The very ability of courts to issue nationwide injunctions is due to the nature of equitable remedies themselves. Therefore, to make an argument about how the judiciary\u2019s equitable powers ought to change, it is important to understand something of their origin and how they have evolved over time. The fact that the discretion accorded to judges in equity is a fundamental feature has strong implications for what type of solutions are available to modern problems in equity<\/a>. <\/p>\n Equity has long afforded substantial discretion to judges. The first reason for this is historical. The Court of Chancery in England started out as a court of conscience, to which parties could turn to when the common law courts failed to give them justice: \u201c[t]he Office of the Chancellor is . . . to soften and mollify the Extremity of the Law.\u201d[1]<\/a> The king was seen as the fount of all justice, and the office of chancellor evolved to assist the king in administering the \u201cking\u2019s justice.\u201d[2]<\/a> The fact that early chancellors were religious figures cemented the role of conscience over form, and caused ecclesiastical law to have a strong influence on equity.[3]<\/a> The freezing of additional common law<\/a> writs with the Provisions of Oxford in 1258 exacerbated law\u2019s more formalistic tendencies, which made common law courts useless in solving certain new legal problems, particularly cases surrounding use of real property.[4]<\/a> Accordingly, the chancellor was accorded a great deal of discretion in addressing these novel problems, and in ordering the appropriate remedy. <\/p>\n Indeed, Equity is a Roguish thing, for Law we have a measure . . . . Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower so is equity. \u201cTis all one, as if they should make his foot the standard for the measure we call a Chancellor\u2019s foot; what an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot.\u201d[5]<\/a><\/p>\n<\/blockquote>\n The view that equity existed to make up for the common law courts\u2019 rigidity and formalism existed not only in the 17th century, but was echoed by Blackstone over one hundred years later. Paraphrasing Aristotle, Blackstone wrote:<\/p>\n For since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legislator himself would have excepted.[6]<\/a><\/p>\n<\/blockquote>\n Even as the chancellor ceased to be seen as a religious figure and took on a more secular role, equity\u2019s role in correcting injustices that resulted from the inadequacies of common law courts continued.[7]<\/a> In sum, regardless of the reason\u00bephilosophy, history, or simple necessity\u00bediscretion became an intrinsic feature of equity.<\/p>\n Over Part of what makes the debate over nationwide injunctions<\/a> so complex is that there are powerful values on both sides of the debate, any of which could be outcome determinative in a given case. This section examines both the benefits and harms of nationwide injunctions.<\/p>\n Perhaps Indeed, By Lastly, Accusations Possibly An The No One Nationwide One of the primary articulated advantages Part The Nationwide Intercircuit One While Professor Even if Professor Similar A A While Second, Other The Ultimately, While The Because The One While The type of injunction sought is In at least one case that discussed The boundary of potentially More fundamentally, however, is the In In This The This category includes:<\/p>\n This Because Even While With The The On In reviewing the propriety of this injunction, the first factor of the identity of the parties before the court, favors issuance of a nationwide injunction. While the defendant in this case was the federal government, the plaintiffs were also governments. More importantly, because the size of the \u201cclass\u201d of states is fifty, seventeen out of the fifty in that class were represented, and apparently all of the states who wished to sue had joined the lawsuit, most of the sub-factors in this category were not a problem. The government had no interest in continuing to litigate the issue in other circuits because there would be no more litigation on this subject. The non-party beneficiary class was very low. Therefore, this factor could only have more strongly favored a nationwide injunction if every single state joined the lawsuit, which effectively means that one could hardly imagine a better set of facts for purposes of this category. <\/p>\n The second category, the substantive nature of the claim, likewise supports an injunction. This was a facial challenge,[163]<\/a> the injunction was prohibitory (against the memo having legal effect), and most importantly the plaintiffs could not be made whole without a nationwide injunction because, much like with constitutionality of school prayer in Santa Fe<\/em>,[164]<\/a> legal status is binary\u00beeither immigrants have the right to be in the United States or they do not. Perhaps a circuit border rule could be implemented based on where an immigrant was apprehended, but this would likely be a logistical nightmare. Moreover, this would make it harder for states who won to keep undocumented immigrants out of their state since every border with a state that did not join the lawsuit\u00benot just the Mexico and Canadian borders\u00bewould become a possible entry point, which the Border Patrol was almost certainly unable to handle. Therefore this injunction also strongly favored a nationwide injunction.<\/p>\n Lastly In [1]<\/a> Earl of Oxford\u2019s Case, [2]<\/a> See <\/em>Howard L. Oleck, HistoricalA. In England<\/h3>\n
\nthe chancellor\u2019s discretion was so absolute that it prompted harsh criticism,
\nperhaps none more well-known than John Selden\u2019s witty remark that:<\/p>\n\n
\n
B. The Founding and the Role of the Judiciary<\/h3>\n
\nthe years, questions about the role of the judiciary in controlling legislation
\nand enforcing the constitutional order have abounded.[8]<\/a> The
\naccusation that Justice Marshall invented judicial review has been widely
\ncirculated.[9]<\/a>
\nNotwithstanding the widespread traction this idea has gained, it is false.
