entered) by the Supreme Court technically is nationwide, no one would understand the effect of
the Court’s holding to extend only to the parties to the suit in question.”225 On the other hand,
when a district court issues a nationwide injunction, its legal reasoning carries no greater
precedential weight than any other district court decision—the ruling does not bind other federal
courts considering the same legal issue. However, because a nationwide injunction bars
215 See supra note 208.
216 Id. at 51 (Politicization “is the cause and consequence of forum shopping for the cases that are most publicly notable
and of most concern.”).
217 E.g., Frost, supra note 5, at 1105-06; Rendleman, supra note 19, at 938-39; Malveaux, supra note 134, at 57.
218 E.g., Frost, supra note 5, at 1105-06; Trammell, supra note 3, at 109. For discussion of selected proposals, see infra
“Substantive Regulations.”
219 E.g., Morley, supra note 32, at 501-02.
220 See generally CRS Report R45319, The Supreme Court’s Overruling of Constitutional Precedent, by Brandon J.
Murrill.
221 Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011).
222 Cass, supra note 37, at 65.
223 See generally Joseph W. Mead, Stare Decisis in the Inferior Courts of the United States, 12 NEV. L.J. 787 (2012).
224 See id.
225 Nash, supra note 89, at 1997. For similar reasons, nationwide injunctions may raise fewer concerns when issued by
a lower federal court that enjoys exclusive jurisdiction, such as the D.C. Circuit exercises in certain APA litigation. See
Cass, supra note 37, at 76.
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enforcement of a law or policy in its entirety, some commentators argue that a district court
entering a nationwide injunction deprives other courts that may consider the issue of practical
power to rule differently, thus improperly expanding the power of the district courts. One scholar
contends, “if a lower court decision were binding on other courts . . . each lower court exercising
that power would in effect enjoy the power of the Supreme Court.”226 He reasons that this power
would constitute a “realignment of authority . . . clearly at odds with the long-accepted structure
of, and constitutional design for, the federal judiciary.”227
Other scholars contend that it does not matter whether a nationwide injunction issues from a
district court, an appeals court, or the Supreme Court. Some commentators assert that the
Constitution “confers a singular power upon all federal courts to decide ‘Cases [] in . . . Equity.’ It
does not allocate different types of equitable remedial power to courts at different levels of the
federal judicial hierarchy.”228 Thus, there is no reason why the Supreme Court should have more
authority than a district court to grant a certain form of relief.229 With respect to concerns about
district courts assuming power out of proportion with the precedential weight of their decisions,
one commentator offers that such concerns are overstated because non-binding persuasive
authority plays a significant role in judicial decisionmaking. Specifically, he argues that while
decisions of the lower federal courts do not formally bind federal courts in other jurisdictions, as
a practical matter, “[w]hen the law is developing rapidly in trial courts and there is very little
appellate law on the issue,” federal courts often look to cases from other districts or circuits as
persuasive authority.230
State and Organizational Plaintiffs
Some commentators argue that nationwide injunction cases involving certain plaintiffs raise
unique legal issues, especially related to the plaintiffs’ standing to sue.231 One area that has
prompted scholarly discussion is suits by state governors or attorneys general seeking to protect
the rights or interests of their residents.232 For instance, one commentator postulates that Article
III standing doctrine allows states to seek nationwide injunctions, but imposes some limits on the
practice.233 He ultimately concludes that state standing to seek nationwide injunctions should be
no broader than individuals’ standing to do so, with the possible exception of “settings where no
nonstate plaintiff has standing to sue in the first place.”234 Another pair of scholars offer that
special considerations should apply when states seek a nationwide injunction.235 Those scholars
226 Cass, supra note 37, at 66.
227 Id. Among several possible reforms related to nationwide injunctions, Professor Morley suggests giving district
court decisions some stare decisis effect so that courts would have less incentive to issue nationwide injunctions,
although he acknowledges that this reform could have unintended effects outside the area of nationwide injunctions.
See Morley, supra note 35, at 53-56.
228
Sohoni supra note 4, at 927 (quoting U.S. CONST. art. III, § 2, cl. 1).
229 Id.; see also Trammell, supra note 3, at 78-81.
230 Rendleman, supra note 19, at 948-49.
231 For discussion of general standing issues related to nationwide injunctions, see supra “Constitutional
Considerations.”
