The Issue of Nationwide Injunctions

In her recent article for the Wall Street Journal, law professor Elizabeth Price Foley critiques the phenomenon of nationwide injunctions—judicial orders that block government actions across the entire country. Foley suggests that these injunctions empower a single district judge to wield destructive authority, frequently tying the hands of the government and potentially leading to unjust outcomes.

Foley articulates concern over how such universal injunctions can render the decisions of lower courts disproportionately impactful, overshadowing the authority of higher courts, including the Supreme Court. This imbalance poses a significant challenge to the judicial system, raising urgent questions about the scope of judicial power.

Reflection on Historical Context

To emphasize the significance of addressing nationwide injunctions, consider the historical precedent set by Dred Scott v. Sandford. In that case, the Supreme Court incorrectly ruled that Black people were not citizens. However, without a nationwide injunction, President Abraham Lincoln was able to circumvent the ruling in practice, thereby preventing complete compliance with a flawed judgment. This scenario underscores how the absence of a broad judicial order allows for a more nuanced interpretation of law and justice.

Proposed Reforms to Limit Nationwide Injunctions

Foley proposes a strategic amendment to the Federal Rules of Civil Procedure, specifically Rule 65, which governs preliminary injunctions. The fundamental change would stipulate that any injunction is restricted to the parties involved in the case. This reform could help mitigate the prevalence of nationwide injunctions by reinforcing judicial guidelines.

One of the anticipated advantages of her proposal includes the potential to curb exceptions that allow judges to extend their authority beyond traditional boundaries, as these rules are governed by higher legislative oversight from Congress and the Supreme Court. The amendment could thus serve to discourage courts from interpreting their powers too broadly in favor of issuing nationwide injunctions.

The Challenges Ahead

While Foley’s suggestions provide a foundation for limiting the issuance of nationwide injunctions, they may not be completely foolproof. Historical belief among some judges that nationwide injunctions are a constitutional remedy poses a significant barrier to reform. If lower courts remain convinced of their authority to issue such injunctions, they may find mechanisms to do so despite proposed restrictions.

The lack of legislative action and the Court’s reluctance to address the matter directly further complicate the situation. As observed in legislative hearings, cross-party opposition to reforms related to nationwide injunctions suggests a systemic obstacle impeding meaningful legal changes. Moreover, the filibuster further hinders the potential for swift action.

The Role of the Supreme Court

Ultimately, the resolution to the issue of nationwide injunctions rests with the Supreme Court. A decisive ruling affirming that these injunctions are not supported by law or the constitutional framework of Article III would address the problem directly and unequivocally. Such an opinion would be expedient and could prevent ongoing legal confusion.

Currently, the Supreme Court has shown hesitance to confront the matter even as dissenting Justices like Clarence Thomas and Neil Gorsuch advocate for clarity on this critical issue. As the dynamics within the judicial system evolve, the urgency for the Court to take action intensifies, especially in light of the implications of arbitrary judicial power on government functionality and legal consistency.