Nationwide injunction

Professor Samuel Bray has said early equity practice included "nothing remotely like a national injunction",{{rp|425}} while a group of prominent legal historians more narrowly concluded that "no modern-style nationwide injunctions issued".Brief of Amici Curiae Legal Historians in Support of Plaintiff and Appellee the City of Chicago at 6, City of Chicago v. Whitaker, No. 18-2885 (7th Cir. Nov. 15, 2018) Courts did have the equitable power to enjoin defendants with regard to the plaintiff, but typically not the world at large.{{rp|420}} In cases where multiple parties had a common claim against the same defendant, the British chancellor sometimes offered a remedy known as a "bill of peace."{{rp|426}} The bill of peace bound the defendant against that group of parties with a common claim, regardless of whether they were all parties in the case.{{rp|426}} For example, if several tenants brought a claim against a landlord that they shared in common with all tenants, then the court of equity might issue a remedy that applied to the landlord's relations with those tenants not before the court.{{rp|426}} This order only applied to the defendant's interactions with an identified group of similarly situated nonparties, rather than the entire world, and it depended on the group being small enough and enough actual claims being brought by members of the group.{{rp|426}}

For the first 175 years of the republic, courts typically did not enjoin defendants with respect to nonparties, especially if that defendant was the federal government. Some scholars have estimated that American federal courts issued a dozen nationwide injunctions during this time, while others have estimated that American federal courts issued zero nationwide injunctions during this time.Deputy Attorney General Jeffrey A. Rosen, Address at the Administrative Conference of the United States Forum on Nationwide Injunctions and Federal Regulatory Programs (Feb. 12, 2020).

In the nineteenth century, courts occasionally enjoined a municipality or county from enforcing a challenged tax or ordinance against nonparties. This was considered an extension of the "bill of peace" because it resolved a common claim by a small and cohesive group.{{rp|427}} The Supreme Court in Frothingham v. Mellon (1923) said this type of suit was justified by the theory that citizens of a county or municipality have a relationship comparable to that of shareholders to a corporation.Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 487 (1923)

One explanation for the lack of nationwide injunctions is that the federal government itself waived its sovereign immunity from suit in 1976, while another is that venue and personal jurisdiction rules for a long time restricted litigants from suing cabinet officers outside of Washington, D.C., when seeking injunctions.Amici Curiae Legal Historians in Support of Plaintiff and Appellee the City of Chicago at 7, City of Chicago v. Whitaker, No. 18-2885 (7th Cir. Nov. 15, 2018))

Some cases from this period raised questions about the lawfulness of nationwide injunctions or closely related remedies.

• Scott v. Donald (1897) — James Donald sued the state of South Carolina for confiscating his alcohol under a statute he argued violated the federal Constitution.Scott v. Donald, 165 U.S. 58, 66 (1897) In addition to damages, Donald asked the court to enjoin the state from enforcing the statute against anyone.Scott v. Donald, 165 U.S. 107 (1897){{rp|107}} Despite agreeing that the statute was unconstitutional,{{rp|111}} the Supreme Court held that "we are unable to wholly approve the decree entered in this case."{{rp|115}} The Court explained that "there may be others in like case with the plaintiff, and that such persons may be numerous, but such a state of facts is too conjectural to furnish a safe basis upon which a court of equity ought to grant an injunction."{{rp|115}}
• Lewis Publishing Co. v. Morgan (1913) — In 1913, the Supreme Court temporarily granted an order "restraining the defendants . . . from enforcing or attempting to enforce the provisions of said statute, and particularly restraining them from denying to appellant and other newspaper publishers the privileges of the mail. . . ."{{Bluebook journal|first=Mila|last=Sohoni|title=The Lost History of the 'Universal' Injunction|volume=133|journal=Harv. L. Rev.|page=920|year=2020|url=https://harvardlawreview.org/print/vol-133/the-lost-history-of-the-universal-injunction/}}{{rp|946}} Professor Mila Sohoni interpreted the Lewis Publishing order as an "injunction barring the enforcement of the new federal law against anyone until the merits had been decided."{{rp|946}} Professor Samuel Bray interpreted it as a matter of estoppel because the government had already promised to the court it would not enforce the provision against anyone during litigation.{{Bluebook website|url=https://www.yalejreg.com/nc/a-response-to-the-lost-history-of-the-universal-injunction-by-samuel-bray/|title=A Response to The Lost History of the "Universal" Injunction|last=Bray|first=Samuel|date=Oct. 18, 2019|website=Yale J. on Regul.: Notice & Comment|language=en-US|archive-url=|archive-date=|access-date=2020-02-21}}
• Frothingham v. Mellon (1923) — Harriet Frothingham sued the federal government for spending money under the Maternity Act, which she argued exceeded the powers of the federal government.Frothingham v. Mellon, 262 U.S. 447, 479 (1923). She asked the Supreme Court to enjoin the government from carrying out the provisions of this act with regard to her and nonparties alike.{{rp|430–31}} The Supreme Court held against her unanimously, reasoning that a Court could not provide such relief without "assum[ing] a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess."Frothingham v. Mellon, 262 U.S. 447, 489 (1923)

