Time to Rein in Nationwide Injunctions: Why One Judge Should Not Bind the Nation

The United States Supreme Court – Washington, D.C.

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Nationwide Injunctions PDF.pdf

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Joshua D. Kennedy

June 26, 2025

ABSTRACT

This paper critiques the growing use of nationwide injunctions issued by a single district court judge, which it argues is largely due to congressional gridlock and political polarization. This broad injunctive relief undermines stare decisis, blurs the judicial hierarchy, forgoes judicial restraint, usurps the role of the Supreme Court, and imbalances the separation of powers. Pursuant to Article III, Sections 1 and 2 of the Constitution, Congress must have the will to limit remedies to party-specific scope, while permitting a narrow nonparty relief in certain representative cases through review by a three-judge panel. Limiting nationwide injunctions would thus encourage broader reliance on class-action and multi-state lawsuits. This approach promotes judicial restraint without eliminating equitable flexibility.

BACKGROUND

The nationwide injunction has become a well-known phrase within political circles.[1] However, it has also become one of the most hypocritical phrases within legal circles. These injunctions are often issued by a single federal district court judge that halts or mandates enforcement of a federal policy nationwide. Its enforcement extends beyond the parties in the case to bind all nonparties across the country. This paper focuses on nationwide preliminary injunctions, which often remain in effect for months or years during litigation.[2]  

Historically speaking, injunctions are equitable remedies rooted in English common law. Equity existed within England for centuries to provide a more practical approach to justice when common law failed. Individuals could petition the Lord Chancellor, who would decide the case based on principles of fairness. England eventually created equity courts like the Court of Chancery.[3]

Should lower federal courts be able to enjoin all nonparties through broad injunctive relief? Historically speaking, England did occasionally allow remedies to bind nonparties through "bill of peace".[4] However, these remedies only applied to a specific, similarly situated group—not the whole country. The bill of peace is most similar to class action suits, which binds a large group of people outside of the court. Both the bill of peace and class action permit relief for similarly situated nonparties. The controversy here is that nationwide injunctions extend relief to all nonparties, even if they are not representative or similar to the plaintiffs.

The United States did not adopt separate equity courts like England, but the federal courts were granted jurisdiction over both law and equity. This was stated in Article III, Section 2 of the Constitution: "The judicial Power shall extend to all Cases, in Law and Equity."[5] This shows that equity was an important part of federal judicial power at the founding of the country. This importance was further recognized with the adopting of the Federal Rules of Civil Procedure in 1938. This formally merged law and equity into the same jurisdiction.[6] A single civil action could now include both legal and equitable claims within the same federal court. Thus, there is no disputing that the use of injunctions by lower federal courts is entirely within their authority. 

Looking at American court history, the use of nationwide injunctions by lower federal courts was nearly non-existent in the United States prior to the 1960’s. Legal scholar Samuel L. Bray, a leading voice against nationwide injunctions, argues that there is no historical precedent for the modern nationwide injunction before the 1960s.[7] His assessment is largely accurate. There is no documentation of a lower federal court case that issued a remedy comparable to a modern nationwide injunction that was not subsequently overturned. Even during polarizing periods such as the civil rights movement or the New Deal era, lower federal courts almost always issued party-specific injunctive relief.

HISTORICAL COURT CASES

One example is with United States v. Bethlehem Steel Corp., 315 U.S. 289 (1942), where the district court issued a party-specific injunction against the steel company, mandating compliance with a provision of the Walsh-Healey Act, which regulated labor standards for government contractors. Although the court could have enjoined similarly situated nonparties to the relief, it exercised judicial restraint.[8] In Perkins v. Lukens Steel Co., 310 U.S. 113 (1940), the Supreme Court reversed a nationwide preliminary injunction issued by the D.C. Circuit in 1939.[9] Although the lower court's order is sometimes cited as early historical precedent for nationwide injunctions, its reversal significantly limits its value.

The widely accepted lower federal court case that first issued an injunction with nationwide effect that was not overturned was Wirtz v. Baldor Electric Co. (1963).[10] In that case, the federal district court enjoined the enforcement of a federal labor regulation against all companies within that industry, extending relief beyond the parties to the case. Although the scope of the order was unprecedented, it received little public attention, likely because the underlying facts of the case held little consequence for most Americans.

