Nationwide injunction

[3]: 427  The Supreme Court in Frothingham v. Mellon (1923) said this type of suit was justified by the theory that citizens of a county or municipality have a relationship comparable to that of shareholders to a corporation.

[3]: 437 The practice may have begun in 1963, when a panel for the Court of Appeals for the District of Columbia Circuit conditionally enjoined the Secretary of Transportation from applying his challenged wage regulation to any parties, not merely the plaintiffs.

[18] In 1987, the Ninth Circuit, upheld an injunction against the Secretary of Labor to enforce the Migrant and Seasonal Agricultural Worker Protection Act within the entire forestry industry, reasoning that "the district court has the power to order nationwide relief where it is required.

"[21] In 1998, the District of Columbia Circuit upheld a nationwide injunction against the Army Corps of Engineers, preventing it from enforcing against anyone a rule it had promulgated under the Clean Water Act.

[8][18] The Fifth Circuit upheld a nationwide injunction initially issued by Judge Andrew Hanen of the Southern District of Texas against the federal government's implementation of DAPA in United States v.

[8] Within three weeks of President Trump's inauguration, Judge James L. Robart of the Western District of Washington issued a nationwide injunction to prevent the administration from implementing its executive order restricting entry into the United States.

[32] The following month, Judge Derrick K. Watson of the District of Hawaii issued a nationwide injunction to prevent the administration from implementing an executive order amending its entry restrictions.

[33] In April 2017, Judge William Orrick of the Northern District of California issued a nationwide injunction to prevent the administration from restricting funding to "sanctuary cities.

[36] In early 2019, Judge Richard Seeborg of the Northern District of California issued a nationwide injunction preventing the Department of Commerce from asking census takers if they are United States citizens.

[37] In December 2019, Judge David Briones of the Western District of Texas issued a nationwide injunction to prevent the administration from using certain funds to erect a border wall.

"[4]: 2429  In a decision on a stay application in Department of Homeland Security v. New York (2020), Justice Neil Gorsuch wrote a concurrence criticizing the lawfulness and practical consequences of injunctions that "direct how the defendant must act toward persons who are not parties to the case.

[44] A Fifth Circuit panel has held that nationwide injunctions are appropriate because district courts exercise "the judicial power" of the entire United States, not just a smaller territory, and because in certain contexts—like immigration—uniformity is required.

[13]: 924  Similarly, attorneys David Hausman & Spencer E. Amdur have defended nationwide injunctions because they can prevent widespread harm, such as deportations of hundreds of thousands of people.

On March 10, 2018, Attorney General Jeff Sessions authored an op-ed in National Review calling nationwide injunctions "a threat to our constitutional order.

"[51] Consistent with "the Department's considered and longstanding" opposition to nationwide injunctions, Attorney General Sessions instructed litigators to argue before courts that nationwide injunctions(1) exceed the constitutional limitations on judicial power; (2) deviate from longstanding historical exercise of equitable power; (3) impede reasoned discussion of legal issues among the lower courts; (4) undermine legal rules meant to ensure orderly resolution of disputed issues; (5) interfere with judgments proper to the other branches of government; and (6) undermine public confidence in the judiciary.

"[18] She remarked that "the rash of nationwide injunctions strikes at the heart of our democratic system" because a nationwide injunction "seriously impedes decision-making in the federal courts by interfering with percolation of a contested legal issue," "invites unvarnished 'judge-shopping,' undermining faith in our judiciary," and "allows unelected district court judges to issue wholesale vetoes on the domestic policy and national security decisions of our elected officials.

"[53] At the hearing, Samuel Bray,[54] Hans von Spakovsky,[55] Amanda Frost[56] and Michael Morley[57] discussed the legal issues surrounding the practice.

"[58] The Act did not make it to a vote, but it would have amended the United States Code to provide that:No court of the United States (and no district court of the Virgin Islands, Guam, or the Northern Mariana Islands) shall issue an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.

[62] After District Judge Andrew Hanen enjoined the Obama Administration from enforcing DAPA, a number of nonparty states submitted an amicus brief asserting that they did not want to be "protected" with the relief that was extended to them.

"[67] The article explained:An unsettling pattern has emerged in Texas of federal district judges issuing nationwide injunctions on policies put forward by the Obama administration.

"[68] It argued that the nationwide injunction has "become increasingly common over the past few decades as political activists try to enlist judges to make the kind of widespread policy changes that the legislative or executive branches are designed to handle.

[13]: 922  In his Trump v. Hawaii concurrence, Justice Thomas noted that "[i]njunctions that prohibit the Executive Branch from applying a law or policy against anyone" have been called both "nationwide" and "universal" injunctions,[4]: 2424  but chose to use the latter term "because it is more precise.