\nProfessor Randy Barnett convincingly made this argument from an originalist
\nperspective, showing that both proponents and opponents of the Constitution
\nunderstood it to give the courts this power.[10]<\/a>
\nMost important for our purposes, this power included the power of judicial
\nnullification of legislation.[11]<\/a>
\nWhile I mention this part of the history only in passing, it is important to
\nthe question of nationwide injunctions because in constitutional cases, it
\nshows that the courts are to play a role in being intermediaries between the
\npeople and the other two branches of the government, not merely the servants of
\nCongress. <\/p>\nII. Comparing the Benefits and Harms of Nationwide Injunctions <\/h2>\n
A. Benefits<\/h3>\n
\n
\nthe strongest reason for the proliferation of nationwide injunctions is a
\nsimple, moral intuition that it is wrong to allow illegal, especially
\nunconstitutional, conduct from continuing unchecked. While nationwide
\ninjunctions are a relatively new phenomenon,[12]<\/a>
\nthe beginning of their logic stems all the way to Marbury[13]<\/strong><\/a>
\nv. Madison<\/em>. At least since Marbury<\/em>, it has been firmly established
\nthat the courts have the power to strike down laws. It is only a small step
\nfrom the concept of judicial review to the nationwide injunction, because if it
\nis the job of the courts to declare what the law is, any view which contradicts
\na judicial opinion is, in a sense, not the law. This is particularly true in
\nconstitutional matters because the constitution is the supreme law of the land,
\nrendering all statutes that conflict with it moot.[14]<\/a>
\nTo allow an agency to continue enforcing a \u201cmoot\u201d law violates this basic principal.\n<\/p>\n
\nin the first judicial decision to directly address concerns about the propriety
\nof nationwide injunctions, Judge Leinenweber identified precisely this concern:
\n\u201cThe rule of law is undermined where a court holds that the Attorney General is
\nlikely engaging in legally unauthorized conduct, but nevertheless allows that
\nconduct in other jurisdictions across the country.\u201d[15]<\/a>
\nThis persuasive argument in favor of nationwide injunctions also justifies
\ntheir increasingly widespread use. Since the federal government generally
\nenacts policies and statutes uniformly around the country, if one of those
\npolicies or statues is unconstitutional, the harm is likewise nationwide. If
\nthe rule of law is harmed by allowing any similarly situated citizen to be
\nharmed, nationwide injunctions will become the norm.[16]<\/a><\/p>\n\n
\nprotecting affected individuals not party to the litigation, nationwide
\ninjunctions also promote equality. In fact, Wirtz
\nv. Baldor Electric Company<\/em>, the case that first issued a nationwide injunction,
\nadvanced the idea that all similarly situated plaintiffs deserve the same
\noutcome from the law counseled toward issuing a broad injunction.[17]<\/a>
\n\u201c[Where] a lower court … has spoken, that court would ordinarily give the
\nsame relief to any individual who comes to it with an essentially similar cause
\nof action.\u201d[18]<\/a>
\nThese concerns about equality are exacerbated when similarly situated
\nplaintiffs have different access to legal resources.[19]<\/a> <\/p>\n\n
\nnationwide injunctions help preserve judicial resources. While a slower, more
\nincremental approach may allow for \u201cpercolation\u201d of the best ideas on the
\nsubject,[20]<\/a>
\nnationwide injunctions decide the issue immediately for the whole nation,
\npreventing duplicative litigation and reducing the courts\u2019 dockets.[21]<\/a>
\nGiven widespread concern about the sometimes exorbitant costs of litigation and
\ncosts to society of paying for a judicial system, it may be most beneficial to
\nhave some legal issues decided once and for all. <\/p>\nB. Harms<\/h3>\n
\n
\nof forum shopping for judges who are ideologically inclined to the plaintiff or
\nplaintiffs have, with the increased use of broad equitable remedies, become
\ncommonplace and well publicized. They also cross political boundaries. Most
\nrecently, many conservatives cried foul when judges issued nationwide
\ninjunctions against the Trump administration\u2019s so-called \u201cMuslim ban.\u201d[22]<\/a> It
\nprobably did not help that two of these cases were issued by judges in the 9th<\/sup>
\nCircuit, which has a reputation for being one of the more liberal circuits in
\nthe country.[23]<\/a>
\nSimilarly, multiple pieces of notable environmental litigation against the Bush
\nAdministration was filed in the Ninth Circuit.[24]<\/a><\/p>\n
\nthe most obvious case of forum shopping occurred in United States v. Texas<\/em>, where Texas and other states sued the Obama
\nAdministration over its immigration program, \u201cDeferred Action for Parents of
\nAmericans and Lawful Permanent Residents\u201d (DAPA), which granted legal status to
\nmillions of undocumented immigrants.[25]<\/a> The
\ncase was brought in the Southern District of Texas in the Brownsville division
\nwhich had only two active judges.[26]<\/a>
\nOne of those judges was Andrew Hanen who was known to be conservative and had
\npublicly criticized the Obama Administration\u2019s immigration policies.[27]<\/a>
\nJudge Andrew Hanen ended up getting the case.[28]<\/a> Forum
\nshopping runs the risk of painting the judicial process as just another
\ninstance of political gamesmanship, endangering respect for the judicial
\nprocess as a whole. <\/p>\n\n
\nissue similar to yet distinct from forum shopping is asymmetric issue
\npreclusion. If a challenge is brought to a statute and it is upheld, that
\ndecision is directly binding only on the parties to that case. If instead the
\nstatute is found unconstitutional and a nationwide injunction is issued, the
\nfederal government is enjoined from enforcing that statute anywhere.[29]<\/a> A
\nsobering example of this asymmetry is illustrated in United States v. AMC Entertainment<\/em>, which involved interpretation
\nof the Americans with Disabilities Act.[30]<\/a>
\nWhile the Fifth Circuit held for AMC, a district court in California ruled
\nagainst AMC, issuing an injunction that was nationwide in scope and conflicted
\nwith the Fifth Circuit\u2019s decision. While
\nthe 9th Circuit later narrowed the injunction to exempt the 5th Circuit because
\ncomity concerns, the results asymmetrically benefitted the plaintiffs. Even
\nthough AMC won once and lost once, it had to comply with the 9th Circuit\u2019s
\ninjunction in eleven out of twelve circuits. While that case involved a private
\nparty defendant, it illustrates the same problems the federal government faces
\nas a defendant.[31]<\/a>
\nThis asymmetry exacerbates the potential for forum shopping because even if the
\ninitial plaintiff does not forum shop and the statute is upheld, future
\nplaintiffs\u201d need only find a single ideologically aligned judge to defeat the
\ngovernment. <\/p>\n\n
\npossibility that judges will issue conflicting injunctions is a doomsday
\nscenario which has never taken place, but the previously mentioned case United States v. Texas<\/em> offers some
\nvaluable lessons in the dangers of nationwide injunctions. After 5th Circuit
\naffirmed the district court, the death of Justice Scalia caused the Supreme
\nCourt to split 4-4, affirming the 5th<\/sup> Circuit\u2019s decision. Many
\nplaintiffs attempted to circumvent the District of Texas\u2019 injunction by
\nchallenging its scope, while one district judge in New York even signaled his
\nwillingness to disregard the district court in Texas\u2019 injunction.[32]<\/a> While Scalia\u2019s seat has since been filled,
\nthis case showed a possible doomsday scenario: two circuits issue conflicting
\ndecisions, while the Supreme Court deadlocks 4-4 on the constitutionality of
\nthe statute.[33]<\/a>
\nThis could leave a plaintiff in a bind, mandated by one judge to follow a statute,
\nbut prohibited by another from doing the same. <\/p>\n
\nsuch doomsday scenario has occurred recently,[34]<\/a>
\nsince most conflicts are resolved by one court backing down,[35]<\/a>
\nthe case being reversed by the circuit court,[36]<\/a> or
\none court\u2019s decision to exclude from injunctions circuits which have upheld
\nchallenged policies.[37]<\/a>
\nHowever, it is just common sense conflicting injunctions are much more likely
\nif judges issue more injunctions with broad scopes. Since nationwide
\ninjunctions are a relatively recent and rapidly proliferating phenomenon,[38]<\/a>
\nit is likely that more conflicts will occur.<\/p>\n\n
\nwidely hailed benefit of the circuit court system is that it allows for what
\nJudge Leventhal famously called a \u201cvalue in percolation among the circuits.\u201d[39]<\/a>
\nUnder this account, the ability of multiple circuits to review novel issues of
\nlaw and fashion different solutions to them provides at least two advantages.
