Bills
| 3.23.22

Should Judges be Banned From Issuing National Injunctions? (H.R. 6730)

Do you support or oppose this bill?

What is H.R. 6730?

(Updated September 2, 2019)

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.

Argument in favor

Courts’ use of national injunctions bypasses normal legislative channels to pursue individual judges’ political agendas. This makes it harder for the government to function, and allows individual judges to usurp other judges’ ruling.

Argument opposed

National injunctions are a necessary court-based check against executive overreach, especially in the current political climate. As written, this may cause duplicative suits to clog up the judicial system.

Impact

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

Cost of H.R. 6730

A CBO cost estimate is unavailable.

Additional Info

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 Note: For 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)