However, to understand why Judge Corcoran issued this unprecedented nationwide injunction, one must consider the factual background of the case, and the reasoning articulated in his opinion. The U.S. Department of Labor issued a regulation for minimum wage determination within the electric motor industry under Walsh-Healey Public Contracts Act, 41 U.S.C. §§ 35–45.[11] According to Judge Corcoran, granting a party-specific relief solely to the plaintiff would create a significant competitive advantage over other companies in the same industry. Judge Corcoran, a Kennedy appointee, issued the injunction to prevent the unfair and unbalanced competition that would arise within the industry if only one company were exempt from this regulation.

This dilemma between judicial restraint and equitable relief is at the crux of the modern debate over nationwide injunctions. Before the rise of nationwide injunctions, the economic and societal disparities that resulted from party-specific relief were generally accepted as a byproduct of the judicial process. If a federal policy had a substantial impact on a group or industry, those affected likely had to seek relief individually through the courts.

Evidently, this approach created significant disparities for people across the country. A person or company with the resources could obtain a preliminary injunction against a potentially unlawful federal policy, while an indigent individual or small business may lack the means to obtain that same relief. This judicial approach effectively produced a two-tiered justice system, where access to equitable remedies was often significantly determined by wealth or class. Justice Hugo Black famously said in Griffin v. Illinois, 351 U.S. 12 (1956): “There cannot be equal justice where the kind of trial a man gets depends on the amount of money he has.”[12] Can that same sentiment be argued in this case? Is there truly equal protection under law when access to injunctive relief for a possibly unlawful federal policy is greatly shaped by economic status?

Nationwide injunctions may provide a mechanism to level the playing field and offer a more equitable form of judicial relief. There is a right to counsel for indigent defendants in criminal proceedings via Gideon v. Wainwright (1963).[13] However, civil litigants are not generally entitled to that same right, as affirmed in Lassiter v. Department of Social Services, 452 U.S. 18 (1981).[14] Thus, there is not an affirmative right within the U.S. legal system to initiate a civil suit if one is unable to afford the legal costs. If an individual or business wishes to challenge a federal policy in court, they must generally use personal funds and privately retained counsel.

JUDICIAL HIERARCHY AND STARE DECISIS

To properly evaluate the legitimacy of nationwide injunctions issued by lower federal courts, one must also consider the federal judicial hierarchy and the doctrine of stare decisis.[15] [16] The federal judicial hierarchy, from highest to lowest, is: (1) the Supreme Court, (2) the Court of Appeals (Circuit Courts), and (3) the District Courts. The Supreme Court, as the highest court in the land, issues rulings that are binding precedent nationwide. This nationwide binding authority is what distinguishes the Supreme Court from the lower federal courts, whose decisions are limited in scope and only binding within their particular jurisdiction.

The lower federal courts are referred to as “inferior courts” in Article III of the U.S. Constitution. The term “inferior” reflects their limited jurisdiction and authority relative to the Supreme Court.[17] While Article III provides both broad and limited detail regarding the federal judiciary, it clearly establishes the Supreme Court at the top of the hierarchy, with all other federal courts subordinate in both scope and power. Furthermore, outside a few specific subject-matter cases that provide original jurisdiction, the Supreme Court primarily has appellate jurisdiction. This enables the Court to review decisions made by lower courts on an appeal.

Two primary purposes for appellate review are to resolve major constitutional questions and to ensure uniformity when conflicting rulings arise from lower federal courts through the process of percolation. These functions clarify that lower federal courts frequently face serious constitutional issues, often reaching different conclusions. And by extension, such disagreements in lower federal courts can only occur if their decisions and remedies are not binding nationwide. The mechanism to resolve these lower federal court disagreements lies with the Supreme Court granting certiorari, agreeing to review and decide a lower court’s ruling.[18] Thus, the lower federal courts were never intended to have the authority to strike down or enjoin federal policy nationwide. That power rests solely with the highest court in the land.