\nFirst, it helps filter out the truly difficult cases, which would benefit most
\nfrom Supreme Court review. If an issue seems difficult at first but every
\ncircuit to review it comes to the same conclusion, the likelihood that it was
\ndecided correctly are high. If not, than the Supreme Court can and should
\nexercise appellate review to resolve the circuit split. Second, percolation
\nallows for more judges to lend their voices to the discussion, increasing the
\ndiversity of viewpoints presented, which may cause the final version of
\narguments on both sides to be presented in their most compelling forms. In
\nJustice Ginsburg\u2019s words, \u201c[W]hen frontier legal problems are presented,
\nperiods of ‘percolation’ in, and diverse opinions from, state and federal
\nappellate courts may yield a better informed and more enduring final pronouncement
\nby this Court.\u201d[40]<\/a>\n<\/p>\n
\ninjunctions undercut both of these features of our system. First, they prevent
\nthe system from screening meritorious issues as effectively. A nationwide
\ninjunction may increase or decrease the chance of certiori<\/em> being granted. If the case is relatively mundane, the
\nchances of cert. <\/em>being granted are
\nlikely decreased since no circuit split is able to develop, keeping the case
\noff the radar.[41]<\/a>
\nIf the case is high-profile, as was the case with DAPA litigation, a nationwide
\ninjunction may have the opposite effect, forcing the Supreme Court to grant cert.<\/em> as soon as possible to resolve the
\nresulting crisis. In both cases, however, the filtering process fails, forcing
\nthe Supreme Court to take cases it might not have needed to take, or preventing
\nimportant legal issues from garnering the attention they deserve. When cases
\nare forced through the system more quickly with no other circuits having a
\nchance to review the issue, the Supreme Court looses out on some of the insight
\nit might have gained from those circuit judges and legal scholarship that would
\notherwise have time to be written. <\/p>\n\n
\nof nationwide injunctions is that they promote uniformity among the courts.[42]<\/a>
\nIronically, however, the use of nationwide injunctions has left the law of
\nequity itself in a state of disarray. Contrast, for example, two quotes from
\nthe same circuit. Judge Posner wrote in 2011 \u201c[w]hen the court believes the
\nunderlying right to be highly significant, it may write injunctive relief as
\nbroad as the right itself.\u201d[43]<\/a> However,
\nanother 7th Circuit decision that Posner himself signed onto stated the
\nopposite conclusion: \u201cA wrong done to plaintiff in the past does not authorize
\nprospective, classwide relief unless a class has been certified. Why else
\nbother with class actions?\u201d[44]<\/a>
\nNor is this confusion limited to the relationship between class actions and
\nbroad injunctive relief. Courts are split on whether the Administrative
\nProcedure Act calls for nationwide injunctions,[45]<\/a>
\nand whether o not facial challenges are more deserving of nationwide
\ninjunctions.[46]<\/a>
\nAs a result, judges have virtually complete discretion whether or not to issue
\nan injunction, and can cite authority supporting any decision about the scope
\nof equitable relief.<\/p>\n\n
\nof the appeal of nationwide injunctions is it appears egalitarian\u00bea
\nnarrow injunction protects only the plaintiff who happened to initiate the
\nlitigation and had the resources to do so. It may seem unfair to allow the
\ngovernment to enforce an unconstitutional in other jurisdictions when, with the
\nstroke of a pen, the district court judge can right all the nation\u2019s wrongs.
\nHowever reasonable, this conflicts with two widely accepted legal rules: the
\nrule that non-mutual issue preclusion does not apply to the federal government,
\nand intercircuit agency non-acquiescence. <\/p>\n
\nfirst of these rules was endorsed unanimously by the Supreme Court in United States v. Mendoza<\/em>, which held
\nthat the federal government was not subject to non-mutual issue preclusion.[47]<\/a>
\nThis means that the federal government is free to re-litigate issues that it
\npreviously lost.[48]<\/a>
\nThe doctrine of issue preclusion (also known as collateral estoppel) holds that
\nparties are estopped from relitigating issues that they had already litigated
\nand lost.[49]<\/a>
\nThe common-law rule was that collateral estoppel required mutuality, meaning
\nthat it only applied if the party asserting collateral estoppel and the party
\nit was being asserted against were parties (or privies) to the original
\nlitigation.[50]<\/a>
\nThe Supreme Court relaxed the requirement of mutuality in the interest of
\npreserving judicial resources, but also to promote finality and uniformity.[51]<\/a> In
\nMendoza<\/em>, however, the Supreme Court
\nruled that nonmutual offensive collateral estoppel does not apply to the
\ngovernment because doing so would \u201csubstantially thwart the development of
\nimportant questions of law by freezing the first final decision rendered on a particular
\nlegal issue.\u201d[52]<\/a>\n<\/p>\n
\ninjunctions, however, constitute an end-around Mendoza <\/em>because they effectively prevent the federal government
\nfrom relitigating issues in other courts, subjecting the federal government to
\na form of de-facto claim preclusion. As noted above, this poses the same harms
\nto the judicial system that non-mutual claim preclusion against the government
\nwould have: thwarting percolation among the circuits and putting pressure on
\nthe Supreme Court\u2019s certiori <\/em>process.[53]<\/a> Even
\nthough Mendoza <\/em>signaled the
\nimportance of the federal government having discretion in relitigating
\npreviously decided issues, courts have frequently prevented exactly that by
\nissuing nationwide injunctions.<\/p>\n
\nagency nonacquiescence is a second doctrinal inconsistency with the use of nationwide
\ninjunctions is.[54]<\/a>
\nWhile the Supreme Court has never specifically endorsed any form of agency nonacquiescence,
\nit flows logically from Mendoza <\/em>and
\nthe rule against intercircuit stare decisis: if court of appeals decisions are
\nonly precedential within their circuit, and if according to Mendoza<\/em> the federal government should be
\nfree relitigate issues in multiple circuits, then agencies should not be bound
\nby a judicial decision nationwide until the Supreme Court resolves the issue.[55]<\/a>
