Entering the Political Thicket with Nationwide Injunctions

Nadin R. Linthorst*

Abstract

Nationwide injunctions are a recent phenomenon that federal district court judges have increasingly issued over the past two decades. Normally, an injunction is issued only against named parties. However, nationwide injunctions apply to everyone, including nonparties, and are not limited in geographic scope. Litigants fighting against highly contested presidential policies—for example, President Donald Trump’s travel ban—have taken advantage of this practice by filing their cases in jurisdictions where they are more likely to appear before an empathetic judge. Not only does this practice risk creating the public perception of a biased judiciary, but once a nationwide injunction is issued, it can seriously interrupt the enaction of federal policy. As a result, nationwide injunctions often disrupt the constitutional separation of powers.

The practice of issuing nationwide injunctions likely violates both the Constitution and the political-question doctrine. Certainly, the Founders did not intend the judiciary to wield the amount of power they have today, but instead envisioned a balance of powers. In the near future, several stakeholders could determine the fate of nationwide injunctions—Congress could pass a statute explicitly authorizing or denying district courts the authority to enjoin policies on a nationwide basis; district courts could issue traditional injunctions and allow cases to proceed as class actions if the issues affect several individuals; or, ultimately, the Supreme Court could address whether the practice of issuing nationwide injunctions is constitutional.

*Nadin R. Linthorst is a New York licensed attorney who has practiced civil litigation in state and federal courts. She has also clerked for the Honorable Michael M. Mihm of the United States District Court for the Central District of Illinois. The author would like to sincerely thank the editors and staff at the Penn State Law Review for their hard work with strengthening this Article.

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