After the federal courts held numerous acts of New Deal legislation unconstitutional, they did not issue nationwide injunctions. Sometimes over a thousand individual injunctions were granted with regard to a single provision, as each plaintiff brought suit to ensure that the statute could not apply to them.{{rp|433–35}}

Justice Clarence Thomas has written that nationwide injunctions "emerg[ed] for the first time in the 1960s and dramatically increas[ed] in popularity only very recently."{{rp|2426}} Professor Samuel Bray traces "[t]he [e]mergence of [n]ational [i]njunctions" to the 1960s.{{rp|437}}

The practice may have begun in 1963, when a panel for the Court of Appeals for the District of Columbia Circuit conditionally enjoined the Secretary of Transportation from applying his challenged wage regulation to any parties, not merely the plaintiffs.Wirtz v. Baldor Elec. Co., 337 F.2d 518, 534 (D.C. Cir. 1963)

According to the Department of Justice, nationwide injunctions remained "exceedingly rare" for a few decades after 1963.{{Bluebook website|url=https://www.justice.gov/opa/speech/assistant-attorney-general-beth-williams-delivers-remarks-nationwide-injunctions-heritage|title=Assistant Attorney General Beth Williams Delivers Remarks on Nationwide Injunctions at The Heritage Foundation|date=Feb. 4, 2019|website=Department of Justice|language=en|access-date=2020-02-22}} However, in 1968, the Supreme Court in Flast v. Cohen noted in dicta and without condemnation that "injunctive relief sought by appellants . . . extends to any program that would have the unconstitutional features alleged in the complaint," rather than merely to those programs injuring the plaintiff.Flast v. Cohen, 392 U.S. 83, 89 (1968) And in 1973, a district judge in New York granted a preliminary injunction against the Interstate Commerce Commission that would "affect the agency in the entire scope of its authority and jurisdiction."Harlem Val. Transp. Ass'n v. Stafford, [https://scholar.google.com/scholar_case?case=12929472126766484054 360 F. Supp. 1057], 1060 n.2 (S.D.N.Y. 1973), aff'd, [https://scholar.google.com/scholar_case?case=13851649436755900847 500 F.2d 328] (2d Cir. 1974)

Courts issued an average of 1.5 nationwide injunctions per year against the Reagan, Clinton, and George W. Bush administrations. In 1987, the Ninth Circuit, upheld an injunction against the Secretary of Labor to enforce the Migrant and Seasonal Agricultural Worker Protection Act within the entire forestry industry, reasoning that "the district court has the power to order nationwide relief where it is required."Bresgal v. Brock, [https://scholar.google.com/scholar_case?case=10084880633663006567 843 F.2d 1163], 1171 (9th Cir. 1987) In 1998, the District of Columbia Circuit upheld a nationwide injunction against the Army Corps of Engineers, preventing it from enforcing against anyone a rule it had promulgated under the Clean Water Act.Nat'l Min. Ass'n v. U.S. Army Corps. of Engineers, [https://scholar.google.com/scholar_case?case=3745961815305526215 145 F.3d 1399] (D.C. Cir. 1998). It held that after finding an agency rule or regulation unconstitutional under the Administrative Procedure Act, a federal court should ordinarily "vacate" the rule or regulation rather than merely hold it unlawful with respect to the plaintiffs.{{rp|1409}}

