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bill Progress


  • Not enacted
    The President has not signed this bill
  • The senate has not voted
  • The house has not voted
      house Committees
      House Committee on the Judiciary
    IntroducedSeptember 7th, 2018

What is it?

This bill — known as the Injunctive Authority Clarification Act of 2018 — would amend the U.S. Code to prohibit the issuance of national injunctions (sometimes also called “non-party injunctions”) by federal courts. National injunctions prohibit the enforcement of a federal law or regulation not only against the plaintiff, but also in any other instance pending the final outcome of the case.

Impact

Plaintiffs and defendants in cases where a national injunction could be issued; federal courts; and the U.S. Code.

Cost

A CBO cost estimate is unavailable.

More Information

In-Depth: Rep. Bob Goodlatte (R-VA) introduced this bill to “restore the traditional understanding that a federal court’s injunctive power extends only to the protection of the parties before it”:

“Judicial overreach in the form of national injunctions has increasingly frustrated Administrations of both parties. Although the Trump Administration has been the target of over 22 national injunctions to date, the practice took off in 2015 as a means of stopping major Obama Administration policies. The Constitution gives courts the authority to decide cases for the parties before them, not to act as super-legislators for everyone across the country based on a single case. It simply cannot be the law that opponents of government action can seek a preliminary injunction and lose in 93 of the 94 judicial districts, win one injunction in the 94th, and through that injunction obtain a stay of government action nationwide despite it being upheld everywhere else. The Injunctive Authority Clarification Act of 2018 restores the proper balance of power between the branches of government. It has the support of a bipartisan group of some of America’s leading professors of remedies, federal courts, and administrative law, who recognize the compelling need for Congress to enact a limit on national injunctions.”

Rep. Jerrold Nadler (D-NY), the ranking member of the House Judiciary Committee, has criticized this bill, saying it would add unnecessary barriers and confusion to the legal system:

“[T]he so-called ‘Injunctive Authority Clarification Act,’ should instead be called the ‘Injunctive Authority Uncertainty Act’ because this bill would inject confusion and needless barriers to relief into the legal system. The stated goal of this measure is to ban nationwide injunctions, which are a sometimes imperfect, but often essential, equitable remedy in the federal courts.  When the federal government acts in violation of the Constitution, or breaks the law on a national scale, a nationwide injunction may be the only logical and fair remedy. The courts should certainly exercise caution and care when determining the proper scope of an injunction. But to prohibit nationwide injunctions in every circumstance, as this bill would do, is a gross overreaction to whatever perceived flaws this legal remedy may have.”

The American Bar Association (ABA), which has no specific stance on this legislation, advocates delaying consideration of this bill due to the need to study this complex issue further. Writing of behalf of the ABA’s members, ABA President Robert M. Carlson writes:

“ ABA has no specific policy on H.R. 6730, which was introduced by the chair earlier this week… After reviewing the scholarly statements submitted for the record of that hearing, we are both impressed and concerned by the range of jurisdictional, constitutional, precedential, and policy considerations raised. As several witnesses acknowledged, the issuance of so-called national injunctions was fairly obscure until just a few years ago, and since then, concern over their use has been raised by members from both sides of the aisle. Clearly, determining the proper scope of injunctive relief is not a partisan issue. It is an issue that deserves thoughtful and dispassionate bipartisan consideration, and if problems are identified, non-statutory solutions also should be given due consideration. We therefore urge the Committee also to delay consideration of H.R. 6730.”

After examining the basis for national injunctions in June 2018, Supreme Court Justice Clarence Thomas concluded that in “sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, [the Supreme Court] is dutybound to adjudicate their authority to do so.”

Attorney General Jeff Sessions has released a directive to federal prosecutors instructing them to try to curb nationwide injunctions. In a statement, AG Sessions said:

“This kind of judicial activism did not happen a single time in our first 175 years as a nation, but it has become common in recent years,” Sessions said. “It has happened to the Trump administration 25 times in less than two years. This trend must stop. We have a government to run. The Constitution does not grant to a single district judge the power to veto executive branch actions with respect to parties not before the court. Nor does it provide the judiciary with authority to conduct oversight of or review policy of the executive branch. These abuses of judicial power are contrary to law, and with these new guidelines, this Department is going to continue to fight them.”

This bill passed the House Judiciary Committee on a 14-6 vote with the support of three cosponsors, all of whom are Republicans.


