Remarks as prepared for delivery
Thank you, Judge Oldham, for that kind introduction. It is a special honor to be introduced by you. And I won’t say I plan my events based on Judge Oldham’s panel involvement, but it is definitely a plus factor.
It’s an honor to address the Texas chapters of the Federalist Society on behalf of the Department of Justice. Thank you for everything you do to foster open and honest discussion on your state’s and our country’s most pressing legal and policy issues. And thanks to our panelists for taking the time to be a part of our discussion today.
Before I set the stage on the nationwide injunction issue, I just want to let you all know that this week the Senate confirmed six new district judges, putting us over the 150 mark at 152 confirmed Article III judges, including two Supreme Court Justices. In fact, when Stephanie Haines was confirmed this week she became the 100th district judge confirmed in this Administration. It is a true testament to the hard work of many people — including the White House, the Senate, the Department of Justice, the many supporters, and of course the terrific judges themselves, several of whom are in this room today.
This panel will address an issue that implicates the role of state attorneys general, the federal administration, and the federal courts: nationwide injunctions. Before turning things over to the panel, I’d like to set the stage by defining the issue, providing some historical context, and sharing the reasons why the Department of Justice believes that nationwide injunctions are both unlawful and harmful to our legal system.
At the Department, we define a nationwide injunction as an injunction that grants relief to non-parties, and outside of the class-action framework, when that relief is not necessary to cure the plaintiffs’ alleged injury. In other words, it’s an injunction that reaches beyond the case or controversy that is before the court.
Nationwide injunctions are a modern phenomenon. The first documented nationwide injunction issued from the D.C. Circuit in 1963 — 174 years after the lower federal courts were established. Prior to 1963, courts issued plenty of injunctions against the government, but they tailored their relief to the parties and the case or controversy that were before them. Even in the decades following the late introduction of nationwide injunctions to the American legal system, they were rare. According to the Department of Justice’s best estimates, the lower federal courts issued only 27 of them during the entire twentieth century.
Contrast that with where we are today. Courts issued 29 nationwide injunctions during the first two years of the Trump Administration. Indeed, over the past two decades, the rate of nationwide injunctions has sharply accelerated. According to the Department’s best estimates, courts are issuing nationwide injunctions at six times the rate that they did during the Obama Administration, and ten times the rate that they did during the Reagan, Clinton, and George W. Bush administrations. The number of nationwide injunctions issued against this Administration currently stands at 39.
The modern rise of nationwide injunctions is a bipartisan problem. Every Justice Department for decades has recognized that courts must limit relief to the parties before them. These injunctions require the government to win every case in order to enforce its policies, while challengers can immediately halt a policy nationwide by finding a single district judge willing to issue a nationwide injunction.
The need to go constantly to the Supreme Court because of overbroad relief issued by lower courts underscores just how disruptive nationwide injunctions are to the ability of the political branches to govern. Due to nationwide injunctions, single district judges have unilaterally prevented the Obama and Trump administrations from enforcing their policies anywhere in the country, leaving them to seek relief in the appellate courts, a process than can take years. One can imagine that the signature policies of future administrations, on any number of issues, likewise may be hindered by nationwide injunctions issued by single district judges, who are effectively deciding the matter both for the political branches and for every other judge in the country.
Nationwide injunctions aren’t just harmful to the executive’s ability to govern — they’re contrary to law and harmful to our legal system, including the courts themselves.
Our Constitution empowers the federal courts to adjudicate concrete cases and controversies between parties, not to conduct general oversight over policymaking by our elected leaders. Indeed, for the first 175 years of our republic, the courts tailored their injunctions to the parties and the cases or controversies that were before them. This long historical practice reflects an understanding of the constitutional limitations on the scope of judicial power. As the Supreme Court has observed and the Chief Justice has reiterated, “sometimes ‘the most telling indication of [a] severe constitutional problem’” is a “‘lack of historical precedent[.]’” That is just as true for novel assertions of judicial power as it is for novel assertions of legislative power.
We also need to remember that injunctions are equitable remedies. And under longstanding precedent, equitable remedies must be no broader than necessary to afford complete relief to the plaintiff. By definition, nationwide injunctions — which often afford relief that is broader than necessary to cure the alleged injury — exceed this time-honored limitation on the scope of equitable power.
Nationwide injunctions also undermine our carefully structured, hierarchical court system. Congress has chosen to organize the lower federal courts into separate circuits and districts. Nationwide injunctions undermine this system by allowing single district judges to render all-but-toothless the decisions of every other district, and every court of appeals aside from their own. This flouts one of our court system’s chief virtues — its fostering of an ordered “percolation” process in which higher courts develop well-reasoned precedent with the benefit of a diverse pool of views developed by lower courts.
In addition, nationwide injunctions incentivize harmful litigation tactics. Under the Obama Administration, plaintiffs sought nationwide injunctions here in Texas, and under the Trump Administration, they are seeking them in California and New York. This sort of forum shopping undermines public confidence in the courts. It also forces the government to appeal, often on an expedited basis, from every loss. This burdens the courts and the parties with emergency appellate litigation, often before a final judgment can be issued.