232 See generally Nash, supra note 89; Bradford Mank & Michael E. Solimine, State Standing and National
Injunctions, 94 NOTRE DAME L. REV. 1955 (2019).
233 Nash, supra note 89, at 1987.
234 Id.
235 Mank & Solimine, supra note 232, at 1967-72.
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recommend that courts weigh additional factors such as the number and political leanings of any
states that support or oppose a nationwide injunction.236
A related debate concerns litigation by organizations. Sometimes organizations challenge policies
that do not directly regulate them or their members but that allegedly have substantial indirect
effects on them.237 These situations often arise in the immigration context, for instance when a
university argues that a restrictive immigration policy impairs its ability to attract talented
students and faculty238 or a non-profit that assists refugees asserts that the policy limits its client
pool.239 These circumstances may spur courts to issue nationwide injunctions when it is not
practicable to determine precisely which individuals affected by the policy might have a
relationship with a plaintiff organization.240 However, some commentators argue that even if
nationwide injunctions are appropriate in some cases, they may be less appropriate “to provide
complete relief to an organizational plaintiff whose members are only indirectly affected by the
challenged order.”241 In the alternative, they suggest, a court might enter an injunction that
protects only the plaintiff organization and “leave to later enforcement efforts whether the person
targeted for future enforcement of the challenged law is connected to the named plaintiff and thus
protected by the injunction.”242
Judicial Review of Agency Action
There is significant scholarly discussion around the proper role of nationwide injunctions in
litigation under the APA.243 The APA provides for judicial review of certain types of rulemaking
and other actions of executive agencies, and therefore often provides the basis for cases seeking
nationwide injunctions.244 Section 706 of the statute provides that a court reviewing agency action
under the APA “shall . . . hold unlawful and set aside agency action, findings, and conclusions”
that the court finds to be “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,” unconstitutional, or deficient in any of several other enumerated
respects.245 Although the APA does not expressly authorize courts to issue nationwide
injunctions,246 this statutory language arguably provides a stronger basis for nationwide
injunctions in APA cases than in other kinds of cases. The D.C. Circuit, which handles a large
236 Id. at 1973-77.
237 This situation is distinct from cases where an organization brings suit on behalf of its members, claiming that they
are directly affected by a challenged policy. For instance, non-profit organizations challenging environmental
regulations often submit affidavits from their members asserting that specific individuals experience harm due to the
challenged policy in specific locations across the United States. If such claims of harm are sufficiently widespread, they
may also support issuance of a nationwide injunction. See, e.g., S.C. Coastal Conservation League v. Pruitt, 318 F.
Supp. 3d 959, 969 (D.S.C. 2018).
238 See, e.g., Hawaii v. Trump, 859 F.3d 741, 789 (9th Cir. 2017); Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir.
2017).
239 See, e.g., International Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 548-49 (D. Md. 2017).
240 See, e.g., Frost, supra note 5, at 1098-1100.
241 Smith, supra note 111, at 2033 (emphasis added); see also Morley, supra note 32, at 546 (“[T]he concept of
organizational standing cannot resolve difficulties concerning the proper scope of relief in individual-plaintiff cases.”).
242 Wasserman, supra note 62, at 371.
243 5 U.S.C. § 500 et seq.
244 See generally CRS Legal Sidebar LSB10558, Judicial Review Under the Administrative Procedure Act (APA), by
Jonathan M. Gaffney; CRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by Jared P.
Cole.
245 5 U.S.C. § 706.
