North Carolina Law Review

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Why There Should Be A Presumption Against Nationwide Preliminary Injunctions

December 29, 2017

96 N.C. L. Rev. 200 (2017)

 

Nationwide judicial power is a strong tool with far-reaching consequences. It is clear that the United States Supreme Court, as the highest court in the land, can exercise its power nationwide. But what about when a single federal district court judge makes a ruling that applies to the entire country? Instinctively, and described in these terms, this feels suspicious. Nationwide power is a strong authority for one judge to wield, as opposed to a panel of three judges or nine justices. This power is magnified when a nationwide scope is applied to preliminary injunctions. A preliminary injunction is an “extraordinary” remedy, and the type of relief it provides is “drastic medicine.” The practical effect of a nationwide preliminary injunction is that a single, unelected federal district court judge makes a ruling that applies to the entire nation prior to a full trial on the merits. Using a nationwide scope with an already remarkable form of relief creates a one-two punch of extraordinary and far-reaching judicial power.

 

Despite the extreme nature of this remedy, there have been five different instances of various federal district court judges in Texas granting a nationwide preliminary injunction in the past two years. This practice, however, is not unique to Texas. After the election of President Trump and his issuance of several controversial executive orders, district court judges granted nationwide preliminary injunctions in Washington, Maryland, Hawaii, California, and Illinois. Each of these preliminary injunctions has enjoined the federal government from implementing a policy or regulation across the entire country. This type of remedy is meant to be temporary, but in the interim, it can have a substantial impact on people’s day-to-day lives. For example, people in New York and Illinois had their employment authorization revoked as a result of the Texas v. United States (Texas I) preliminary injunction granted by a judge in the Southern District of Texas. Moreover, the rationale for these nationwide preliminary injunctions is often conclusory and overbroad, and they rest on justifications used for permanent injunctions, a similar yet distinct remedy. The use of nationwide preliminary injunctions has not gone unnoticed by scholars, and it will likely receive even more attention given the rapid pace at which nationwide preliminary injunctions are being granted, the recent litigation surrounding President Trump’s immigration executive orders, and the Supreme Court’s grant of certiorari, and subsequent dismissal as moot, in Trump v. International Refugee Assistance Project, a case involving a nationwide preliminary injunction. There are a number of issues that arise when considering the implementation of nationwide preliminary injunctions, including collateral estoppel, forum shopping, venue, and the doctrine of allowing multiple lower courts to develop the law more robustly within their respective circuits.

 

This Comment explores the normative value of nationwide preliminary injunctions granted by a federal district judge against the federal government. Given the combination of the preliminary nature and the broad scope of a nationwide remedy, there should be a presumption against nationwide preliminary injunctions. When a judge truly believes a nationwide scope is necessary, she should implement procedural safeguards to protect against the concerns that result from a determination prior to a hearing on the merits that affects parties not before the court. 

 

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