According to the Department of Justice, federal courts issued 12 nationwide injunctions against the George W. Bush administration. Among the examples were a 2002 holding of Judge Charles B. Kornmann enjoining the Department of Agriculture from enforcing a rule promulgated under the Beef Promotion and Research ActLivestock Mktg. Ass'n v. USDA, [https://scholar.google.com/scholar_case?case=12195479056777316834 207 F. Supp. 2d 992], 1007 (D.S.D. 2002), aff'd, [https://scholar.google.com/scholar_case?case=16863443372081705144 335 F.3d 711] (8th Cir. 2003), vacated on other grounds sub nom. Johanns v. Livestock Mktg. Ass'n, [https://scholar.google.com/scholar_case?case=8395881287361075212 544 U.S. 550] (2005) and a 2004 holding of Judge Reggie Walton enjoining the federal government from enforcing a policy it established under the Endangered Species Act.Am. Lands All. v. Norton, No. CIV.A. 00-2339 (RBW), 2004 WL 3246687 (D.D.C. June 2, 2004) Judge Walton reasoned that a nationwide injunction was appropriate "because the declaratory judgment alone is inadequate when a policy is found to be facially invalid."Am. Lands All. v. Norton, No. CIV.A. 00-2339 (RBW), 2004 WL 3246687, at *3 (D.D.C. June 2, 2004)

According to the Department of Justice, federal courts issued 19 or 20 nationwide injunctions against the Obama administration, including many on high-profile legal and political issues. The Fifth Circuit upheld a nationwide injunction initially issued by Judge Andrew Hanen of the Southern District of Texas against the federal government's implementation of DAPA in United States v. Texas.Texas v. United States, [https://scholar.google.com/scholar_case?case=11729216214209225109 809 F.3d 134] (5th Cir. 2015), as revised (Nov. 25, 2015) Judge Reed O'Connor of the Northern District of Texas issued a nationwide injunction to prevent the Obama administration from issuing its guidance that Title IX required institutions to allocate bathroom accessibility based on gender identity rather than biological sex.Texas v. United States, [https://scholar.google.com/scholar_case?case=48685695113464305 201 F. Supp. 3d 810], 836 (N.D. Tex. 2016).{{Bluebook website|url=https://www.usatoday.com/story/news/politics/2016/08/22/texas-judge-temporarily-blocks-obamas-transgender-directive/89094722/|title=Judge in Texas blocks Obama transgender bathroom rules|last=Korte|first=Gregory|website=USA TODAY|language=en-US|date=Aug. 22, 2016|access-date=2020-03-02}} When the Department of Justice requested that Judge O'Connor narrow relief to the plaintiff states, he declined to do so.{{Bluebook website|url=https://politi.co/2nNPMFn|title=Judge reaffirms nationwide ban on Obama transgender school bathroom policy|last=Gerstein|first=Josh|website=POLITICO|language=en|date=Oct. 19, 2016|access-date=2020-03-02}} Judge Sam R. Cummings of the Northern District of Texas issued a nationwide injunction to prevent the Obama Administration from issuing a rule that would require employers to disclose certain activities with third parties related to dissuading labor unions.Nat'l Fed'n of Indep. Bus. v. Perez, No. 5:16-CV-00066-C, 2016 WL 3766121, at *46 (N.D. Tex. June 27, 2016) And Judge Virginia A. Phillips of the Central District of California held in 2010 that the federal government's "Don't Ask, Don't Tell" policy was unconstitutional and permanently enjoined the Secretary of Defense from enforcing it.Log Cabin Republicans v. United States, [https://scholar.google.com/scholar_case?case=3551509299647365351 716 F. Supp. 2d 884], 969 (C.D. Cal. 2010), vacated as moot, [https://scholar.google.com/scholar_case?case=4321809918036450863 658 F.3d 1162] (9th Cir. 2011).

