State Standing for Nationwide Injunctions Against the Federal Government

Jonathan Remy Nash*

Recent years have seen a substantial increase of cases in which states seek, and indeed obtain, nationwide injunctions against the federal government. These cases implicate two complicated questions: first, when a state has standing to sue the federal government, and second, when a nationwide injunction is a proper form of relief. For their part, scholars have mostly addressed these questions separately. In this Essay, I analyze the two questions together. Along the way, I identify drawbacks and benefits of nationwide injunctions, as well as settings where nationwide injunctions may be desirable and undesirable. I present arguments that, although I do not definitively resolve, Article III standing doctrine imposes some limits on the availability of nationwide injunctions. Assuming that to be true, I then argue that, with one possible exception—the setting where only states would have standing to pursue a claim in the first place— states ought to have no greater standing to pursue nationwide injunctions than do private actors.

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© 2019 Jonathan Remy Nash. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Robert Howell Hall Professor of Law, Emory University School of Law; Director, Emory University Center for Law and Social Science; Co-Director, Emory Center on Federalism and Intersystemic Governance. I am grateful to Michael Collins, Bradford Mank, Robert Mikos, Michael Solimine, and Ann Woolhandler for helpful comments and suggestions.