\nLeaving to one side the argument over whether intra<\/em>circuit nonacquiescence is constitutional,[56]<\/a>
\nintercircuit nonacquiescence has been widely accepted.[57]<\/a> However,
\njust as nationwide injunctions constitute an end-around Mendoza<\/em>, they effectively nullify agency nonacquiescence.[58]<\/a>
\nBy enjoining agencies from enforcing policies anywhere in the country,
\nnationwide injunctions essentially require agencies to acquiesce to the
\ninjunction-issuing district court. <\/p>\nIII. Current Scholarship on Nationwide Injunctions<\/h2>\n
A. Professor Bray\u2019s Plaintiff-limited injunction<\/h3>\n
\nof the first and widely cited articles to argue how nationwide injunctions
\ncould be limited was written by Professor Bray.[59]<\/a>
\nHe argues that, because the role of the courts is solely to do justice to the
\nparties before the court, courts do not and should not have the power to enjoin
\na defendant vis-\u00e0-vis anyone but named plaintiffs.[60]<\/a>
\nProfessor Bray finds evidence for this proposition in two sources: Article III
\nand traditional principles of equity. Bray argues that because, at equity,
\nthere were no injunctions against the crown, since as noted above the
\nchancellor spoke on behalf of the king, there can be no support in equity for
\nnationwide injunctions.[61]<\/a>
\nSecond, Professor Bay argues that because Article III gave the courts the
\n\u201cjudicial power\u201d and this power was only a power to do justice between the
\nparties before the court, any equitable remedy that reaches beyond the named
\nplaintiffs violates Article III.[62]<\/a>
\nLastly, Professor Bray argues that limits on traditional equity were not
\nnecessary because there was one chancellor, while because of the circuit court
\nsystem in the United States there are \u201cmultiple chancellors.\u201d[63]<\/a><\/p>\n
\nProfessor Bray\u2019s plaintiff-limited injunction is clear and easy to apply, it is
\nto be disfavored for multiple reasons. First, as noted above, while it is true that
\ntraditional principles of equity did not often allow for courts to reach
\nnon-parties,[64]<\/a>
\nequity constantly evolved to meet new issues of the day that the formalistic
\nand static common law could not.[65]<\/a>
\nEven if this is true, it represents an unfortunate misunderstanding of the role
\nof equity. Because the chancellor stood in the place of \u201cGod and King,\u201d[66]<\/a>
\nequity\u2019s ability to fashion new remedies to meet new problems is clearly
\nestablished. Had there been a widespread failure of the common law that
\nrequired injunctions to other parties, it seems clear that equity would have
\nhad the authority to do exactly that.<\/p>\n
\nBray\u2019s Article III argument is distinct, but also vulnerable. Under this
\naccount, the \u201colder\u201d (and correct) conception of the judiciary is one in which
\nthe judiciary merely refused to apply statutes that conflicted with the
\nconstitution because there was a higher law, while the \u201cnew\u201d (and false)
\nconception of judicial review is that judges \u201cstrike down\u201d unconstitutional
\nstatutes.[67]<\/a>
\nWhile a thorough argument about the proper conception of the judiciary is
\nbeyond the purview of this note, Professor Bray\u2019s article endorses a narrow
\nview of judicial review that, while endorsed off and on by the Court at various
\ntimes,[68]<\/a>
\nis inconsistent with the founder\u2019s understanding of the judiciary. As noted
\nabove in the section on the founding, Professor Barnett convincingly argues
\nthat the original meaning of the \u201cjudicial power\u201d included the judicial
\nnullification.[69]<\/a>
\nWhile Barnett cites may convincing sources of the original meaning of the
\n\u201cjudicial power,\u201d one quote from Alexander Hamilton is particularly
\ninstructive: \u201cthe courts were designed to be an intermediate body between the
\npeople and the legislature in order, among other things, to keep the latter
\nwithin the limits assigned to their authority.\u201d[70]<\/a> If
\none accepts an originalist framework, as Professor Bray appears to do, it is
\nclear that the courts have a role in supervising the constitutional order, and
\nare not relegated to declining to enforce statutes out of protest. <\/p>\n
\nProfessor Bray were correct about the proper role of the judiciary, his
\nproposition is clearly inconsistent with the Supreme Court\u2019s current view of
\nthe propriety of injunctions reaching beyond class members. The Supreme Court
\nhas recognized that district courts enjoy substantial discretion in fashioning
\nequitable relief, just as in England since equity was \u201ctransplanted\u201d here in
\n1789.[71]<\/a> While
\nno doubt Professor Bray would gladly acknowledge what a revolutionary effect
\nhis theory would have if it were implemented, a rigid rule that a court could
\nnever reach beyond named plaintiffs is not only contrary to the idea that
\nequity involves discretion, but would lead to a plethora of unintended
\nconsequences. <\/p>\n
\nBray freely acknowledges one of the most striking\u00beplaintiff
\ndetection.[72]<\/a>
\nThe example he provides is a good one, which was a set of fourteen plaintiffs
\nwho challenged\u00beand won\u00be a
\nCalifornia Highway Patrol policy of aggressive enforcement of helmet law, which
\nthe court found to violate Fourth Amendment.[73]<\/a> The
\nNinth Circuit affirmed an injunction against the Highway Patrol enforcing the
\npolicy against anyone, not just the named plaintiffs, because it would be
\nincredibly impractical for officers to be able to tell whether a motorcyclist
\non the road was one of the fourteen named plaintiffs that had won an injunction
\nagainst the state.[74]<\/a>
\nProfessor Bray responds that this does not matter because the burden is on the
\nState to find a way to comply with the injunction, and state could embrace a
\nmore \u201ccreative option, such as distributing decals to the [plaintiffs]\u201d to
\nassist officers with identification.[75]<\/a>
\nOf course, there is a simpler option: allowing a statewide injunction.<\/p>\n
\nbut even more difficult cases cannot be solved by issuing decals to plaintiffs,
\neven if that were an acceptable option. Take, for example, school
\ndesegregation. It is perhaps unsurprising that injunctions against governmental
\nentities changed during this time as Bray points out[76]<\/a>
\nsince the harm felt by discrimination was felt by an entire race of citizens.