RESPONSE TO PROFESSOR MILA SOHONI

However, there are notable cases prior to the 1960s in which federal courts issued injunctions that extended beyond the parties to the case, and these should be reviewed. Professor Mila Sohoni wrote a well-documented Harvard Law Review article about universal injunctions.[19] She highlighted the 1913 case Lewis Publishing Co. v. Morgan[20] and argues:

“It is often said that the first universal injunction as to federal law — as opposed to the first known universal injunction — was issued in the 1960s. This is not the case. In the run-up to its 1913 decision in Lewis Publishing Co. v. Morgan, the Court itself issued an order that, pending its disposition of the case, barred a federal law from being applied not just to the plaintiffs, but to anyone. I can make no claim that this is the first universal injunction against a federal law, but this order predates by fifty years the 1963 universal injunction that many critics have cited as the first. Moreover, in 1921 and 1922, the Court issued two other orders that barred the enforcement of important new federal laws beyond the plaintiffs — though not universally — by enjoining a U.S. Attorney in one critical district from enforcing those laws pending the Court’s disposition of the case.”

In Lewis Publishing Co. v. Morgan, the Court upheld the constitutionality of the Post Office Appropriation Act of 1912.[21] However, the notable action was that the Court issued a universal injunction that applied to all similarly situated newspaper publishers. While this is often argued as precedential support for nationwide injunctions, the relief was only to a specific subset of nonparties—not the entire nation. Professor Sohoni's use of "anyone" to describe the relief's scope is respectfully overstated. It only applied to "other newspaper publishers" seeking second-class mailing privileges.

The controversy is not over limited nonparty relief. Historical practices going back to British common law demonstrate a willingness to enjoin particular nonparties. However, there is no historical precedent for injunctive relief that binds all nonparties across the entire country. In this case, the federal law only applied to newspaper publishers, so the injunction did provide indirect nationwide relief. That point must be accepted by those who seek to limit nationwide injunctions. Nevertheless, the injunction was directly applied to a specific subset of nonparties that would have a competitive disadvantage without uniform relief. In other words, the relief extended to nonparties but it was within the same industry with identical injuries.

Furthermore, Sohoni’s reference to the Supreme Court’s order barring enforcement of the federal law is also, respectfully, misplaced. The Supreme Court’s decisions are binding nationwide and exercises appellate jurisdiction under Article III of the Constitution. So, it has long held the legal authority to grant nationwide stays or injunctions. The central concern here is whether lower federal courts can issue that broad injunctive relief to all nonparties.

As Michael T. Morley argues in an Alabama Law Review article, nationwide injunctions are not a monolithic remedy.[22] One category he identifies, Nationwide Plaintiff-Oriented Injunctions, involves party-specific relief that has nationwide effect solely because the plaintiff has a nationwide reach, such as a corporation like Walmart. However, this relief does not bind non-parties. The greater concern arises with injunctions that extend across the entire geographic scope of the country and bind all nonparties. Morley classifies these as Nationwide Defendant-Oriented Injunctions, where the defendant (typically federal government) is prohibited from enforcing a federal policy against anyone. This especially raises concerns when the broad relief is issued by a single federal district court judge.

Professor Sohoni goes further in her article:

 “Article III confers a singular power upon all federal courts to decide “Cases[] in . . . Equity.” It does not allocate different types of equitable remedial power to courts at different levels of the federal judicial hierarchy… That singular judicial power must be uniformly interpreted, and its scope cannot sensibly be regarded as hinging on the surmounting of hurdles to class certification that were not created until 1966. If the Supreme Court can issue a universal injunction against enforcement of a federal law in a suit by a single plaintiff, then so can a federal district court as an Article III matter… There is only one “judicial Power,” and that power includes the power to issue injunctions that protect those who are not plaintiffs.”

Professor Sohoni presents a nuanced argument regarding the role of federal courts. However, this interpretation of Article III of the Constitution requires a partial abandonment from the hierarchical and precedential constraints that define the federal judiciary. Yes, all the federal courts are vested with judicial power under the Constitution, but that does not inherently mean that their roles and powers are equal within the judicial hierarchy. The existence of judicial power is a baseline, with much of the structure, scope, and limitations of that power deriving from Congressional Acts and long-standing procedural doctrines. In other words, the judicial power existing within the federal courts does not automatically mandate that each level exercise it in the same way. The existence of power does not equate to uniform use across the federal system. This is demonstrated by the analysis of the All-Writs Act (28 U.S.C. § 1651) further below.

Professor Sohoni asserts additional cases in which courts issued an expanded relief beyond the parties in the case. Pierce v. Society of Sisters (1925) involved a broader injunction prior to the 1960s that many point to as a strong example.[23] Oregon passed a law that required all children ages 8 to 16 to attend public school. This effectively eliminated the use of religious or private schools for children. Two private schools sued the state, and the district court issued a preliminary injunction that extended relief statewide by barring any enforcement of the law. The Supreme Court unanimously struck down the state law and affirmed the injunction.

