Experts Debate Nationwide Injunctions at February 12 ACUS Co-Sponsored Forum

This article was authored by Jennifer Weinberg, ACUS Legal Intern.

Nationwide injunctions prohibit the federal government from enforcing statutes, executive orders, and regulations against anyone, not just the particular plaintiffs who have challenged them in federal court. Nationwide injunctive relief has figured prominently in several recent, prominent cases, including litigation over the Department of Homeland Security’s “public charge” rule, appropriating funds for the border wall, Food and Drug Administration regulation of electronic cigarettes, the inclusion of a citizenship question in the 2020 census, and the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

The increasing use of nationwide injunctions in high-profile cases has raised questions as to when, if ever, federal courts should use them to remedy unlawful governmental action.

On February 12, ACUS co-sponsored a forum on Nationwide Injunctions and Federal Regulatory Programs with The George Washington University Law School and the American Bar Association’s Section of Administrative Law and Regulatory Practice.

In opening remarks, Deputy Attorney General Jeffrey A. Rosen described the Department of Justice’s opposition, under both the Trump and Obama administrations, to the increased frequency of nationwide injunctions. “While the Attorney General has taken a principled stand against all such nationwide injunctions,” Rosen said, “there is a practical difference between a trickle and a tsunami.” He spoke of having “crossed a new threshold, where nationwide injunctions have become almost a routine step in a regulation or policy’s lifecycle.” Rosen also raised concerns about their practical effects, arguing their use incentivizes forum shopping, “allow[s] a single district judge to wield a nationwide veto against federal policies,” and “create[s] discord among courts.”

Following Deputy Attorney General Rosen’s remarks, Alan B. Morrison and Matthew L. Wiener moderated a panel that brought together leading commentators, judges, and public officials. Morrison is the Lerner Family Associate Dean for Public Interest and Public Service Law at The George Washington University Law School. Wiener serves as ACUS’s Acting Chair, Vice Chair, and Executive Director.

Panelists included Loren AliKhan, Solicitor General of the District of Columbia; Ronald A. Cass, President of Cass & Associates, Dean Emeritus of the Boston University School of Law, and a member of the ACUS Council; Emily Hammond, Research Professor and Senior Associate Dean at The George Washington University Law School; David K. Hausman, who previously worked with the ACLU Immigrants’ Right Project; Ronald M. Levin, Professor of Law at Washington University in St. Louis; Assistant Attorney General Beth A. Williams; and Judge Stephen F. Williams of the District of Columbia Circuit.

Assistant Attorney General Williams’s prepared remarks are available from the Department of Justice. ACUS will also make a full transcript of the forum available on its website. Update: The transcript of the forum is available here.

The panelists addressed a variety of topics, from how to define a nationwide injunction to their constitutional status, remedial purpose, and practical implications. A range of possible solutions arose from this conversation that might mitigate some of the perceived problems. Proposals included limiting injunctions to the parties before the court; limiting the scope of a nationwide injunction to the circuit in which it is issued; placing a higher burden on a plaintiff to demonstrate a strong need for nationwide injunctive relief; and delegating the question to issue a nationwide injunction to multi-judge panels. Panelists emphasized the need for additional guidance on the scope of injunctive relief and encouraged judges who issue nationwide injunctions to provide clear legal reasoning for their decision. Although the panelists expressed a diversity of opinions, all agreed on the importance of the topic.

In his remarks, Deputy Attorney General Rosen described the topic of nationwide injunctions as “important and timely.” Indeed, the Supreme Court recently granted certiorari on a related question. The Senate Judiciary Committee will also hold a hearing on the topic tomorrow, February 25.