246 See, e.g., Williams, supra note 120, at 319.
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volume of APA litigation, has held that nationwide injunctions are often appropriate in APA
litigation: “When a reviewing court determines that agency regulations are unlawful, the ordinary
result is that the rules are vacated—not that their application to the individual petitioners is
proscribed.”247
Many accept the D.C. Circuit’s approach as the conventional wisdom with respect to the
availability of nationwide injunctions under the APA.248 However, the authorization to “set aside”
agency action does not necessarily permit issuance of a nationwide injunction.249 Some scholars
take a historical approach to the analysis, reasoning that nationwide injunctions were rare when
Congress enacted the APA in 1946, and that the Congress that enacted the statute likely did not
intend to authorize broad injunctive relief that marks a significant change from historical practice
up to that point.250 One scholar makes a textual argument, asserting that it does not make sense to
read Section 706 of the APA to authorize nationwide injunctions because that section does not
address remedies, which are governed by another section of the statute.251 Instead, Section 706’s
directive to “set aside” unlawful action simply “means that courts are not to follow the agency
action in deciding the case.”252 Some commentators contend that it is possible, and perhaps
preferable, for courts to set aside agency action only as to individual challengers. Courts could
then allow other regulated parties to assert that legal finding as precedent to prevent enforcement
of the challenged policy in their own cases, “providing a basis for resisting enforcement” on a
case-by-case basis, “rather than precluding enforcement” against all persons in a single injunctive
order.253
Critiques of nationwide injunctions under the APA vary in scope. Some commentators conclude
that nationwide injunctions may be permitted in some APA cases but caution that courts should
grant such remedies sparingly.254 Some scholars insist that the APA categorically does not
authorize nationwide injunctions.255 Under the Trump Administration, DOJ took the position that
the APA does not authorize nationwide injunctions but, if it did so, it would raise constitutional
247 Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989); see also Nat’l Mining Ass'n v. U.S. Army Corps
of Eng’rs, 145 F.3d 1399, 1408-10 (D.C. Cir. 1998). The Supreme Court has not specifically considered whether the
APA authorizes nationwide injunctions against agency action, though the Court has issued nationwide injunctions in
APA cases. See, e.g., West Virginia v. EPA, 136 S. Ct. 1000, 1000 (2016) (mem.).
248 E.g., Sohoni, supra note 137, at 1123; Christopher J. Walker, Quick Reaction to Bray’s Argument that the APA Does
Not Support Nationwide Injunctions, YALE J. REG., NOTICE & COMMENT (May 8, 2018),
https://www.yalejreg.com/nc/quick-reaction-to-brays-argument-that-the-apa-does-not-support-nationwide-injunctions/.
249 E.g., John Harrison, Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or
Other Universal Remedies, 37 YALE J. REG. BULL. 37, 41 (Apr. 12, 2020)
https://digitalcommons.law.yale.edu/jregonline/1 (“The view that Congress has [called for universal remedies] in
section 706 appears to be widespread. Congress has not done so.”).
250 Id. at 45 (looking at the legislative history of the APA and concluding, “For the drafters of the 1937 three-judge
court statute, ‘set aside’ meant treat as non-binding.”); see also Samuel Bray, Does the APA Support National
Injunctions?, VOLOKH CONSPIRACY (May 8, 2018), https://reason.com/volokh/2018/05/08/does-the-apa-supportnational-injunction/; Cass, supra note 37, at 74.
251 Harrison, supra note 249, at 37.
252 Id.
253 Cass, supra note 37, at 73; see also Smith, supra note 111, at 2029 (“Even if the APA requires vacatur of an agency
action, it does not necessarily follow that it also requires an injunction.”); Harrison, supra note 249, at 42 (“In an
enforcement proceeding, for example, to set the agency action aside is to treat it as legally ineffective, the way a court
treats an unconstitutional statute as ineffective.”).
254 E.g., Cass, supra note 37, at 76-77.
255 E.g., Harrison, supra note 249; Bray, supra note 250.
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concerns because “an act of Congress cannot empower the federal courts to exceed the scope of
the judicial power that the Constitution confers on them.”256
The contrary view is that the APA’s authorization to “hold unlawful and set aside agency action”
properly empowers courts to enter nationwide injunctions against impermissible agency action.257
According to Professor Sohoni, in light of pre-APA caselaw and the APA’s text and legislative
history, different considerations apply in challenges to agency action than in facial challenges to
statutes.258 As examples, she points to the text of the statute for support that the “APA empowers
courts to determine rule validity, not just whether the application of the rule is valid.”259 She
analogizes between APA review of agency action and appellate review of lower court decisions:
“When a final decision of a lower court is vacated by an appellate court, that lower-court decision
no longer has force. Similarly, when an agency promulgates a rule that is legally defective, that
rule is an agency action that can likewise be vacated—‘obliterate[d]’—by a reviewing court.”260
Based on this analysis, Professor Sohoni concludes that nationwide injunctions against agency
action under the APA are constitutional261 and that they do not impermissibly expand the power of
lower court judges.262
Subject Matter
Certain types of cases may raise unique considerations related to nationwide injunctions. In
particular, courts and commentators have identified areas where remedies limited to the plaintiffs
arguably do not provide complete relief to the parties before the court. For instance, some courts
have held that in desegregation cases, a court order requiring a segregated facility to admit a
single plaintiff does not fully resolve the issues presented or provide the plaintiff with the full
benefit of attending an integrated facility.263 Similarly, relief in successful challenges to electoral
districts cannot be limited to the parties to the case: as one commentator notes, “[a] state cannot
have one set of congressional or legislative districts for individual plaintiffs in a case and a
different set for everyone else.”264
Environmental regulation is another area where commentators have raised unique considerations
related to nationwide injunctions. Regulated actions in one state, such as the release of
environmental pollutants or harm to endangered species, often affect neighboring states.