This decision showcased that injunctions are an acceptable legal tool in lower federal courts to promote equitable remedy against an unlawful legislation. As written in the majority opinion by Justice McReynolds:

“But the injunctions here sought are not against the exercise of any proper power. Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with their patrons and the consequent destruction of their business and property. Their interest is clear and immediate, within the rule approved in Truax v. Raich, Truax v. Corrigan and Terrace v. Thompson, supra, and many other cases where injunctions have issued to protect business enterprises against interference with the freedom of patrons or customers. Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229; Duplex Printing Press Co. v. Deering, 254 U. S. 443; American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184; Nebraska District v. McKelvie, 262 U. S. 404”

However, this case involved a state law, with no specific comment made on the scope of the injunction itself. The injunction was affirmed solely on the the basis that the Oregon law violated the Fourteenth Amendment's Due Process Clause. As with Lewis Publishing Co. v. Morgan, the broad injunction did not bind all nonparties nationwide. In Pierce, it only applied to the State of Oregon. The precedent set by the Supreme Court that parents have a fundamental right to direct their children's education was nationwide and decided via substantive due process.[24] In fact, this landmark case remains precedent nearly a century later. The court famously stated that “the child is not the mere creature of the state.” The injunction, though, was not nationwide, as it only enjoined a state from enforcing a state law. This does not offer support for the idea that a single federal district court judge can issue an injunction binding all nonparties across the country.

JURISDICTION

The All Writs Act (28 U.S.C. § 1651) is a federal statute that authorizes federal courts to issue orders, such as injunctions or stays, to prevent legal injustice.[25] The Act reads:

"(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction."

The Supreme Court has long utilized All Writs Act to support its authority to issue equitable remedies. The issue here is the application of the Act with respect to the lower federal courts. As stated in Clause (a) of 28 U.S.C. § 1651, the phrase “their respective jurisdictions” is key. This carefully chosen language underscores a distinction between the Supreme Court and the lower federal courts. If all federal courts had the same jurisdiction, the phrase would be unnecessary. Thus, the authority to issue these orders, such as injunctions or stays, is not uniform. The Supreme Court is the only federal court with nationwide jurisdiction. The lower federal courts all have limited geographic and subject-matter jurisdiction. This should then constrain the scope of relief they can issue, especially from single federal district court judges.

As discussed earlier, a primary purpose of the Supreme Court is to create uniformity when lower federal courts conflict on serious constitutional questions. If a a single federal district court judge has the authority to issue a binding nationwide order, it diminishes the role and responsibility of the Supreme Court. It facetiously amounts to creating 94 Supreme Courts across the country. If all federal courts had the same remedial power, one may question both why the Supreme Court was created in the first place and why the Constitution refers to all other courts as “inferior”.

In United States v. Mendoza, 464 U.S. 154 (1984), the Supreme Court held that the federal government is not subject to nonmutual offensive collateral estoppel.[26][27] It essentially means that if the government loses a case in one federal court district, it may relitigate the same legal issue with a different plaintiff in another district. The ruling emphasized the importance of the percolation process within the federal judiciary, as discussed earlier. It reinforced the idea that lower federal courts may only bind the parties before them. While Mendoza was specifically about final judgments, one can argue that the same principle should apply to remedies, particularly with a single district court judge issuing nationwide injunctions.

Lastly, the use of nationwide injunctions by lower federal courts undermines the doctrine of stare decisis. When a single district court judge issues a nationwide order, it essentially blocks any ability for the law to be interpreted differently within other district courts. When a law is allowed to be interpreted differently, the conflict inevitably emerges in the circuit courts. This creates a “circuit split” and helps persuade the Supreme Court to review the law. The use of these nationwide injunctions blur and undermine the important role of stare decisis within the federal judiciary.

Two important questions offer a clearer perspective on the controversy with nationwide injunctions issued by lower federal courts:

With the understanding that Supreme Court decisions are binding precedent nationwide, why does Congress, in 28 U.S.C. § 1, mandate that at least six justices constitute a quorum to hear cases?[28]

How many lower federal court cases in the history of the United States have resulted in a final judgment that bound the entire country?

