An Opening Salvo on Nationwide Injunctions

Adam Shelton · November 6, 2019

Nationwide Injunctions and Judicial Engagement

Nationwide injunctions are a crucial tool for courts to ensure that the government stays within the limits the Constitution sets. Yet, the politics of the day has made the subject radioactive and led to much debate about the future of these injunctions. Both Republicans and Democrats have cheered nationwide injunctions when issued against the policies of an administration of the opposite party. And both have rued such injunctions when their man has occupied the White House.

This will be the first in a series of posts addressing nationwide injunctions, their use and propriety, from a judicial engagement perspective. At the Center for Judicial Engagement we believe the essence of judicial engagement is courts keeping the government within the limits of the Constitution. Nationwide injunctions assist the courts in doing just that.

Through this series we will explore the debate surrounding nationwide injunctions and offer thoughts that have been missing from the discussion. But before we do that, we must consider what nationwide injunctions actually are.

What are Nationwide Injunctions?

The problem with defining nationwide injunctions is that the discussions about them exist on two separate planes. A legal academia plane and a political plane. Both define nationwide injunctions a bit differently. Because of politics, many see nationwide injunctions as a court order which prevents the federal government from instituting a policy anywhere in the nation. While this definition is certainly accurate, it does not tell the whole story.

This definition, which works on the political level, misses what a nationwide injunction is in the purely legal sense. In the purely legal sense, it is simply a court order which protects non-parties in a non-class action lawsuit. In other words, the geographic scope is secondary as far as the current controversy is concerned. It is all about who the injunction protects and provides relief to—not where it expands.

It is well accepted, and uncontroversial, that a district or appellate court can issue an injunction on a nationwide scale as long as the plaintiff and the harm exist nationwide. For example, if a government regulation specifically prohibited Apple from selling their new iPhone, no one seriously argues that in issuing an injunction that prevents the enforcement of that regulation the court must confine its ruling to only its district or circuit. No one argues that Apple must file a lawsuit in every circuit in the country to be allowed to sell their iPhone. People are fine when a district court issues an injunction that has a nationwide effect in situations like this.

Thus, it is not the nationwide aspect that is most controversial, but the universal aspect. That is, the fact that the injunction in question prevents the government from enforcing a law against anyone, not just the named plaintiffs. It is all about the parties. This is why many in legal academia have vociferously argued that nationwide injunctions should be called something else (universal injunctions, cosmic injunctions, defendant-oriented injunctions). Here, I will use the term “universal injunction.” And by that I mean an injunction that prevents the government from enforcing a law against anyone, anywhere.

Sometimes a universal injunction is a nationwide injunction, and when we are talking about the federal government that is generally true, because the federal government is, by definition, nationwide. But you can have universal injunctions against states and cities too, which, of course are not nationwide. In either scenario a court is telling the government not to enforce a law against the plaintiffs or others. In any case, enough ink has been spilled over the nomenclature debate and the more imperative question is whether universal injunctions are proper and necessary.

To better understand the importance and necessity of universal injunctions, we need to look no further than a case from 1963: Wirtz v. Baldor Electric Co. There, the U.S. Court of Appeals for the District of Columbia was confronted with a Department of Labor regulation which set a minimum wage for the electric motors and generators industry. Some in the industry challenged the regulation as a violation of the Administrative Procedures Act. The court agreed and turned to the remedy. The court decided that a nationwide injunction was appropriate because without such an injunction, those who successfully challenged the law would have a significant competitive advantage against those who did not. Providing relief just to the plaintiffs would allow them to outbid all their competitors for contracts because they would not have to pay their employees the minimum wage set that other companies would.

If universal injunctions were banned, like many have proposed, the plaintiffs in a case like Wirtz would receive a business advantage because they were resourceful enough to challenge the law in court. Fair competition should not depend on access to the courts. And the government should not be able to require some to abide by a rule while others are free to ignore it solely based on who sued.

With this in mind, it is easy to see how a world without universal injunctions, as has been advocated for by both the Obama and Trump Administrations, could lead to more access to justice issues.

Access to Justice

If tomorrow the Supreme Court rules that courts do not have the power to issue injunctions which provide relief beyond the parties, or if Congress passes one of the multiple proposed bills which would prevent the issuance of such a remedy, it would create a world where lawyers are even more necessary. People would be unable to gain protection from an unconstitutional law without hiring a lawyer or joining a class action lawsuit.

Remember, a universal injunction is simply an injunction which protects non-parties in a non-class action lawsuit. This means it can be statewide and citywide as well as nationwide. If a court could not issue an injunction beyond the parties, every person would have to lawyer-up to gain protection from an unconstitutional law.

Take for example an Indiana law which prohibits a liquor store from selling cold water and soda. If some stores (but not all) decide that the law is unconstitutional and sue, and a court awards an injunction, then they would have the right to sell chilled water and soda. But the stores who did not sue, would not have that right. This means that those stores with money, like those part of a chain or association, would have an advantage when it comes to the ability to hire a lawyer. Those that just barely scrape by, like independent stores, might not even have that chance. Without a beyond-the-parties injunction, those unable to sue would be prohibited from selling cold water and soda. The only difference being one had access to justice and the courts, and others did not. Protection from unconstitutional laws should not rest on such a foundation.

Going Forward

There is much more to say about universal injunctions. Both in a positive and negative light. However, suffice it to say, the issue is not as uncomplicated as some in the legal and political communities have made it seem. There are numerous factors that must be considered and many of these will be explored in this series. These include how universal injunctions prevent against negative incentives for the government and what a finding that universal injunctions are impermissible would mean for statewide injunctions; especially in relation to the equal protection clause of the Fourteenth Amendment. Stay tuned for explorations of these topics in the weeks to come.

Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.