Furthermore, federal environmental regulations often apply in multiple states or across the nation.
Thus, some courts and commentators have concluded that it is reasonable for injunctions against
256 Williams, supra note 120, at 319-20; see also DOJ, supra note 8, at 2, 7-8.
257 See generally, Sohoni, supra note 137; see also Frost, supra note 5, at 1100. Some judges and commentators go
further, arguing that the APA requires courts to vacate agency action that they hold to be invalid. See Sohoni, supra
note 137, at 1177 n.288.
258 Sohoni, supra note 137, at 1129-38.
259 Id. at 1133.
260 Id. at 1134 (quoting Daniel B. Rodriguez, Of Gift Horses and Great Expectations: Remands Without Vacatur in
Administrative Law, 36 ARIZ. ST. L.J. 599, 611 (2004)) (alterations in original).
261 Id. at 1180-81 (arguing that Congress has the power to allow the remedy of “universal vacatur” as part of its power
to establish judicial review).
262 Id. at 1181 (“Agencies, after all, exercise nationwide power. And Congress crafted the APA’s remedial scheme to
enlist federal courts to check those agencies. Nothing in the Constitution remotely obligates Congress to limit the
judicial power of lower federal courts so that they may only set aside rules on a plaintiff-by-plaintiff basis.”).
263 See, e.g., Morley, supra note 32, at 491 n.15.
264 Id. at 491.
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environmental policies to block such policies in full.265 Challenges to such regulations may also
be brought by organizations that represent individuals across the country and that seek relief
benefiting members wherever they are located.266 However, litigants do not always seek
nationwide injunctions in cases challenging far-reaching environmental regulations, nor do courts
always grant them.267 Some appellate courts have reversed or narrowed lower court rulings
granting nationwide injunctions in environmental cases.268 Another consideration in
environmental cases is that compliance with environmental regulations may impose substantial
and non-recoverable costs on regulated parties. Thus, some commentators contend that
nationwide injunctions against environmental regulations may be appropriate to prevent the need
for regulated parties to take costly measures until the validity of a regulation is fully
adjudicated.269 On the other hand, some scholars cite environmental litigation as an example of an
area where nationwide injunctions can cause significant disruption and uncertainty if injunctions
stop and start as a case is on appeal or if multiple rounds of regulation are enjoined.270
Some commentators also point to immigration cases as an area where nationwide injunctions may
be especially appropriate. With respect to challenged policies that exclude foreign nationals, some
commentators assert that immigration restrictions may affect certain stakeholders in ways that
make it difficult to target relief. For instance, a university may benefit from the academic,
professional, and financial contributions of an indeterminate class of international students,
faculty, and staff.271 Likewise, states may allege economic consequences from either the
admission or exclusion of foreign nationals.272 Furthermore, immigration policies that bar
individuals from entering the country may create a large class of people who are affected by an
allegedly illegal policy but unable as a practical matter to challenge it in court.273 With respect to
265 E.g., Wyoming v. U.S. Dep’t of Agric., No. 07-CV-017-B, 2009 WL 10670655, at *2 (D. Wyo. June 15, 2009)
(holding, in case challenging a rule limiting road construction in roadless areas in national forests, “Limiting the scope
of the injunction to Wyoming . . . would be illogical. The Rule was enacted and enforced on a nationwide basis. It was
not tailored to address the forests of each state as separate entities. It would make little sense, then, to tailor the remedy
by limiting the injunction to the State of Wyoming. If the Rule is illegal, as this Court has found it to be, then it is
illegal nationwide, just as it was enforced nationwide.”); see also Frost, supra note 5, at 1094 (“[I]t would be difficult
to craft injunctive relief limited to the plaintiff alone, or to a single geographic region, in cases involving easily
dispersed or mobile items, such as cases concerning endangered species or the safety of food or medical devices.”). In
general, the Supreme Court has held that the standard for obtaining an injunction is no more lenient for plaintiffs
alleging environmental violations. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156-58 (2010).
