Demystifying Nationwide Injunctions

Abstract

The phenomenon of nationwide injunctions — when a single district court judge completely prevents the government from enforcing a statute, regulation, or policy — has spawned a vigorous debate. Scholars overwhelmingly reject this practice, arguing that an injunction should benefit only the actual plaintiffs to a lawsuit and should not apply to persons who were not parties. These critics root their arguments in various constitutional and structural constraints on federal courts, including due process, judicial hierarchy, and inherent limits on “judicial power.” This Article shows why these arguments are not persuasive. This piece offers one of the few defenses of nationwide injunctions and is grounded in a unique theory deriving from preclusion. A rich and nuanced preclusion jurisprudence has developed to answer the very question that the current debate raises: who should be bound by the results of litigation? Preclusion principles help explain why there are no constitutional or structural impediments to courts’ power to issue a nationwide injunction. These principles also reveal the circumstances under which such an injunction is (and is not) appropriate. Specifically, they suggest that while a nationwide injunction should not issue as a matter of course, it is permissible when the government acts in bad faith, including most notably when government officials fail to abide by settled law.