\nAs a result, the Supreme Court affirmed complex and far-reaching remedies,
\ndesegregating entire school districts, setting up bussing, which was an
\nextremely complex remedial scheme.[77]<\/a>
\nAnother possible example would be nuisance law, where it would make little
\nsense to enjoin Party A from polluting the stream of Party B if the pollution,
\nin fact, affects a class of people not represented. Systemic harms require
\nsystemic remedies, but Professor Bray\u2019s theory would atomize the legal system,
\nhandicapping it from addressing these types of problems.[78]<\/a> <\/p>\nB. Siddique\u2019s \u201cComplete Relief\u201d Principal<\/h3>\n
\nsecond, more modest proposal is Zayn Siddique\u2019s \u201ccomplete relief\u201d principle,[79]<\/a>
\nwhich more or less restates the status quo approach to issuing injunctions.[80]<\/a> This
\nrule would direct courts that \u201cinjunctive relief should be no more burdensome
\nto the defendant than necessary to provide complete relief to the plaintiffs.\u201d[81]<\/a>
\nThis principle is sound, but is insufficient for a few reasons. The most
\nfundamental is that since this rule is already widely accepted by the courts,[82]<\/a>
\nif it was going to work in constraining judges, it would have done so already.
\nSecond, the \u201ccomplete relief\u201d principle works for and against the cause of
\nreducing judicial discretion with nationwide injunctions depending on which
\nhalf of the rule is emphasized. Judges who decide to issue an injunction
\nemphasize affording \u201ccomplete relief,\u201d to plaintiffs, while those who decide
\nthat a nationwide injunction is inappropriate emphasize fashioning remedies to
\nbe \u201cno more burdensome to the defendant than necessary.\u201d Therefore this
\nprinciple does nothing to change the status quo, and does not present an
\nobstacle to a judge who feels strongly that an injunction is necessary.<\/p>\nC. Berger\u2019s Circuit-Border Rule<\/h3>\n
\nthird approach to limiting the nationwide injunction is that nationwide
\ninjunction should be geographically limited to the circuit in which the issuing
\ncourt resides.[83]<\/a>
\nBerger argues that this approach is preferable because sometimes injunctions
\nbroader than just the named parties is necessary, but that nationwide
\ninjunctions are too extreme of a remedy and should not be used.[84]<\/a>
\nBerger advocates this proposal for two reasons: the congressional policy choice
\nto divide the circuits into geographic units, and the policies underlying the
\nSupreme Court\u2019s decision Califano<\/em>,
\nwhich held that the federal government is not subject to nonmutual issue
\npreclusion.[85]<\/a>
\nWith the first warrant, Berger writes that the circuit court system \u201cembody a
\ncongressional policy judgment that they are large enough to create regional
\nuniformity yet distinct enough to foster genuine percolation and intercircuit
\ndialogue, thus striking an equilibrium between these competing values. The
\ncircuit-border rule does the same.\u201d[86]<\/a>
\nAs to the second warrant\u00bethe
\nprecedent of Califano<\/em>\u00beBerger
\nargues that because the Supreme Court communicated that the ability for the
\ncircuits to communicate with each other was important, and the circuit-border
\nrule promotes the same value, it is supported by precedent.[87]<\/a><\/p>\n
\nBerger\u2019s thesis is an admirable attempt to solve a complex problem, it has a couple
\nof shortcomings. The first of these is that it is supposed rest on implied
\ncongressional intent to limit the jurisdiction of courts to their circuits. The
\nproblem with this argument is that traditional rules of equity have long held
\nthat equity could enjoin acts committed outside of the court\u2019s territorial
\njurisdiction.[88]<\/a>
\nIndeed, language in Califano<\/em>, itself
\na source Berger identifies as support for the circuit-border rule, rules out
\nthe idea that equity is limited by geography.[89]<\/a>
\nGiven the long, unbroken history of equity acting \u201cin personam\u201d regardless of
\ngeographical lines, one would expect Congress to be more explicit if it
\nintended to restrict courts\u2019 authority in this way.<\/p>\n
\nthe circuit-border rule is arbitrary. While the circuit borders are a useful
\nway of breaking up the nation, one could instead use the borders of the 94
\ndistrict courts. While such a system would doubtless be difficult to administer
\n(though still more flexible than the principle advocated by Bray), the choice
\nof where to draw the lines is a policy choice, and has no equitable \u201cpedigree.\u201d[90]<\/a>
\nTherefore, if the nationwide injunction is to be constrained, a different
\napproach is necessary.<\/p>\nD. Other Approaches<\/h3>\n
\nrecommendations for constraining the national injunction have been advanced which
\ndeserve mention here. Professor Morley has suggested that courts apply an equal
\nprotection and severability analysis before issuing a nationwide injunction,
\nrequiring plaintiffs properly seeking broad remedies to certify as a 23(b)(2)
\nclass action.[91]<\/a>
\nMaureen Carroll recommends a similar but softer approach: a set of changes to
\nmake class action lawsuits more appealing.[92]<\/a> Daniel
\nJ. Walker proposes a list of nine factors which courts should consider,
\nsuggestive of a multifactor balancing test.[93]<\/a> Lastly,
\nMichelle R. Slack proposes a rule that courts should employ presumption against
\ncertifying a class action lawsuit when the government is a party.[94]<\/a>
\nEach of these theories make good points but are not mutually exclusive with my
\nproposal,[95]<\/a>
\nbut are included here for completeness.<\/p>\nIV. Triangulating Equitable Remedies<\/h2>\n
\nexistence of discretion and ability to evolve is a feature, not a bug in the
\nsystem of equity. However, it is not without drawbacks, namely the
\nindeterminacy and inconsistency inherent with any system of standards and
\nrules. This paper suggests that the solution to the problem is the obvious and
\ntime-tested one: equitable balancing. The concept of \u201cbalancing the equities\u201d
\nis hardly new, and courts already apply it in some form. In this section I
\nargue that equitable balancing is consistent with equity\u2019s history, and that
\nbalancing tests are beneficial because they force judges to justify their
\nchoice of remedy, an important feature of the common law method. The biggest
\nroadblock to use of a balancing test in this arena are the sheer number of
\npossible factors that could be used. This paper\u2019s first contribution to the
\ndoctrinal landscape is that it proposes a three-factor framework to simplify
\nthe multiplicity of possible factors into a more manageable balancing test,
\nproviding both a means for evaluating different factual scenarios and for
\ncritiquing them.<\/p>\n
\nit seems inevitable that courts will have a great deal of discretion when
\nfashioning equitable remedies as this has been a feature of equity for
\ncenturies. Therefore, the only solution absent Congressional attention will
\nreturn to the roots of equity, engaging in a multifactor balancing test to
\nshape the appropriate remedy.[96]<\/a>
\nAs noted above, equity has a long history of providing courts with discretion.[97]<\/a>
\nTherefore, absent a statute or evidence of congressional intent to the
\ncontrary, this discretion must be a feature of any system of injunctions. A
\nsystem of multi-factor balancing is the only system that meets this
\ndescription. However, to effectively construct a multifactor balancing test, it
\nis necessary to examine as many possible factors as possible. Unfortunately,
\nthe sheer number of possible factors has not been appreciated by previous
\nscholars, and a thorough examination shows that there are far too many to
\nconstruct a simple balancing test.<\/p>\nA. The number of factors makes balancing difficult to impossible<\/h3>\n
\nthere has been some attempt to evaluate the factors courts have and should
\nconsider when deciding whether to issue a nationwide injunction,[98]<\/a>
\nany list will almost certainly be under inclusive since it is likely impossible
\nto consider, ex ante, every possible factor. Nevertheless, this note attempts
\nto collect the most important factors\u00beand
\nquite a few miscellaneous factors\u00bethat
\nhave been and should be considered by courts when fashioning an injunction. <\/p>\n\n
\ndoctrine of \u201cOur Federalism\u201d holds that federal courts should not enjoin an
\nongoing state prosecution out of concern for the interest of the states in
\ncarrying out prosecutions.[99]<\/a>
\n\u201cOur Federalism\u201d is conceptually similar to anti-commandeering cases
\nestablished by the Rehnquist court in New
\nYork v. United States[100]<\/strong><\/a><\/em>
\nand Printz v. United States<\/em>.[101]<\/a> There
\nare a number of abstention doctrines, including Pullman<\/em>,[102]<\/a> Colorado River<\/em>,[103]<\/a> Burford<\/em>, and Rooker-Feldman<\/em>[104]<\/a>
\nabstention, which are similar in the sense that they often consider issues of
\ncomity between the courts, but since they are doctrines of abstention they
\nleave discretion to the judge applying them that the 10th Amendment cases do
\nnot. While the details of injunctions will vary from doctrine to doctrine, the
\nexistence of a state as a party, especially as a defendant, may counsel towards
\na narrower injunction or even no injunction at all.[105]<\/a><\/p>\n\n
\nof the holding in United States v.