According to the Department of Justice, federal courts issued 20 nationwide injunctions against the first Trump Administration in its first year alone, and as of early 2020 had issued 55 such injunctions. Within three weeks of President Trump's inauguration, Judge James L. Robart of the Western District of Washington issued a nationwide injunction to prevent the administration from implementing its executive order restricting entry into the United States.Washington v. Trump, No. C17-0141JLR, 2017 WL 462040, at *2 (W.D. Wash. [https://casetext.com/case/washington-v-trump Feb. 3, 2017]) The following month, Judge Derrick K. Watson of the District of Hawaii issued a nationwide injunction to prevent the administration from implementing an executive order amending its entry restrictions.Hawai'i v. Trump, [https://scholar.google.com/scholar_case?case=10854745718483315928 245 F. Supp. 3d 1227], 1238 (D. Haw.), aff'd in part, vacated in part, remanded sub nom. Hawaii v. Trump, [https://scholar.google.com/scholar_case?case=6357675743830631699 859 F.3d 741] (9th Cir. 2017), vacated and remanded, [https://scholar.google.com/scholar_case?case=11234093960748195065 138 S. Ct. 377], 199 L. Ed. 2d 275 (2017) In April 2017, Judge William Orrick of the Northern District of California issued a nationwide injunction to prevent the administration from restricting funding to "sanctuary cities."Cty. of Santa Clara v. Trump, [https://scholar.google.com/scholar_case?case=8249868371712448451 250 F. Supp. 3d 497] (N.D. Cal. 2017) Judge Orrick reasoned that "where a law is unconstitutional on its face, and not simply in its application to certain plaintiffs, a nationwide injunction is appropriate."Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, [https://scholar.google.com/scholar_case?case=8249868371712448451#p539 539] (N.D. Cal. 2017) In December 2017, Judge Marsha J. Pechman issued a nationwide injunction to prevent the administration from enforcing its transgender military ban.Karnoski v. Trump, No. C17-1297-MJP, 2017 WL 6311305, at *10 (W.D. Wash. [https://www.courtlistener.com/docket/6144306/103/karnoski-v-trump/ Dec. 11, 2017])

In early 2019, Judge Richard Seeborg of the Northern District of California issued a nationwide injunction preventing the Department of Commerce from asking census takers if they are United States citizens.State v. Ross, [https://scholar.google.com/scholar_case?case=5027544074108657045 358 F. Supp. 3d 965], 1050 (N.D. Cal. 2019), appeal dismissed sub nom. California by & through Becerra v. Ross, No. 19-15456, 2019 WL 4273893 (9th Cir. [https://www.brennancenter.org/sites/default/files/legal-work/N.D.%20Cal.%2018-cv-01865%20dckt%20000235_000%20filed%202019-07-26.pdf July 26, 2019]), and appeal dismissed sub nom. City of San Jose v. Ross, No. 19-15457, 2019 WL 4273890 (9th Cir. July 30, 2019) In December 2019, Judge David Briones of the Western District of Texas issued a nationwide injunction to prevent the administration from using certain funds to erect a border wall.{{Bluebook website|last=Jordan|first=Miriam|url=https://www.nytimes.com/2019/12/10/us/border-wall-texas-judge-injunction.html|title=Judge Issues Nationwide Injunction Blocking Border Wall Funding|date=Dec. 10, 2019|publisher=The New York Times|access-date=2020-03-03|language=en-US|issn=0362-4331}} Also in 2019, Judge Jon S. Tigar of the Northern District of California issued a nationwide injunction to prevent the Department of Justice and Department of Homeland Security from implementing a rule regulating asylum eligibility.E. Bay Sanctuary Covenant v. Barr, [https://scholar.google.com/scholar_case?case=14838538897017624313 391 F. Supp. 3d 974], 981 (N.D. Cal. 2019) And multiple judges issued nationwide injunctions to prevent the Department of Homeland Security from rescinding the Deferred Action for Childhood Arrivals program,See, e.g., Batalla Vidal v. Nielsen, [https://scholar.google.com/scholar_case?case=12668662180573418350 279 F. Supp. 3d 401], 437 (E.D.N.Y. 2018) and the Ninth Circuit affirmed one such injunction.Regents of the Univ. of California v. U.S. Dep't of Homeland Sec., [https://scholar.google.com/scholar_case?case=3282293980671851128 908 F.3d 476], 520 (9th Cir. 2018), cert. granted sub nom. Dep't of Homeland Sec. v. Regents of the Univ. of California, 139 S. Ct. 2779, 204 L. Ed. 2d 1156 (2019)

Fourteen national injunctions occurred in the first three years of Biden's term.Paul Grimm. (12 February 2025). "Judges' Executive Check Works Best When Politics Kept Out of It". [https://news.bloomberglaw.com/us-law-week/judges-executive-check-works-best-when-politics-kept-out-of-it Bloomberg Law website] Retrieved 17 February 2025.