266 E.g., S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959, 968 (D.S.C. 2018).
267 Compare id. (granting nationwide injunction against enforcement of rule interpreting the statutory phrase “waters of
the United States”) with Colorado v. EPA, 445 F. Supp. 3d 1295, 1313 n.12 (D. Colo. 2020), rev’d 989 F. 3d 874 (10th
Cir. 2021) (noting, in challenge to subsequent “waters of the United States” rule, “Colorado does not seek a nationwide
injunction . . . , presumably because Colorado is downstream of no other state, so it is difficult for Colorado to argue
that implementation of the New Rule elsewhere affects Colorado.”).
268 See, e.g., U.S. Army Corps of Engineers v. Northern Plains Res. Council, 141 S. Ct. 190, 190 (Mem) (2020) (upon
review of district court order vacating nationwide permit authorizing discharge of certain dredged or fill material into
jurisdictional waters, staying the district court order “except as it applies to the Keystone XL pipeline”).
269 E.g., Cass, supra note 37, at 60 (“Without an injunction delaying the administrative fiat, the practical result is to
eliminate the prospect of meaningful review. Any investments in compliance (through reconfiguring businesses,
purchasing new equipment, and changing aspects of everyday practice that limit exposure to penalties), even if not
eliminating courts' willingness to consider challenges, plainly deprive judicial review of real significance.”).
270 E.g., Bagley, supra note 42, at 7.
271 E.g., Washington v. Trump, 847 F.3d 1151, 1159-60 (9th Cir 2017).
272 E.g., Br. for Respondent at 77, Trump v. Hawaii, 138 S. Ct. 2392 (2018); Texas v. United States, 787 F.3d 733, 768
(5th Cir. 2015).
273 Frost, supra note 5, at 1094-97.
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policies that admit foreign nationals, because people can move freely within the United States
once admitted, some assert that piecemeal injunctions of such immigration policies may afford no
meaningful relief to states or other parties who seek to prevent illegal entry.274
As in the APA context, additional textual arguments may apply specifically to the availability of
nationwide injunctions in immigration cases. Some courts granting or affirming nationwide
injunctions in this area have pointed to a provision of Article I of the Constitution that empowers
Congress to “establish an uniform Rule of Naturalization.”275 For example, in affirming a
nationwide injunction against the Deferred Action for Parents of Americans and Lawful
Permanent Residents program, one appellate court cited the foregoing constitutional text and
concluded that “[a] patchwork system would ‘detract[ ] from the “integrated scheme of
regulation” created by Congress.’”276 Some commentators disagree with that reasoning. For
instance, Professor Bray contends that the foregoing constitutional text empowers Congress to
legislate in this area but does not address the courts’ authority to impose remedies in immigration
cases.277 Even Professor Frost, who generally defends the legality of nationwide injunctions, finds
limited support for them in that text:
[T]he constitutional mandate that Congress regulate naturalization does not suggest that
federal judges have no room to disagree with each other on the meaning of immigration
law, or that the first court that addresses the meaning of a federal immigration statute has
the power to control other courts' resolutions of that question. 278
Professor Frost also questions whether, as a practical matter, nationwide injunctions effectively
ensure uniformity in immigration law.279
Nationwide Injunctions in the Federal Courts
Because no statute, court rule, or Supreme Court caselaw specifically governs the availability of
nationwide injunctions, courts considering requests for such relief often look to more general or
analogous authorities for guidance. Courts considering a request for a nationwide injunction (or
reviewing a nationwide injunction case on appeal) generally consider three questions: (1) whether
the plaintiffs have standing to sue, (2) whether any injunctive relief is warranted, and (3) if so,
what is the proper scope of the injunction.280
The first issue, standing, presents a threshold question of whether the suit can go forward. As
noted above, a plaintiff suing in federal court must have standing—essentially a personal and
concrete interest in the litigation—or the court lacks the constitutional authority to hear the
274 Cass, supra note 37, at 39-40; see also Texas v. United States, 787 F.3d at 769 (“[T]here is a substantial likelihood
that a partial injunction would be ineffective because DAPA beneficiaries would be free to move between states.”).
