New Light on the National Injunction

Sometimes it seems like nothing ever changes with the national injunction. Federal district courts still give them, with all of the predictable consequences related to forumshopping, percolation, end runs around class actions, and rushed decisionmaking with slender factual records. But there are changes. Some federal courts of appeals have been growing noticeably more skeptical about national injunctions (e.g., the Eleventh). There has been a shift from injunctions to the so-called remedy of “vacatur.” And there is a new push from Senator McConnell to end the  national injunction–which should be welcomed by Democrats and Republicans alike, because everyone has felt and will feel the pain. (The counter-argument in the NY Times article just linked to, given by Professor Vladeck, that we should have some national injunctions instead of none, doesn’t work, because no one has come up with an effective limiting principle and it inevitably turns into ideological station identification: “good” national injunctions for me, “bad” national injunctions for thee.)

And now we have another new development–quite literally, because the Harvard Law Review’s new Developments in the Law has just dropped. Chapter 4 is called District Court Reform: Nationwide Injunctions, and it’s very impressive. Here are a couple paragraphs from the introduction:

A robust scholarly literature has grappled with these questions. Some scholars, jurists, and attorneys criticize the practice of district courts issuing nationwide injunctions as an inappropriate abuse of power.¹⁴ Others defend nationwide injunctions as a powerful way to check federal agency overreach and ensure robust relief for plaintiffs.

This Chapter explores these arguments, considering court reform at the district-court level. It also builds on a list of injunctions solicited from the Department of Justice (DOJ) to provide the first empirical evidence documenting a trend that has not been, until now, fully quantified: nationwide injunctions have indeed grown much more common, dramatically spiking during the Trump Administration before decreasing during the Biden Administration. Section A of this Chapter quantitatively surveys this rise. Given this trend, section B identifies the troubling policy consequences of more frequent nationwide injunctions. Section C surveys proposals for reform, taking into consideration the ways in which judges have recently responded to this trend with apparent self-restraint and self-awareness.

One note–although national injunctions have fallen dramatically during the Biden administration, as the Developments chapter notes this is to a substantial degree an artifact of litigants and district courts switching from national injunctions to “universal vacatur.” The bi-partisan destruction that the national injunction and its “evil twin” bring–thwarting most major domestic presidential initiatives since 2014–continues apace.

Here is the appendix with the dataset. This is a terrific contribution to the debate.

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