As of April 2025, federal judges have issued three federal injunctions against the Trump administration's efforts to rollback protections of the 14th amendment to the United States constitution.{{Cite web |last=Chung |first=Andrew |date=April 17, 2025 |title=US Supreme Court to hear Trump bid to enforce birthright citizenship order |url=https://www.reuters.com/world/us/us-supreme-court-hear-trump-bid-enforce-birthright-citizenship-order-2025-04-17/ |access-date=April 18, 2025 |website=Reuters}} Courts have issued at least 14 other nationwide injunctions against the second Trump administration.

On June 27, 2025, the United States Supreme Court ruled in Trump v. CASA, Inc. that federal courts do not have the authority to issue universal injunctions, on the basis that "Congress has granted federal courts no such power" and that nationwide injunctions were not practiced when the Judiciary Act of 1789 created federal courts' jurisdiction over suits in equity.

The Supreme Court has not decided whether nationwide injunctions are lawful, but some justices have criticized the practice.{{rp|465–66}} In Trump v. Hawaii (2018), Justice Clarence Thomas wrote a concurrence to say that he was "skeptical that district courts have the authority to enter universal injunctions."{{rp|2425}} Citing the long history of common law practice as well as the lack of statutory or constitutional authority, he concluded that "[n]o persuasive defense has yet been offered for the practice."{{rp|2429}} In a decision on a stay application in Department of Homeland Security v. New York (2020), Justice Neil Gorsuch wrote a concurrence criticizing the lawfulness and practical consequences of injunctions that "direct how the defendant must act toward persons who are not parties to the case." Such injunctions, he explained, "raise serious questions about the scope of courts' equitable powers under Article III" because a court only has jurisdiction to "redress the injuries sustained by a particular plaintiff in a particular lawsuit."

Judges defending their nationwide injunctions have cited the broad equitable authority of courts and the possibility of harm to nonparties. A Ninth Circuit panel has explained that a broad injunction may be necessary to fully vindicate the rights of the parties themselves and, in the immigration context, that a nationwide injunction is mandated by the language of the Naturalization Clause.Hawaii v. Trump, [https://scholar.google.com/scholar_case?case=5785282472947187943 878 F.3d 662], 701 (9th Cir. 2017), rev'd and remanded, [https://scholar.google.com/scholar_case?case=16062632215534775045 138 S. Ct. 2392] (2018) Another Ninth Circuit panel has said that the Administrative Procedure Act mandates nationwide injunctions.Earth Island Inst. v. Ruthenbeck, [https://scholar.google.com/scholar_case?case=5843265194829211259 490 F.3d 687, 699] (9th Cir. 2007), aff'd in part, rev'd in part sub nom. Summers v. Earth Island Inst., 555 U.S. 488 (2009) A Fifth Circuit panel has held that nationwide injunctions are appropriate because district courts exercise "the judicial power" of the entire United States, not just a smaller territory, and because in certain contexts—like immigration—uniformity is required.Texas v. United States, [https://scholar.google.com/scholar_case?case=11729216214209225109 809 F.3d 134], 187–88 (5th Cir. 2015), as revised (Nov. 25, 2015) On the other hand, Judge Nicholas Garaufis of the Eastern District of New York has expressed concerns about the constraining effect of nationwide injunctions on future litigation, where another court might be inclined to rule the other way on the merits but cannot do so because that would conflict with the injunction issued by a sister court.

Professor Samuel Bray is a leading critic of nationwide injunctions. Tracing equity practices at common law, Bray has argued that a federal court may only give an injunction that "protects the plaintiff vis-à-vis the defendant, wherever the plaintiff and the defendant may both happen to be."{{rp|469}} It cannot "constrain the defendant's conduct vis-à-vis nonparties."{{rp|469}} That is because, he argues, a federal court "has no constitutional basis to decide disputes and issue remedies for those who are not parties."{{rp|471}} Bray has noted that, among other problems, the current practice could lead to "conflicting injunctions," a situation where multiple parties bring suit, one court orders a defendant not to apply a statute or regulation against anyone, and another court orders the same defendant to ignore the first injunction or to continue to implement the statute or regulation.{{rp|462–64}} Professor Michael Morley has written several articles on nationwide injunctions.See {{Bluebook journal|first=Michael T.|last=Morley|title=Nationwide Injunctions, Rule 23(B)(2), and the Remedial Powers of the Lower Courts|volume=97|journal=B.U. L. Rev.|page=615|pin=622-23|year=2017|url=https://www.bu.edu/bulawreview/files/2017/04/MORLEY.pdf}} He has argued that nationwide injunctions through a national "class action" are "presumptively inappropriate," but may be lawful when the plaintiffs are asserting clearly established rights, the plaintiffs' rights are indivisible, the plaintiffs' claims are based on the burdens of the unconstitutionality of the challenged provisions, and it would be inappropriate to issue a narrower injunction.{{Bluebook journal|first=Michael T.|last=Morley|title=Nationwide Injunctions, Rule 23(B)(2), and the Remedial Powers of the Lower Courts|volume=97|journal=B.U. L. Rev.|page=615|pin=622|year=2017|url=https://www.bu.edu/bulawreview/files/2017/04/MORLEY.pdf}}

