Against National Injunctions

The Trump executive order temporarily barring travelers from 7 countries has once again raised the issue of a single federal district court issuing a nationwide injunction.  This type of injunction was also used against the Obama Administration’s deferred action program (DAPA).  In my view, these type of injunctions are extremely problematic.

Samuel Bray, an expert on equity, has written about the serious problems with these injunctions.  In this short piece, he notes three basic problems.  The first is the problem of forum shopping.  The plaintiff simply chooses an hospitable circuit in which to file the case.  The Ninth Circuit for the Trump executive order, the Fifth Circuit for the Obama action.

This forum shopping is exacerbated by the “assymetry in the effect” of the judicial decision.  As Brey writes, “If a plaintiff seeks a national injunction and loses . . . that decision has no effect on anyone else. Other plaintiffs can keep bringing their own challenges.  But as soon as one federal district judge finds an executive order invalid and enjoins its enforcement across the nation, the injunction binds the defendant everywhere, at least until it is overturned on appeal.  Shop ’til the order drops.

A second problem is that national injunctions “interfere with good decision-making by the federal courts.”  Lower federal court decisions are supposed to percolate, so that the Supreme Court can review a decision made by several different lower courts.  But a national injunction prevents that from happening.

A third problem is that the national injunction “is inconsistent with the authority of the federal courts.”  Courts should decide “particular cases for particular parties,” not “abstract questions for all possible parties.”  Interestingly, it turns out that the national injunction is a modern innovation that “has no basis in the tradition of equity.”  There were no national injunctions for the first 150 years of the federal courts.

Bray does acknowledge that there are some countervailing considerations, but to me it is obvious that the costs of this system greatly outweigh the benefits.

Sadly, national injunctions are another part of a modern system that has allowed the improper exercise of judicial power.  There is nothing wrong with a court protecting people from illegal government action.  But it ought to be done in an orderly and balanced way.  Allowing a single district or circuit court to exercise power over the whole country does not do that but instead distorts the judicial system.