\nMendoza<\/em>,[106]<\/a>
\nthe presence of an agency as a defendant is a significant factor in weighing
\nwhether to issue a nationwide injunction or not. Because a nationwide
\ninjunction does, to some extent, subject an agency to de-facto issue preclusion
\nand renders intercircuit nonacquiescence moot,[107]<\/a>
\nif an agency is the defendant against whom an injunction is sought, a narrowing
\npresumption is to be favored. <\/p>\n\n
\ntype of agency is also material in the likelihood that a court will show
\ndifference when balancing the equities.[108]<\/a>
\nCourts may be more likely to give deference to law enforcement agencies a
\ngreater deal of deference than they would other types of agencies.[109]<\/a>
\nFor example, while this may be partially due to the nature of an inmate\u2019s
\nrights rather than the type of agency itself, the Supreme Court has approved
\nsome restrictions on inmate behavior by prison administrators, like limits on
\ncontact with the outside world, that would not be permissible in another
\ncontext.[110]<\/a>
\nSimilar in principle to issues of comity, federalism, and separation of powers,
\ncourts must be sure to not unduly pressure law enforcement\u2019s ability to carry
\nout their legal duties, while simultaneously protecting the rights of those law
\nenforcement interacts with.<\/p>\n\n
\nof the most important factors courts must consider is the substantive area of
\nlaw being applied.[111]<\/a>
\nAs noted above, civil rights cases are more likely to require complex, systemic
\nremedies than a breach of contract case (even one involving the federal government)
\nwould.[112]<\/a>
\nFirst Amendment may likewise be a candidate for broader injunctions because the
\nharm experienced, through a chilling of speech, is diffuse and difficult to
\ntrace completely to one particular plaintiff or group of plaintiffs.[113]<\/a> Professor
\nMorley\u2019s recommendation that courts conduct a kind of severability analysis
\nconcerns exactly this issue.[114]<\/a>
\nIf the harm to particular plaintiffs can be addressed by eliminating just
\ncertain portions of the statute, then a broad injunction overturning the entire
\nstatute is not necessary. By examining how localized the harm is, geographical,
\nstatutory, or otherwise, courts have an indication of how broad the remedy may
\nneed to be to afford complete relief.<\/p>\n\n
\nsome courts have arguably gone too far in treating the existence of a facial
\nchallenge as prima facie support for a nationwide injunction against an act,[115]<\/a>
\nthe nature of the challenge is nonetheless important. An influential opinion in
\nthis regard is Justice Blackmun\u2019s dissent in Lujan v. National Wildlife Federation<\/em>,[116]<\/a>
\nwhere he stated that as-applied challenges generally justify narrow remedies,
\nwhile facial challenges justify remedies that benefit non-parties.[117]<\/a>
\nThese broad remedies are not necessarily mandated in such cases and courts
\nshould consider other factors, but they are permissible.<\/p>\n\n
\nmaterial to the scope of that injunction. For example, mandatory injunctions
\nare generally more onerous on the defendant than a prohibitory injunction
\nbecause they require the defendant to actively carry out some action rather
\nthan simply refraining from action.[118]<\/a>
\nIn addition, the procedural facts of the case are important, as preliminary
\ninjunctions are generally easier to get than permanent injunctions, and should
\ntherefore be more narrowly tailored until more discovery can be done into the
\nnature of the violation (assuming that a legal wrong has even been committed).[119]<\/a><\/p>\n\n
\nthe propriety of class-wide relief in the absence of a class-action lawsuit,
\nconservation of judicial resources was an important factor that weighed in
\nfavor of issuing an injunction.[120]<\/a>
\nWhile the court also argued that the APA mandated broad injunctions, a concern
\nthat a plaintiff-focus injunction would \u201cmerely to generate a flood of
\nduplicative litigation.\u201d[121]<\/a>
\nThe fact that much of this litigation centered in the D.C. Circuit factored
\ninto the court\u2019s prediction.[122]<\/a>
\nThe pressures each circuit faces are different and the chances for duplicate
\nlitigation are unique to each case, so likely no abstract principle can be
\nstated, but conservation of judicial resources may sometimes weigh towards
\nissuing a broad injunction.<\/p>\n\n
\naffected non-parties influences whether a broad remedy is appropriate absent a
\nclass action suit for two reasons. The first of these is that if the affected
\nclass of non-parties is very small and cohesive, an injunction that reaches
\nnon-parties even more clearly falls within a court\u2019s equitable powers, as it
\napproximates the English concept of a \u201cbill of peace\u201d which even Professor Bray
\nacknowledges may be an appropriate use of the judicial power.[123]<\/a><\/p>\n
\nproblem that allowing for a single class member to win an injunction that
\naffects a large class puts defendants at systemic disadvantage.[124]<\/a>
\nWith a class action, a defendant benefits from getting res judicata against
\nmembers of the class, but faces an equally large liability towards each member
\nof the class. In contrast, if a single plaintiff can win a broad injunction
\nthat benefits an entire class, the liability to the defendant approximates that
\nof a class action lawsuit, but if the defendant wins the res judicata effect of
\nthat decision applies only against one plaintiff, leaving an almost infinite
\nnumber of other plaintiffs to bring the same lawsuit.[125]<\/a><\/p>\n\n
\naddition to the factors listed above, there are five potential issues with
\nnationwide injunctions which I list here because they have been discussed at
\nlength elsewhere. Uniformity,[126]<\/a>
\nplaintiff detection,[127]<\/a> egalitarian
\nconcerns[128]<\/a>,
\nforum shopping,[129]<\/a>
\ncomity concerns surrounding conflicting injunctions,[130]<\/a>
\nand percolation,[131]<\/a>
\nare all factors that affect the proper scope of an injunction. For discussion
\nof these topics in greater detail, see section II. <\/p>\n
\nsum, no fewer than fourteen factors are relevant in discussing the proper scope
\nof a nationwide injunction, and there are certainly more, and some of these
\nlisted could doubtlessly be broken up in even more detail. However, it seems
\nclear that Daniel Walker\u2019s complex balancing test is even more complex than it
\nfirst appears, and a purely ad hoc balancing of so many factors will leave
\njudges with almost infinite discretion.<\/p>\nB. A \u201ctriangulation\u201d of equitable remedies simplifies balancing<\/h3>\n
\npaper\u2019s first, and perhaps most significant innovation is a new framework for
\ncategorizing and evaluating the factors that affect nationwide injunctions.