Professor Mila Sohoni has argued that nationwide injunctions are both constitutional and good.{{rp|924}} She argues that nationwide injunctions were recognized as a valid remedial power of federal courts for almost all of the twentieth century, and perhaps even earlier.{{rp|924}} Similarly, attorneys David Hausman & Spencer E. Amdur have defended nationwide injunctions because they can prevent widespread harm, such as deportations of hundreds of thousands of people.{{Bluebook journal|first=David|last=Hausman|first2=Spencer E.|last2=Amdur|title=Response, Nationwide Injunctions and Nationwide Harm|volume=131|journal=Harv. L. Rev.|page=49|pin=49-50|year=2017|url=https://harvardlawreview.org/forum/vol-131/nationwide-injunctions-nationwide-harm/}} Hausman and Amdur advocate such injunctions "when necessary to prevent real-world injuries," under a framework that "would otherwise preserve opportunities for percolation across multiple chancellors." Professor Alan Trammell has argued that preclusion principles justify nationwide injunctions specifically in cases "when the government acts in bad faith, including most notably when government officials fail to abide by settled law."{{Bluebook journal|first=Alan M.|last=Trammell|title=Demystifying Nationwide Injunctions|volume=98|journal=Tex. L. Rev.|page=67|pin=67|year=2020|url=https://texaslawreview.org/demystifying-nationwide-injunctions}}

The executive branch has often criticized the practice of nationwide injunctions. On March 10, 2018, Attorney General Jeff Sessions authored an op-ed in National Review calling nationwide injunctions "a threat to our constitutional order."{{Bluebook website|url=https://www.nationalreview.com/2018/03/nationwide-injunctions-stop-elected-branches-enforcing-law/|title=Nationwide Injunctions Are a Threat to Our Constitutional Order|last=Sessions|first=Jeff|date=Mar. 10, 2018|website=National Review|language=en-US|archive-url=|archive-date=|access-date=2020-02-22}} "Nationwide injunctions," Sessions wrote, "mean that each of the more than 600 federal district judges in the United States can freeze a law or regulation throughout the country—regardless of whether the other 599 disagree."

On September 13, 2018, Attorney General Sessions issued a memorandum to the Department of Justice on "Litigation Guidelines for Cases Presenting the Possibility of Nationwide Injunctions."{{Bluebook website|url=https://www.justice.gov/opa/press-release/file/1093881/download|title=Memorandum re Litigation Guidelines for Cases Presenting the Possibility of Nationwide Injunctions|last=Sessions|first=Jeff|date=Sep. 13, 2018|website=Department of Justice|archive-url=|archive-date=|access-date=February 21, 2020}} Consistent with "the Department's considered and longstanding" opposition to nationwide injunctions, Attorney General Sessions instructed litigators to argue before courts that nationwide injunctions

(1) exceed the constitutional limitations on judicial power; (2) deviate from longstanding historical exercise of equitable power; (3) impede reasoned discussion of legal issues among the lower courts; (4) undermine legal rules meant to ensure orderly resolution of disputed issues; (5) interfere with judgments proper to the other branches of government; and (6) undermine public confidence in the judiciary.