CLASS ACTION LITIGATION

If nationwide injunctions are outlawed or severely limited, there are two important mechanisms for broad relief. First, class action lawsuits are a very powerful type of lawsuit that must be reviewed.[29] Rule 23 of the Federal Rules of Civil Procedure (FRCP) is the legal framework that allows a party to sue on behalf of a larger group (class).

To certify a class action, the plaintiffs must satisfy all four of the prerequisites of Rule 23(a) and meet at least one of the provisions of Rule 23(b):

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable.

(2) there are questions of law or fact common to the class.

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.

(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Class actions help alleviate concerns about fairness and equal justice under the law, as discussed at the beginning of the paper. These cases allow a much larger group of individuals to be bound into a single class, so lawsuits by every individual is not necessary. Two Supreme Court cases are particularly important to review. In O'Shea v. Littleton, 414 U.S. 488 (1974), the Court emphasized that a named plaintiff must have standing before class certification.[30] Furthermore, unnamed class members typically do not need to show individual standing if the named plaintiff(s) has standing and requirements of Rule 23 are met.

Another important decision is Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), in which the Court clarified the commonality requirement under Rule 23(a)(2).[31] It held that class members must share not only a common legal question but also common factual answers. If the class members have experienced various types of injury, then the courts can't bind that group into a single ruling. This decision raised the bar for class certification and made it more difficult to certify a large, diverse class.

The class action type most likely used for injunctive relief is Rule 23(b)(2). As it states, "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." This type is specifically designed for injunctive relief and is often used. A very famous class-action lawsuit is Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), which overturned the "separate but equal" doctrine and declared that racial segregation in public schools is unconstitutional.[32]

A great example of a class action receiving relief from a federal policy is with Ms. L. v. ICE, 310 F. Supp. 3d 1133 (S.D. Cal. 2018).[33] This case was heard in the U.S. District Court for the Southern District of California. The fact of the case is read as follows:

"This immigration case involved the United States government’s forcible separation of over 2,000 asylum-seeking families who arrived at the southern border without documentation. The plaintiff and her seven-year-old daughter were victims of this policy. Since their arrival on November 1, 2017, the plaintiff and her daughter had been detained. For the first 4 days upon arriving, they were detained together until the plaintiff was then sent to the Otay Mesa Detention Center in the San Diego area where she remained for nearly four months without her daughter."

"On March 9, 2018, the plaintiff filed an amended complaint to modify this lawsuit into a class action and add a new named plaintiff, Ms. C. 2018 WL 3155677. That same day, the plaintiffs moved for class certification, asking that the court certify a class defined as “[a]ll adult parents nationwide who (1) are or will be detained in immigration custody by the Department of Homeland Security, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, absent a demonstration in a hearing that the parent is unfit or presents a danger to the child.”

"On June 26, 2018, the court granted the plaintiffs’ motion for class certification, finding that the class was sufficiently numerous, that there were common questions of law among the class, that the plaintiffs are typical of the class as a whole, and that the plaintiffs would represent the class adequately. 331 F.R.D. 529."

"On that same day, Judge Sabraw granted the plaintiffs’ motion for a classwide preliminary injunction, requiring much from the government to remedy the harm."[34]

As shown above, the complaint was originally filed as an individual lawsuit but was later amended into a class action. The district court eventually issued a preliminary injunction that effectively covered nearly all families separated under the federal government's "zero tolerance" policy. By proceeding under Rule 23(b)(2), the plaintiffs secured the broad injunctive relief without resorting to nationwide injunctions. And the federal district court judge remained within their judicial jurisdiction and authority. This case exemplifies the power of class action as a mechanism for broader relief, as well as the judicial restraint that should guide lower federal courts. If nationwide injunctions are severely limited or outright ruled unconstitutional, the use of class certification must be promoted by litigants.

Furthermore, outside of individual plaintiffs, states may also seek relief from a certain federal policy, either individually or with other states. When multiple states file suit together, it is commonly referred to as a multi-state lawsuit. Like class action, a party-specific injunction will have much broader relief, reaching across the geographic jurisdiction of all the states who are a party. For example, California v. Health and Human Services, 281 F. Supp. 3d 806 (N.D. Cal. 2017) was a multi-state lawsuit that is valuable to review (13 states and District of Columbia).[35] The Trump Administration altered the Affordable Care Act's contraceptive mandate for most employer health plans by expanding moral and religious exemptions.

