Only Where Justified: Toward Limits and Explanatory Requirements for Nationwide Injunctions

Milan D. Smith Jr.*

As this Article is submitted to the editors, at least eight cases are currently pending before the Ninth Circuit involving the propriety of a nationwide injunction.¹ In my almost fourteen years on the bench, I have never before seen nationwide injunctions handed down with the frequency that I see now. Commentators have taken notice.² Supreme Court Justices have taken notice.³ Members of Congress have taken notice.⁴

I use the term “nationwide injunction” as shorthand for a specific phenomenon: federal district court orders enjoining the federal government from implementing a particular executive policy, anywhere, and with regard to anyone in the nation.⁵ It is these injunctions that have attracted so much critical attention lately. And it is also these injunctions that have attracted my interest as I have considered a plethora of such orders coming before the Ninth Circuit. I believe that identifying this limited category of interest helps point the way toward remedies that sweep no more broadly than the problem they are actually trying to solve.

Continue reading in the print edition . . .

© 2020 Milan D. Smith, Jr. Individuals and nonprofit institutions may reproduce and distribute copies of this Article 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.

*Circuit Judge, United States Court of Appeals for the Ninth Circuit. I thank my law clerk, Marina Cassio, for her valuable assistance and scholarship in the preparation of this Article. The views expressed are mine alone and do not represent the views of the U.S. Court of Appeals for the Ninth Circuit.

1 See Doe 1 v. Trump, 418 F. Supp. 3d 573 (D. Or.), stay denied, 944 F.3d 1222 (9th Cir. 2019); Washington v. U.S. Dep’t of Homeland Sec., 408 F. Supp. 3d 1191 (E.D. Wash. 2019), stay granted sub nom. City & County of San Francisco v. U.S. Citizenship & Immigration Servs., 944 F.3d 773 (9th Cir. 2019); E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922 (N.D. Cal. 2019), stay granted in part, 934 F.3d 1026 (9th Cir. 2019) (in full disclosure, I sat on the motions panel that issued this decision), and stay granted in full, 140 S. Ct. 3 (2019) (mem.), and argued, No. 19-16487 (9th Cir. Dec. 2, 2019); Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110 (N.D. Cal. 2019), stay granted sub nom. Innovation Law Lab v. McAleenan, 924 F.3d 503 (9th Cir. 2019), and stay granted in part, denied in part sub nom. Innovation Law Lab v. Wolf, 951 F.3d 986 (9th Cir.), and aff’d sub nom. Innovation Law Lab v. Wolf, 951 F.3d 1073 (9th Cir. 2020), and stay granted pending cert. sub nom. Wolf v. Innovation Law Lab, No. 19A960, 2020 WL 1161432 (U.S. Mar. 11, 2020) (mem.); E. Bay Sanctuary Covenant v. Trump, 349 F. Supp. 3d 838 (N.D. Cal. 2018) (temporary restraining order), stay denied, 354 F. Supp. 3d 1085 (N.D. Cal. 2018), and stay denied pending appeal, 932 F.3d 742 (9th Cir. 2018), and stay denied, 139 S. Ct. 782 (2018), and aff’d, 950 F.3d 1242 (9th Cir. 2020); City & County of San Francisco v. Sessions, 349 F. Supp. 3d 924 (N.D. Cal. 2018) (entering permanent injunction but staying decision pending appeal), appeal docketed, No. 18-17308 (9th Cir. Dec. 4, 2018); Ramos v. Nielsen, 336 F. Supp. 3d 1075 (N.D. Cal. 2018), appeal docketed, No. 18-16981 (9th Cir. Oct. 12, 2018); Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1049–50 (N.D. Cal. 2018), aff’d, 908 F.3d 476, 520 (9th Cir. 2018), cert. granted, 139 S. Ct. 2779 (2019) (mem.). I count in this number those cases still on the Ninth Circuit’s docket despite issuance of a final decision, such as due to pending U.S. Supreme Court activity.

2 See, e.g., Spencer E. Amdur & David Hausman, Response, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. F. 49 (2017); Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017); Zachary D. Clopton, National Injunctions and Preclusion, 118 Mich. L. Rev. 1 (2019); Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065 (2018); Michael T. Morley, Nationwide Injunctions, Rule 23(B)(2), and the Remedial Powers of the Lower Courts, 97 B.U. L. Rev. 615 (2017); Mila Sohoni, The Lost History of the “Universal” Injunction, 133 Harv. L. Rev. 920 (2020); Alan M. Trammell, Demystifying Nationwide Injunctions, 98 Tex. L. Rev. 67 (2019).

3 See Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 599–601 (2020) (mem.) (Gorsuch, J., concurring in the grant of the stay) (Thomas, J., joining in concurrence) (criticizing the “increasingly common practice of trial courts ordering relief that transcends the cases before them,” and calling for the Court to confront “underlying equitable and constitutional questions” at an appropriate juncture); Trump v. Hawaii, 138 S. Ct. 2392, 2424–25 (2018) (Thomas, J., concurring) (observing that “[i]njunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called ‘universal’ or ‘nationwide’ injunctions—have become increasingly common,” expressing “skeptic[ism] that district courts have the authority” to issue them, and calling for the Court to “address their legality”); see also Wolf v. Cook County, 140 S. Ct. 681, 681–84 (2020) (mem.) (Sotomayor, J., dissenting from the grant of stay) (acknowledging Justices Thomas and Gorsuch’s expressed concerns with nationwide injunctions, while criticizing the Court for granting emergency stays even of more limited injunctions).

4 See, e.g., Nationwide Injunction Abuse Prevention Act of 2019, H.R. 4292, 116th Cong. (2019); Rule by District Judge: The Challenges of Universal Injunctions: Hearing Before the S. Comm. on the Judiciary, 116th Cong. (2020).

5 It is often noted that the remarkable thing about a nationwide injunction is not actually its geographical scope but is instead its extension beyond protection of just the individual plaintiff. See, e.g., Frost, supra note 2, at 1067 (highlighting injunctions that “bar[ ] the executive from enforcing federal laws and policies against anyone, not just the plaintiffs in the case before them”). I would argue that this framing misses two aspects of the phenomenon: (1) the geographic scope of the order is also of concern, not so much with regard to Article III as with regard to prudential concerns and comity, owing to its impact on percolation of legal issues through multiple lower courts; and (2) the plaintiff seeking the injunction is sometimes not actually subject to enforcement of the challenged executive action at all, making the protection offered by the injunction entirely about nonparties as a direct matter, with the plaintiff protected only indirectly.