On November 30, 2017, the House Committee on the Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on "The Role and Impact of Nationwide Injunctions by District Courts."{{Bluebook website|url=https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=1931|title=The Role and Impact of Nationwide Injunctions by District Courts|last=|first=|date=|website=U.S. House Committee on the Judiciary|language=en|archive-url=https://web.archive.org/web/20200222010258/https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=1931|archive-date=February 22, 2020|2020-02-22|access-date=2020-02-21}} At the hearing, Samuel Bray,{{Bluebook website|url=https://docs.house.gov/meetings/JU/JU03/20171130/106665/HHRG-115-JU03-Wstate-BrayS-20171130.pdf|title=Statement of Professor Samuel L. Bray|last=Bray|first=Samuel|date=Nov. 30, 2017|website=U.S. House of Representatives Document Repository|archive-url=|archive-date=November 30, 2017|access-date=February 21, 2020}} Hans von Spakovsky,{{Bluebook website|url=https://docs.house.gov/meetings/JU/JU03/20171130/106665/HHRG-115-JU03-Wstate-vonSpakovskyH-20171130.pdf|title=Testimony Before House Subcommittee on Courts, Intellectual Property, and the Internet|last=von Spakovsky|first=Hans|date=Nov. 30, 2017|website=U.S. House of Representatives Document Repository|archive-url=|archive-date=|access-date=2020-02-21}} Amanda Frost{{Bluebook website|url=https://docs.house.gov/meetings/JU/JU03/20171130/106665/HHRG-115-JU03-Wstate-FrostA-20171130.pdf|title=Testimony on the Role and Impact of Nationwide Injunctions by District Courts|last=Frost|first=Amanda|date=Nov. 30, 2017|website=U.S. House of Representatives Document Repository|archive-url=|archive-date=|access-date=February 21, 2020}} and Michael Morley{{Bluebook website|url=https://docs.house.gov/meetings/JU/JU03/20171130/106665/HHRG-115-JU03-Wstate-MorleyM-20171130.pdf|title=Prepared Testimony of Professor Michael T. Morley Before the U.S. House of Representatives Judiciary Committee Subcommittee on Courts, Intellectual Property and the Internet|last=Morley|first=Michael|date=Nov. 30, 2017|website=U.S. House of Representatives Document Repository|archive-url=|archive-date=|access-date=February 21, 2020}} discussed the legal issues surrounding the practice.

On September 7, 2018, Representative Bob Goodlatte introduced the "Injunctive Authority Clarification Act of 2018."{{Bluebook website|url=https://www.congress.gov/bill/115th-congress/house-bill/6730/all-actions|title=Actions – H.R.6730 – 115th Congress (2017-2018): Injunctive Authority Clarification Act of 2018|last=Goodlatte|first=Bob|date=Sep. 13, 2018|website=Congress.gov|access-date=2020-03-11}} The Act did not make it to a vote, but it would have amended the United States Code to provide that:

No court of the United States (and no district court of the Virgin Islands, Guam, or the Northern Mariana Islands) shall issue an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.

On February 25, 2020, the Senate Committee on the Judiciary held a hearing on "Rule By District Judge: The Challenges of Universal Injunctions," considering an array of perspectives on the rise of the nationwide injunctions and the possible policy solutions.{{Bluebook website|url=https://www.judiciary.senate.gov/meetings/rule-by-district-judge-the-challenges-of-universal-injunctions|title=Rule by District Judge: The Challenges of Universal Injunctions|website=U.S. Senate Committee on the Judiciary|language=en|date=Feb. 25, 2020|access-date=2020-03-01}} Committee Chairman Senator Lindsey Graham noted his concern that "I don't think you can run a country this way" and Senator Dianne Feinstein expressed her interest in learning more about the practice, as she "was not really familiar with what a nationwide injunction is," but noted that nationwide injunctions helped protect hundreds of thousands of DACA recipients from deportation.

After District Judge Andrew Hanen enjoined the Obama Administration from enforcing DAPA, a number of nonparty states submitted an amicus brief asserting that they did not want to be "protected" with the relief that was extended to them.Brief of the Amicus States of Washington et al., in Support of Motion to Stay District Court Preliminary Injunction, Texas v. United States, No. 15-40238 (5th Cir. Mar. 12, 2015) "[I]in light of the complete absence of even a claim of harm in the nonplaintiff States," they wrote, "there is no basis for forcing the injunction on us."