The interim final rules (IFRs) were issued without a full notice-and-comment period in October of 2017. The district court judge then issued a nationwide injunction against the IFRs about two months later. The HHS then allowed comments and subsequently issued final rules in November of 2018. On appeal, in California v. Azar, No. 18-15144 (9th Cir. 2018), the circuit court affirmed the district court's findings but limited the injunctive relief to the plaintiffs.[36] The decision was unanimous (3-0), with the three judges all appointed by former Democratic Presidents. The Ninth Circuit US Court of Appeals very succinctly laid out why the district court overstepped their judicial authority:

"The  district  court  abused  its  discretion  in  granting  a  nationwide  injunction.    See  Stormans,  Inc.  v.  Selecky,   586   F.3d   1109,   1140   (9th   Cir.   2009)   (“[A]n   overbroad  injunction  is  an  abuse  of  discretion”  (quoting  Lamb-Weston,  Inc.  v.  McCain  Foods,  Ltd.,  941  F.2d  970,  974 (9th Cir. 1991)).  We vacate the portion of the injunction barring enforcement of the IFRs in non-plaintiff states."

"such broad relief must be “necessary to give prevailing  parties  the  relief  to  which  they  are  entitled.”  Bresgal  v.  Brock,  843  F.2d  1163,  1170–71  (9th  Cir.  1987)  (emphasis in original removed in part); see also Califano v. Yamasaki,  442  U.S.  682,  702  (1979)  (“[I]njunctive  relief  should  be  no  more  burdensome  to  the  defendant  than  necessary to provide complete relief to the plaintiffs” before the court).  This rule applies with special force where there is   no   class   certification.7See   Easyriders   Freedom   F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501 (9th Cir. 1996) (“[I]njunctive  relief  generally  should  be  limited  to  apply  only    to    named    plaintiffs    where    there    is    no    class    certification”)."

"The    detrimental    consequences    of    a    nationwide    injunction   are   not   limited   to   their   effects   on   judicial   decisionmaking.  There are also the equities of non-parties who  are  deprived  the  right  to  litigate  in  other  forums.    SeeZayn Siddique, Nationwide Injunctions, 117 Colum. L. Rev. 2095,  2125  (2017)  (“A  plaintiff  may  be  correct  that  a  particular agency action is unlawful or unduly burdensome, but  remedying  this  harm  with  an  overbroad  injunction  can  cause serious harm to nonparties who had no opportunity to argue for  more  limited  relief”). Short  of  intervening  in  a  case, non-parties are essentially deprived of their ability to participate,   and   these   collateral   consequences   are   not   minimal.    Nationwide  injunctions  are  also  associated  with  forum shopping, which hinders the equitable administration of   laws."

"On the present record, an injunction that applies only to the plaintiff states would provide complete relief to them."

Due to the Ninth Circuit's ruling, the district judge, on January 13th, 2019, found the final rules deficient under APA but issued a preliminary injunction limited to the plaintiff states.[37] Thus, nationwide injunctive relief was issued for the IFRs, but a party-specific injunctive relief was issued for the final rules. This was a strong example of a single federal district court judge overstepping his judicial authority, with an important fact being the makeup of the circuit's panel and its unanimous ruling.

Certainly, there are challenges that arise when relying on representative litigation for equitable remedy. For example, the president signs a blatantly unlawful executive order that causes near-immediate injury. The use of class action or multi-state litigation can help limit the impact of the executive order, but the issue rests in the time it takes to coordinate with other states or follow the protocol for class certification. It is vital to remember why injunctive relief is issued. The four-pronged test for a preliminary injunction, shown in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), is as follows:[38] 

(1) It is likely to succeed on the merits.

(2) It is likely to suffer irreparable harm in the absence of preliminary relief.

(3) The balance of equities tips in its favor.

(4) An injunction is in the public interest.

Although nationwide injunctions by a single federal district court judge is troubling, there must be in place some mechanism for broad relief to occur that is both practical and constitutional.

SEPARATION OF POWERS AND FORUM SHOPPING

The key question is how far a single federal district court judge should be allowed to extend a remedy. There are 94 federal judicial districts and over 677 judgeships.[39] While there are certain cases that require a three-judge panel, most cases that involve nationwide injunctions are issued by a single judge. This raises some valid concerns about separation of powers. The president and members of Congress are elected for fixed terms and accountable to the public, yet these judges are appointed for life and can unilaterally issue a ruling that binds the entire nation.