Of NoteFor the first 170 years after the U.S.’ founding, there were no national injunctions, precisely because courts recognized that they would go beyond the “judicial power.” Since that time, there’s been a gradual evolution allowing the practice to avoid careful constitutional scrutiny.

In recent years, each party’s view on injunctions has been colored by whether it’s in power. Christopher Walker, a law professor at The Ohio State University Moritz College of Law, notes that since the most recent change in presidential administration, “Democrats have found the nationwide injunction great again whereas Republicans see this remedial tool as not so great anymore.

Legal scholars are divided over whether nationwide injunctions should be allowed. Samuel L. Bray, a professor at the University of Notre Dame Law School, contends that the nationwide injunction is a recent development that is generally inconsistent with traditional English and American equity practices. He argues that federal courts should not issue nationwide injunctions, but should instead provide relief only in favor of the particular plaintiff(s) in litigation.

Amanda Frost, a professor at American University’s Washington College of Law, argues that the rise in nationwide injunctions is a natural response to increased unilateral executive branch activity, wherein major policy initiatives are undertaken without legislative authorization. Frost presents the nationwide injunction as a necessary counter to potentially excessive executive power.


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / Mical Chodyra)

AKA

Injunctive Authority Clarification Act of 2018

Official Title

To amend title 28, United States Code, to prohibit the issuance of national injunctions, and for other purposes.

    Courts should not be allowed to pause a law that elected officials have voted on. The populace should have every right to sue the government over a law that impedes on human rights, but the law actually has to be in effect.
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    Checks and balances are still a thing right?
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    Tsk tsk. Do not cross the checks and balances line. Stay out of the judiciary’s space.
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    the judicial branch needs to have effective response times to respond to over each other executive power and be a proper check and balance. These injunctions are an important tool to prevent people within the Executive Branch from acting on autocratic tendencies.
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    One of the great principles of our society is the separation of and independence of the judiciary. Let it stay that way.
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    No national injunctions from circuit courts. We have long had a serious separation of powers imbalance created by judicial over-reach. This must be dealt with in one form or another before we reach a societal point of no return. Which we as a nation divided are rapidly approaching.
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    Need cks and balances!
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    Yes as far as circuit courts should not be able to rule on national issues. The Supreme Court should be the only ones able to make an injunction on an executive order.
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    The entire point of the judicial system is to check the other branches of government.
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    We need to limit power to those who only represent a part of our population. This democracy needs to be fair in a sense that all laws reflect the population not just a percentage.
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    A circuit or district judge should only be allowed to affect a law within their local area and not nationwide! Activists are abusing the court system by shopping for a low level judge to halt national level laws that impact the safety and security of everyone. Only the Supreme Court should be allowed to effectively nullify a law nationwide that is considered unconstitutional.
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    I want to say yes to this because Trump has stacked the courts and we're going to start getting really bad rulings from all those judges, but federal judge absolutely must be able to do this.
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    Seems unconstitutional to me. Also this means that Supreme Court Judges would conduct judicial review on a law that strips power away from the judicial system. This bill is a farce if I ever saw one.
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    It baffles me how much America needs a civics lesson. It doesn’t matter if the Congress makes a law. If it’s ruled unconstitutional by the court then the only way to pass the law is to make a constitutional amendment.
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    There are three separate branches which all play a part in enacting laws in order to maintain the balance of power in our Democratic Republic. Keep the balance equal. Don’t wait until after the law is in effect to then have to sue to reverse an unconstitutional law when it could have been blocked from the beginning. That is a massive waste of tax payer money and resources. Matt
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    I am getting to a point that if the republican want it and are pushing it, it's bad for the country and the American people, which is sad! This has work for 170 years and it will work for another 170. It helps put a check on power.
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    No Mr. Congressman. You are trying to give more latitude and unchecked power to the president to destroy our country and our institutions more than he has done already and divide us more. Stop your stupid idea and work on protecting our democracy and defend our country from Russia and other bad actors who are screwing with our election and the fabric of our society.
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    Separation. Of. Powers.
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    This bill is an infringement of the Courts authority to stop unconstitutional or unlawful acts by the federal, state or local governments. Stopping the issuance of regulations or forcing government to follow statutes is one of Courts most important functions. It is impossible to understand how this is Constitutional.
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    This is an outrageously bad idea. Let the federal courts rule on federal law at a federal level.
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