275 U.S. CONST. art. I, § 8, cl. 4; see also Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015), Washington v.
Trump, 847 F.3d at 1166-67.
276 Texas v. United States, 787 F.3d at 769 (quoting Arizona v. United States, 132 S. Ct. 2492, 2502 (2012)) (additional
citation omitted).
277 Samuel Bray, National Injunction Case Added to the Court’s Docket, VOLOKH CONSPIRACY (Oct. 19, 2020)
https://reason.com/volokh/2020/10/19/national-injunction-case-added-to-the-courts-docket/ (last visited Sept. 4, 2021).
278 Frost, supra note 5, at 1103.
279 Id.
280 See generally, e.g., Texas v. United States, 515 F. Supp. 3d 627, 631-633(S.D. Tex., 2021) (considering standing,
preliminary injunction factors, and scope of injunction in order); Hawaii v. Trump, 878 F. 3d 662 (9th Cir. 2017)
(same).
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case.281 However, the courts’ standing analysis generally differs significantly from the academic
discussion of standing outlined in the previous section. While academic discussion of standing in
nationwide injunction cases often focuses on the standing of third party beneficiaries of an
injunction who are not before the court,282 judicial standing analysis generally focuses on the
standing of the specific individuals or groups bringing suit.283 A person does not have standing to
raise a “generalized grievance” that is “common to all members of the public,” but almost any
“concrete and particularized” injury is sufficient to confer standing.284 Suits challenging
government policies often feature multiple plaintiffs who claim different interests in the litigation,
and courts may allow a case to proceed if just one plaintiff demonstrates standing, even if the
standing of other plaintiffs is less clear.285 If one or more plaintiffs seeking a nationwide
injunction have standing, courts generally then consider whether the plaintiffs can satisfy the test
for injunctive relief.286 If the plaintiffs fail to show either standing or a general entitlement to
relief, the court need not consider the propriety of granting a nationwide injunction.287
If the plaintiffs have standing and demonstrate their entitlement to injunctive relief, the court
must then consider the proper scope of any injunction, including whether a nationwide injunction
is appropriate. In analyzing that question, courts may weigh many of the legal and policy
considerations outlined in the previous section.288 However, the courts diverge in which factors
they find most compelling. Sometimes the same factor may arguably weigh either for or against
granting a nationwide injunction. For instance, sometimes courts will limit grants of injunctive
relief to avoid reaching non-parties, but other courts have expressly granted nationwide
injunctions partly for the benefit of non-parties who are not able to bring suit.289 Similarly, some
courts have held that a nationwide injunction is appropriate when a challenged policy is illegal in
all applications,290 while others have held challenged policies to be unlawful but have nonetheless
limited relief to the parties before the court, or to the parties and others who are similarly
situated.291 Nationwide injunction cases often proceed on an expedited basis with a limited
281 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
282 See supra “Constitutional Considerations.”
283 E.g., Hawaii v. Trump, 878 F. 3d at 680-82.
284 Lujan, 504 U.S. at 560, 575 (quoting United States v. Richardson, 418 U.S. 166, 171, 176-77 (1974)).
285 See Aaron-Andrew Bruhl, One Good Plaintiff Is Not Enough, 67 DUKE L. J. 481, 487-94 (2017).
286 See, e.g., Texas v. United States, 515 F. Supp. 3d 627, 634 (S.D. Tex., 2021); Hawaii v. Trump, 878 F. 3d at 683-
701.