The legality of nationwide injunctions has been publicly debated at conferences of lawyers and academics, including at the 2018 American Bar Association's Appellate Judges Education Institute (AJEI) Summit{{Bluebook website|url=https://www.americanbar.org/groups/judicial/publications/appellate_issues/2019/winter/nationwide-injunctions-are-they-good-law-are-they-good-policy/|title=Nationwide Injunctions: Are They Good Law? Are They Good Policy?|last=Bashman|first=Howard|date=Feb. 5, 2019|website=American Bar Association|language=en|archive-url=|archive-date=|access-date=2020-02-21}} and at the 2019 Federalist Society Western Chapters Conference,{{Bluebook website|url=https://fedsoc.org/conferences/2019-annual-western-chapters-conference#agenda-item-panel-one-debate-on-nationwide-injunctions|title=2019 Annual Western Chapters Conference|last=|first=|date=Jan. 26, 2019|website=Federalist Society|archive-url=|archive-date=|access-date=2020-02-21}} as well as in the National Constitution Center's "We The People" podcast.{{Bluebook website|url=https://constitutioncenter.org/interactive-constitution/podcast/when-should-judges-issue-nationwide-injunctions|title=When Should Judges Issue Nationwide Injunctions?|website=National Constitution Center|access-date=2020-02-22}}

Various media outlets have criticized the practice. In 2015, the Daily Kos published an article on "How conservative federal judges in Texas are putting a stranglehold on President Obama's policies."{{Bluebook website|url=https://www.dailykos.com/story/2016/10/27/1587515/-How-conservative-federal-judges-in-Texas-are-putting-a-stranglehold-on-President-Obama-s-policies|title=How conservative federal judges in Texas are putting a stranglehold on President Obama's policies|last=Eleveld|first=Kerry|date=Oct. 27, 2016|website=Daily Kos|archive-url=|archive-date=|access-date=2020-03-11}} The article explained:

An unsettling pattern has emerged in Texas of federal district judges issuing nationwide injunctions on policies put forward by the Obama administration. In other words, judges from the most conservative circuit in the nation are overriding the federal government and dictating policy nationwide from their benches in Texas.

The legal world has yet to come to a consensus about what to call these injunctions.{{rp|922}} In his Trump v. Hawaii concurrence, Justice Thomas noted that "[i]njunctions that prohibit the Executive Branch from applying a law or policy against anyone" have been called both "nationwide" and "universal" injunctions,{{rp|2424}} but chose to use the latter term "because it is more precise."{{rp|2424 n. 1}} He reasoned that such injunctions "are distinctive because they prohibit the Government from enforcing a policy with respect to anyone, including nonparties—not because they have wide geographic breadth."{{rp|2424 n. 1}}Justice Gorsuch, in his Department of Homeland Security v. New York concurrence, noted that injunctions that "direct how the defendant must act toward persons who are not parties to the case" could be called "nationwide," "universal," or even "cosmic" injunctions.

Professor Bray has written that "'Nationwide injunction' is especially inapt, because it emphasizes territorial breadth, when the real point of distinction is that the injunction protects nonparties."{{rp|419 n. 5}} He chose the term "National Injunctions" because it conveyed the "distinctive fact that these injunctions constrain the national government, as opposed to state governments."{{rp|419 n. 5}} Getzel Berger has similarly written that "[t]he term 'nationwide injunction' is somewhat of a misnomer" because "what makes nationwide injunctions controversial is not just that they apply everywhere in the country but that they regulate the defendant's conduct as to everyone in the country—even if they were not party to the suit."{{Bluebook journal|first=Getzel|last=Berger|title=Note, Nationwide Injunctions Against the Federal Government: A Structural Approach|volume=92|journal=N.Y.U. L. Rev.|page=1068|pin=1076|year=2017|url=https://www.nyulawreview.org/issues/volume-92-number-4/nationwide-injunctions-against-the-federal-government-a-structural-approach/}} Jesse Panuccio has argued these injunctions should be called "non-party injunctions."{{Bluebook website|url=https://www.judiciary.senate.gov/imo/media/doc/Panuccio%20Testimony.pdf|title=Every Judge a King, Every Court Supreme: The Problem of Non-party Injunctions, testimony at Hearing Before the Committee on the Judiciary United States Senate on "Rule by District Judge: The Challenges of Universal Injunctions"|last=Panuccio|first=Jesse|website=U.S. Senate Committee on the Judiciary|date=Feb. 25, 2020|archive-url=|archive-date=|access-date=}}

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• {{cite journal |first=Russell L. |last=Weaver |title=Nationwide Injunctions and the Administrative State |volume=89 |journal=Brooklyn Law Review |issue=3 |pages=853–869 |year=2024 |url=https://brooklynworks.brooklaw.edu/blr/vol89/iss3/3 }}

Category:Law of the United States