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National Injunctions (also known as “universal injunctions,” “cosmic injunctions,” “nationwide injunctions”) are an equitable remedy employed by courts to bind defendants in their relations with nonparties. In its prototypical form, a national injunction is used to restrict the federal government defendant from enforcing a statute or regulation against anyone.

National injunctions have come into common use and controversy during the Obama and Trump administrations, when they were used by federal judges to enjoin the enforcement of significant policies, including DAPA and the rescission of DACA.

Common Law Practice

Ordinary Injunctions

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Class Actions

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Multiplicity of Suits

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Bill of Peace

In cases where multiple parties had a common claim against the same defendant, the British Chancellor sometimes offered a remedy known as a “bill of peace.” The Chancellor would sometimes issue a remedy that applied to the defendant’s relationship with similarly situated nonparties in that preexisting group. For example, if several tenants brought a claim against a landlord that they shared in common with all tenants, then the court of equity might issue a remedy that applied to the landlord’s relations with those tenants not before the court. This order only applied to the defendant’s interactions with an identified group of similarly situated nonparties, rather than the entire world, and it depended on the group being small enough and enough actual claims being brought by members of the group.

At common law before Independence, therefore, there was “nothing remotely like a national injunction.”

History in the United States Federal Courts

First 175 Years

The common understanding for most of American history was that courts had the power to issue injunctions protecting the plaintiff but could not enjoin a defendant’s behavior with respect to nonparties, especially if that defendant was the federal government.

Scott v. Donald (1897)

James Donald sued the state of South Carolina for confiscating his alcohol under a statute he argued violated the federal Constitution. In addition to damages, he asked the court to enjoin the state from enforcing the statute against anyone. Despite agreeing that the statute was unconstitutional, and despite the defendant being a state rather than the federal government, the Supreme Court held that “we are unable to wholly approve the decree entered in this case.” The Court explained that “there may be others in like case with the plaintiff, and that such persons may be numerous, but such a state of facts is too conjectural to furnish a safe basis upon which a court of equity ought to grant an injunction.”

Frothingham v. Mellon (1923)

Harriet Frothingham sued the federal government for spending money under the Maternity Act, which she argued exceeded the powers of the federal government. She asked the Supreme Court to enjoin the government from carrying out the provisions of this act with regard to her and nonparties alike. The Supreme Court held against her unanimously, reasoning that a Court could not provide such relief without “assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.”

Municipal Taxes and Ordinances

In the nineteenth century, courts occasionally enjoined a municipality or county from enforcing a challenges tax or ordinance against nonparties. This was conceived of as an extension of the “bill of peace” because it resolved a common claim by a small and cohesive group. The Supreme Court has said this type of suit was justified by the theory that citizens of a county or municipality have a relationship comparable to that of shareholders to a corporation.

Lewis Publishing Co. v. Morgan (1913)

In 1913, the Supreme Court granted—temporarily—an order “restraining the defendants . . . from enforcing or attempting to enforce the provisions of said statute, and particularly restraining them from denying to appellant and other newspaper publishers the privileges of the mail . . . .” One scholar has interpreted this as an “injunction barring the enforcement of the new federal law against anyone until the merits had been decided.” Another has interpreted it as a simple matter of estoppel because the government had already promised to the court it would not enforce the provision against anyone during litigation.

New Deal Challenges

After the Supreme Court held numerous acts of New Deal legislation unconstitutional, it did not issue a nationwide injunction. Indeed, sometimes over a thousand individual injunctions were granted against a single provision, as each plaintiff brought suit to ensure that the statute could not apply to them.

Warren Court

Justice Clarence Thomas has written that national injunctions "emerg[ed] for the first time in the 1960s and dramatically increas[ed] in popularity only very recently."

1980s and 1990s

Bush Administration

Obama Administration

Trump Administration

Controversy Surrounding Lawfulness

Justices and Judges

In Trump v. Hawaii (2018), Justice Clarence Thomas wrote a concurrence to say that he was "skeptical that district courts have the authority to enter universal injunctions." Citing the long history of common law practice as well as the lack of statutory or constitutional authority, he concluded that "[n]o persuasive defense has yet been offered for the practice."

In a decision on a stay application in Department of Homeland Security v. New York et al. (2020), Justice Neil Gorsuch wrote a concurrence . . .criticizing the lawfulness and practical consequences of injunctions that "direct how the defendant must act toward persons who are not parties to the case." Injunctions, Justice Gorsuch explained, "raise serious questions about the scope of courts’ equitable powers under Article III" because a court only has jurisdiction to "redress the injuries sustained by a particular plaintiff in a particular lawsuit."

Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit. When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place.

Scholarship

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Executive Branch

On March 10, 2018, Attorney General Jeff Sessions authored an op-ed in National Review entitled "Nationwide Injunctions Are a Threat to Our Constitutional Order." "Nationwide injunctions," he wrote, "mean that each of the more than 600 federal district judges in the United States can freeze a law or regulation throughout the country — regardless of whether the other 599 disagree." On September 13, 2018, Attorney General Sessions issued a memorandum to the Department of Justice on "Litigation Guidelines for Cases Presenting the Possibility of Nationwide Injunctions." ________

On September 5, 2019, Attorney General William Barr authored an op-ed in the Wall Street Journal entitled 'End Nationwide Injunctions.' He criticized the effect of national injunctions on legislative and judicial deliberations, and on the limited power Article III grants to judges—especially sole district court judges.

Congress

On November 30, 2017, the House Committee on the Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on "The Role and Impact of Nationwide Injunctions by District Courts." At the hearing, Samuel Bray and Hans von Spakovsky testified on the problems with national injunctions, while Amanda Frost and Michael Morley defended the practice.

Public

The legality of national injunctions has been publicly debated at conferences of lawyers and academics, including at the 2018 American Bar Association's Appellate Judges Education Institute (AJEI) Summit and at the 2019 Federalist Society Western Chapters Conference, as well as in the National Constitution Center's "We The People" podcast.