\nWhile these factors are deserving of individual consideration, paying attention
\nto the key characteristics of each reveals that there are really three
\ncategories of factors: the nature of the parties before the court, the
\nsubstantive law at issue, and the effect of the decision on the court system as
\na whole. These factors can be thought of as asking \u201cwho,\u201d \u201cwhat,\u201d and \u201cwhere\u201d
\nrespectively. <\/p>\n\n
\nfirst of these categories is the nature of the parties before the court. This category
\nincludes:<\/p>\n\n
\n(state, federal, and private parties)<\/li>\n
\nissues associated with state defendants<\/li>\n
\nnonacquiescence <\/li>\n
\nsued (including whether is a law enforcement agency)<\/li>\n
\ncertified class (or conversely the size of the non-party beneficiaries)<\/li>\n
\nissues. <\/li>\n<\/ul>\n\n
\n
\nLaw\/Scope of the Injury<\/li>\n
\nChallenges<\/li>\n\n
\ndeciding the case and the macro effects on the court system as a whole<\/li>\n
\nand Asymmetric Effects of Res Judicata <\/li>\n
\nResources \/ Venue Considerations<\/li>\n
\nof the Law<\/li>\n
\nInjunctions<\/li>\nV. \u201cHot and Cold\u201d: Easy and Difficult Cases for Equitable Balancing and a New Path Forward<\/h2>\n
\nnote\u2019s second innovation is in how courts can use this factor category
\nframework to effectively apply a multifactor balancing test in determining when
\na nationwide injunction is appropriate. <\/p>\nA. Abuse of discretion in \u201chot\u201d and \u201ccold\u201d cases<\/h3>\n
\nthe main obstacle towards reigning in the unfettered use of nationwide injunctions
\nis in the ability to reverse at the court of appeals level, and a multifactor
\nbalancing test is a kind of standard, district courts will be reviewed for
\nabuse of discretion. Professor Bray argues that this is a fundamental flaw with
\nusing a standard.[132]<\/a>
\nWhile I acknowledge this difficulty, the danger is overstated. At the very
\nleast, there exists a category of cases which are \u201chot:\u201d when all three
\ncategories point towards issuing a broad injunction, then a court is firmly
\nwithin its power to do so. In contrast, when all three factors point against
\nissuing a broad injunction, then it is abuse of a discretion for a court to do
\nso. While this is imperfect since often the factors will be split,[133]<\/a>
\nthis at least affords a way to curb the greatest errors of the judiciary
\nwithout resorting to the extreme position of never allowing remedies to reach
\nnon-parties. <\/p>\nB. The common law method in \u201cwarm\u201d cases<\/h3>\n
\nin those cases where the categories are split, resorting to a balancing test
\nstill affords a benefit over the status quo: it forces judges to describe and
\njustify their reasoning. The good news for those concerned about nationwide
\ninjunctions is that, perhaps, a dialogue about the proper scope of injunctive
\nrelief is beginning which can iron out the details of these difficult cases. This
\nis the ordinary conception of how the common law works.[134]<\/a>
\nAs Oliver Wendell Holmes\u2019 eloquently stated \u201cWe must think things not words, or
\nat least we must constantly translate our words into the facts for which they
\nstand . . . .\u201d[135]<\/a>
\nLegal rules are made to apply to real circumstances, and by testing out
\ndifferent approaches, over time more effective rules are developed. Injunctions
\nshould be no exception.<\/p>\nC. Application #1: Trump\u2019s Travel Ban<\/h3>\n
\nnationwide injunctions in general are controversial, none has gotten as much
\nwidespread attention as Executive Order 13769[136]<\/a>
\nand its successor Executive Order 13780,[137]<\/a> popularly
\nreferred to as the travel ban.[138]<\/a>
\nWhile the first[139]<\/a>
\nand second[140]<\/a>
\nexecutive orders differed in important ways from a liability perspective, from
\na remedies perspective they were nearly identical and will be analyzed
\ntogether. <\/p>\n
\nthe first category, the identity and nature of the parties before the court,
\nthe defendant was (obviously) the federal government and the specific agencies
\ninvolved included the Department of Homeland Security, the Secretary of State,
\nand the President himself.[141]<\/a> The
\ndangers of enjoining the President at least are strong, analogous to the
\ndangers of enjoining a law enforcement agency[142]<\/a>
\nsince the President is made responsible for overseeing enforcement of the laws
\nby the Take Care Clause.[143]<\/a>
\nIndeed, the Fourth Circuit and Ninth Circuits both reversed the district
\ncourts\u2019 injunctions against the President personally for these exact prudential
\nreasons, though it kept the rest of the injunction intact.[144]<\/a>
\nIssues surrounding intercircuit nonacquiescence were somewhat ameliorated
\nbecause two district courts[145]<\/a>
\nand two courts of appeals[146]<\/a>
\nhad the chance to review the revised order and another district[147]<\/a>
\nand circuit[148]<\/a>
\ncourt had already reviewed the first order. The last relevant sub-factor, the
\nbreadth of the affected class, weighs strongly against issuing an injunction.