287 Just as a district court may deny a request for a nationwide injunction if it finds that the plaintiff lacks standing or
has not shown any entitlement to injunctive relief, an appellate court may also reverse a grant of injunctive relief on
either of those grounds. For instance, in Trump v. Hawaii, the Supreme Court considered an appeal from a district court
order granting a nationwide injunction and held that no injunctive relief was warranted because the plaintiffs had not
shown their claims were likely to succeed on the merits. 138 S. Ct. 2392, 2423 (2018); see also Little Sisters of the
Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2386 (2020) (in appeal from an order granting a
nationwide injunction, holding that challenged policy was lawful).
288 See supra “The Legal Debate over Nationwide Injunctions.”
289 Compare VSHL v. FEC, 263 F.3d 379, 393 (4th Cir. 2001), overruled on other grounds by Real Truth About
Abortion, Inc. v. FEC, 681 F.3d 544, 550 n.2 (4th Cir. 2012) with Chicago v. Barr, 961 F.3d 882, 917 (7th Cir. 2020).
290 E.g., Nat’l Mining Ass'n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998); State v. Trump, 265
F. Supp. 3d 1140, 1160 (D. Haw. 2017); Wyoming v. U.S. Dep’t of Agric., No. 07-CV-017-B, 2009 WL 10670655, at
*2 (D. Wyo. June 15, 2009); S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959, 968-69 (D.S.C. 2018).
291 E.g., Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (staying lower courts’ orders
to the extent they barred enforcement against “foreign nationals who lack any bona fide relationship with a person or
entity in the United States,” but “leav[ing] the injunctions entered by the lower courts in place with respect to
respondents and those similarly situated”) (emphasis added); Hawaii v. Trump, 878 F. 3d at 702 (affirming grant of
nationwide injunction but narrowing its scope to protect only “foreign nationals who have a credible claim of a bona
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record. In those circumstances, some courts have favored issuing a nationwide injunction to
preserve the status quo during litigation, while others have opted for more limited relief absent a
decisive showing that a broad injunction is required.292 Judicial decisions granting nationwide
injunctions may focus on the need for uniformity in the law,293 or the role of the judiciary as a
check on the political branches.294 Decisions narrowing or denying nationwide injunctions may
instead emphasize interests such as promoting record development and percolation295 or
preventing judicial overreach.296
One key point of interest in nationwide injunction caselaw is the principle of “complete relief.” In
Califano v. Yamasaki, the Supreme Court cited the rule that “injunctive relief should be no more
burdensome to the defendant than necessary to provide complete relief to the plaintiffs,” and held
that a court should “take care to ensure that nationwide relief is indeed appropriate in the case
before it.”297 Califano involved a challenge to the certification of a nationwide class action and
thus did not directly concern nationwide injunctions, but the decision is frequently cited in cases
and commentary on nationwide injunctions. The language in Califano arguably compels courts to
tailor relief as narrowly as possible, and courts sometimes cite the case when limiting the scope of
injunctive relief.298 By contrast, other courts cite Califano, or the general principle of complete
relief, in support of decisions granting nationwide injunctions.299
Overall, because the factors courts consider in ruling on requests for nationwide injunctions are
numerous and open-ended, and courts may apply them differently in different factual
circumstances, it can be difficult to know in advance how a court will rule in a given case or to
draw broad conclusions across cases. Courts considering requests for nationwide injunctions look
fide relationship with a person or entity in the United States”); VSHL, 263 F.3d at 393 (narrowing nationwide
injunction to apply only to the plaintiff).
292 Compare Texas v. United States, 515 F. Supp. 3d 627, 632 (S.D. Tex., 2021) (“[T]he scope of this injunction is
something [the court] is willing to revisit after the parties fully brief and argue the issue for purposes of the upcoming
motion for preliminary injunction. Though the scope of this TRO is broad, it is not necessarily permanent.”) with E.
Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029-30 (9th Cir. 2019) (“We agree with our dissenting colleague that
‘time does not permit a full exploration of the merits of the “nationwide” issue.’ But whereas he believes that such a
factor supports the granting of a nationwide injunction until a merits panel can address the case, we reach precisely the
opposite conclusion.”).
293 E.g., Washington v. Trump, No. C17-0141JLR, 2017 WL 462040 at *2 (W.D. Wash. Feb. 3, 2017); Texas v. United
States, 515 F. Supp. 3d at 634; but cf. E. Bay Sanctuary Covenant, 934 F.3d at 1030 n.8 (in order staying in part
nationwide injunction, stating that
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