Some contend that nationwide injunctions are necessary to achieve national uniformity on important legal questions. This argument, however, gives short shrift to the mechanisms that we already have to achieve uniformity — Supreme Court review, and the class-action framework. Indeed, nationwide injunctions circumvent the procedural safeguards that Congress has established for issuing class-wide relief, and they often force the government to seek the Supreme Court’s review more quickly than it otherwise would absent a nationwide injunction.
Finally, some contend that the Administrative Procedure Act (APA) authorizes nationwide injunctions. But an act of Congress cannot empower the federal courts to exceed the scope of the judicial power that the Constitution confers on them. And in any event, the text of the APA nowhere suggests that a rule should be set aside on its face, rather than as applied to the particular challenger. Indeed, the absence of nationwide injunctions prior to the APA’s enactment, and for 17 years thereafter, suggests that the APA was not originally understood to authorize them. One year ago yesterday, Attorney General Sessions explained this point in a memorandum that established the Department’s litigation guidelines for cases presenting the possibility of nationwide injunctions. It’s a meaningful part of that memorandum that has not received much attention.
So those are the reasons why the Department of Justice across administrations has consistently opposed the issuance of nationwide injunctions, and why it will continue to do so. I understand that our panel will be discussing — and perhaps debating — many of these issues. I very much look forward to hearing what all of our panelists have to say, including those who may disagree with the arguments that I’ve outlined. But before I yield the floor, I’d like to address one particular response to these arguments that I hear from time to time. We’ll call this the sympathetic skeptics’ response.
I’ve heard some say that they’re sympathetic to our position, but they question whether change is possible. These people point out, correctly, that what we’re asking the courts to do is to police their own power. And they express general doubt that the courts will be inclined to do that.
To our sympathetic skeptics, I offer three replies.
First, ending unlawful nationwide injunctions is in the best interest of the judiciary itself. When single district judges enter a nationwide injunction, they prevent every other district judge in the country, and every circuit judge outside their own circuit, from issuing a ruling with any practical effect. While in the short term the power to unilaterally undermine other judges may seem tempting, in the long term, it’s easy to see how that power can come back to bite those who wield it. Moreover, the courts of appeals and the Supreme Court have an interest in avoiding the emergency appellate litigation and the rushed decision-making process that these injunctions often spark. And the Supreme Court has an interest in maintaining a robust percolation process that gives it the benefit of multiple perspectives before it steps in to provide nationwide uniformity.
In short, curtailing the issuance of nationwide injunctions is in the federal courts’ institutional interests.
Second, I would observe that the Department’s litigation efforts have already gained traction. I’ll cite just a couple of examples.
In December 2017, the Northern District of California issued a nationwide preliminary injunction against interim final rules that exempt certain religious employers from the ACA’s contraceptive coverage mandate. On appeal, the Ninth Circuit affirmed the grant of relief but vacated the injunction insofar as it applied outside the plaintiff states. The court observed that, as a matter of settled law, “[t]he scope of the remedy must be no broader and no narrower than necessary to redress the injury shown by the plaintiff[s],” and it held that “[o]n the present record, an injunction that applies only to the plaintiff states would provide complete relief to them.” The court also cataloged several “concerns” with nationwide injunctions, including that they “have detrimental consequences to the development of law”; they “deprive appellate courts of a wider range of perspectives”; they deprive non-parties of their “right to litigate in other forums”; and they encourage forum-shopping.
Another recent success deserves mention. A month ago, the Ninth Circuit stayed an injunction against DOJ’s and DHS’s joint interim final rule on asylum eligibility insofar as the injunction applied outside the Ninth Circuit. In doing so, it again cautioned courts against issuing nationwide injunctions. That appeal remains pending. On September 9th, the district court reinstated the nationwide scope of the injunction, but on September 11th, the Supreme Court entered a full stay of the injunction pending the government’s appeal.
These examples suggest that the future may be a bit brighter than some might have us believe.
Finally, I acknowledge what I take to be an implicit premise of the sympathetic skeptics’ response, which is that, in the words of Publius, “[a]mbition must be made to counteract ambition.” Specifically, Publius observed that, “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”
I think that point is well taken as we face a phenomenon that threatens to concentrate power in what was once called the “least dangerous” branch. And it is the concentration of power that is really one of the most shocking things about nationwide injunctions. As the attorney general has noted, single district judges are unilaterally doing what is normally takes five Supreme Court Justices to do. That’s not how our system is supposed to work. The Department of Justice will of course keep pressing its litigation arguments against nationwide injunctions, and for all of the reasons that I’ve outlined, we remain optimistic that the courts will be persuaded. But that does not mean that the political branches have no other role to play. Often, the answer to a separation-of-powers problem is a separation-of-powers solution. And we are studying other ways that the political branches might exercise their constitutional powers to respond to the problem of nationwide injunctions.
Again, I thank the Federalist Society for inviting me to come speak, and for hosting a panel on this very timely and very pressing issue. I very much look forward to hearing the discussion between the panelists.