\nWhile it is difficult to say how many people the first or second travel bans
\nwould have affected, the revised travel ban limited the number of refugees per
\nyear to 50,000 while President Obama had planned to admit around 100,000,[149]<\/a>
\nso the number of unnamed plaintiffs affected is likely in the tens of
\nthousands. Putting the pieces together, every relevant sub-factor counsels
\nagainst issuing an injunction, so this category counsels against issuing an
\ninjunction.<\/p>\n
\nsecond category, the substantive area of law, is more balanced but also
\ncounsels against issuing an injunction. Immigration law does not have the same
\nspill-over effects associated with nuisance law for example. The Fourth Circuit
\ndid reason that Establishment Clause violations justify broader injunctions
\nbecause allowing the policy to be enforced against others would send a message
\nthat the plaintiffs were \u201coutsiders\u201d and \u201cnot full members of the political
\ncommunity\u201d citing Santa Fe Independent
\nSchool District v. Doe<\/em>.[150]<\/a>
\nYet the Fourth Circuit\u2019s reliance on Santa
\nFe<\/em> seems misplaced as the quote in question went to liability, not the
\nappropriate scope of the remedy. More importantly, it was possible to make
\ndistinctions between the injury felt by the individual plaintiffs seeking entry
\nto the United States, while prayer at school football games (which was at issue
\nin Santa Fe<\/em>) is binary\u00beeither
\nit happens or it does not). Because the injury is severable from the whole,
\nthis sub-element councils against issuing an injunction. The challenge was a
\nfacial challenge however, which cuts the other direction. The type of
\ninjunction sought was also prohibitory (against the executive order taking
\neffect) which is less onerous than a mandatory injunction. On balance this
\ncategory counsels against issuing an injunction because if the mere fact that a
\nchallenge were facial and prohibitory\u00bewhich
\nalmost all constitutional suits against enforcement of a law are\u00bewould
\nbe sufficient to justify an injunction. Therefore the type of injury involved
\ndoes not justify a broad injunction.<\/p>\n
\nthird and final category, the effect on the court system, likewise points away
\nfrom a nationwide injunction. The boundaries of the class size are very large,
\nso the asymmetric effects of the Res Judicata are large. Only one plaintiff must
\nprevail for every class member to benefit, while the government gets the
\nbenefit of Res Judicata. There does not appear to be a court crowding issue
\nspecifically at play like in National
\nMining Association<\/em>[151]<\/a>as none of the cases had to be filed in
\na specific circuit. Forum shopping is certainly a potential problem since an
\nimmigrant could plan to use any city as port of entry (that received
\ninternational flights) to receive standing to sue in the district of their
\nchoosing.[152]<\/a>
\nSimilar to the issue of nonmutual issue preclusion, the chance for percolation
\namong the courts was hurt by these injunctions, though multiple courts still
\nissued opinions[153]<\/a>
\nand the issue was so well publicized that there was little chance that the
\nSupreme Court would need a circuit split to be convinced to take the case.
\nUniformity in application of the law, as with any case, also played a role and
\nwas specifically mentioned by both courts of appeals.[154]<\/a>
\nUltimately the direction this factor ought to lean depends on the weight one
\nputs on the doctrinal problem with unjust Res Judicata results against the
\ngovernment, forum shopping, and percolation, compared with the benefit of uniformity
\nand efficiency. However, as Professor Bray eloquently argues, Congress\u2019s choice
\nto break up the courts into circuit was itself a policy decision to endure a
\nloss of uniformity and efficiency for more incremental, but less unstable
\nchange.[155]<\/a>
\n\u201cEach legal system can pick its poison, tending toward the vices of immediate,
\nfinal resolution or the vices of slow, provisional resolution.\u201d[156]<\/a>
\nIn close cases, because Congress has already made this policy decision, courts
\nshould apply that same policy preference in cases like this one.<\/p>\nD. Application #2: Deferred Action for Parents of Americans (DAPA)<\/h3>\n
\nJune 15, 2012, the Department of Homeland Security implemented a policy known
\nas the Deferred Action for Childhood Arrivals program (DACA), by which DHS
\nwould no longer prosecute those who were brought to the United States as
\nchildren but had not immigrated legally.[157]<\/a>
\nThat policy was supplemented on November 20, 2014 through the Deferred Action
\nfor Parents of Americans (DAPA) program which extended similar protections to
\nparents of American citizens or lawful permanent residents.[158]<\/a>
\nSeventeen states jointly sued the United States under the Take Care Clause and
\nAdministrative Procedure Act.[159]<\/a>
\nThe district court issued a preliminary injunction which was nationwide in scope[160]<\/a>
\nwhich was upheld by the Fifth Circuit.[161]<\/a>
\nThe Supreme Court however, due to the death of Justice Scalia, split 4-4,
\nupholding district court\u2019s opinion.[162]<\/a> <\/p>\n
\nthe third factor, the effect on the courts, also mostly favors issuing an
\ninjunction. Once again, because there would only be one lawsuit of this kind
\nsince 17 states all joined the lawsuit, there were no asymmetric disadvantages
\nto the federal government, and neither are there comity or percolation issues.
\nUniformity also favors a nationwide injunction (as it almost always does).
\nForum shopping is something of a concern, perhaps in this case more than any
\nother because there were such strong indications of careful venue selection.[165]<\/a>
\nThis makes this case interesting because single other sub-factor discussed was
\neither moot or favored a broad remedy, but this one factor is extremely clear
\nand negative. While this is unfortunate, the effect on the court system of
\nissuing this injunction were still generally positive in this case because the
\ncase was likely to head to the Supreme Court anyways (it took about a year for
\nthe Supreme Court to issue a decision, and at the time no-one could have
\npredicted Scalia\u2019s death), and had the policy gone into effect the courts would
\nhave had to expend considerably more resources unwinding the policy. While this
\ncategory is the closest of the three, it still pointed towards issuing an
\ninjunction.<\/p>\n
\nsummary, while there are lessons about the dangers of forum shopping to be
\nlearned from Texas<\/em>, all three
\ncategories pointed towards issuing an injunction. While a careful look at the
\ndisadvantages of nationwide injunctions should, at least compared to the status
\nquo, lead to fewer nationwide injunctions, this is not always the case as Texas v. United States<\/em> shows. <\/p>\n
\n
\n21 Eng. Rep 485, 486 (1615).<\/p>\n
\nNature of Equity Jurisprudence<\/em>, 20
\nFordham L. Rev. 23, 35 (1951).<\/p>\n