However, this argument seems rather weak, as judges are appointed to discourage public political sway or favor. The other two branches also have a strong influence over the federal courts, as the president nominates and the Senate confirms. So, there are measures in place to ensure judicial independence and maintain separation of powers. The current controversy with nationwide injunction is largely due to the abuse of the judicial branch. That abuse is not coming from the judges themselves most of the time (although abuse of discretion does occur), but more so from political groups “forum shopping” around the country.[40]

The use of forum shopping is the fundamental by-product and consequence of allowing these federal district courts to issue nationwide injunctions. At its basic meaning, forum shopping is when litigants will strategically seek out a particular court that is likely to issue the nationwide relief that they seek. While many political groups and politicians target the judges for being bias or corrupt, the usage of these adjectives to smear or discredit the judges are largely disingenuous.

When a judge issues nationwide relief for an executive order by a Democratic president, one is unlikely to hear Republican politicians critique the judges. The same goes for Democratic politicians when a Republican president’s executive order is blocked in court. Judges are astute legal minds with a wide range of judicial philosophies. One judge may interpret a federal statute’s constitutionality much differently than another. Thus, while decisions at the Supreme Court are often not unanimous, that does not mean the Justices are pursuing some personal or political agenda. They simply interpret the law and Constitution differently. However, it would be naïve to think that judges are completely free of implicit biases.

When forum shopping, litigants look for a district (often a certain judge) that is more likely to issue a nationwide injunction and is inclined to believe the merits of the case make the federal policy unlawful. For example, if an executive order bans all assault weapons, a litigant will find a judge who favors the use of nationwide relief and also supports a more expansive interpretation of the 2nd Amendment. How is this the judge’s fault? Sure, these judges should not issue these nationwide injunctions, but neither Congress nor the Supreme Court has reined in their use.

RESPONSIBILITY OF CONGRESS/SOLUTIONS

Unless the Supreme Court restricts the use of nationwide injunctions by these lower federal courts, the responsibility must be on Congress to limit this practice. It may even be argued that the Supreme Court should not rein in the use of these injunctions because it may in fact be judicial overreach. The responsibility of deciding the scope of injunctive relief ultimately lies in the hands of Congress, so if the Court determines the scope of the lower federal courts, it may be overstepping their own constitutional authority.

However, as mentioned in this paper, there is a strong argument that the use of these injunctions by a single federal district court is an unconstitutional judicial overreach that could be reined in by the Court. There is precedent (United States v. Mendoza) of the Court limiting the reach of lower courts.

Congress once understood the power that a single federal district court judge could hold. It was evident from the now-repealed federal statute: Section 2281 and 2282 of Title 28 of the U.S. Code.[41]

28 U.S.C. § 2281 and § 2282:

“Section 2281… an interlocutory or permanent injunction restraining the enforcement, operation or execution of a State statute on grounds of unconstitutionality should not be granted unless the application has been heard and determined by a three-judge district court.”

“Section 2282… an interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress on grounds of unconstitutionality should not be granted unless the application therefor has been heard and determined by a three-judge district court.”

This federal statute was repealed largely due to its inconsistency, inefficiency, and redundancy. The Court of Appeals provided a strong appellate and review process, so the use of a three-judge panel was seemingly an unnecessary extra layer. Furthermore, these panels were only for statutes, so executive orders and regulations were not included. Also, having three judges on a panel made the litigation naturally slower. These facts made the use of these panels more of a burden than solution to the debate over nationwide injunctions.

However, the federal statute lasted from 1910-1976 for a reason. The use of three judges was to prevent judicial overreach by a single judge in matters of high importance. Also, the appeals from these panels skipped the Court of Appeals and went straight to the Supreme Court. Thus, the goal was to build a guardrail to limit the power and abuse of a single judge to strike down a federal policy and speed up the process of a uniformed ruling by the Supreme Court (not the lower federal courts). It is also important to keep in mind that the “abuse” spoken of is not usually from the judge (although discretion abuse does occur), but from the litigants who only need to find one judge—not a panel of three.

Does this mean that Congress should reinstate these three-judge district court panels? Not necessarily, unless drastic changes are made. Especially due to the current ability of district courts to issue nationwide injunctions and the inefficiency that did ultimately arise. There are other congressional actions to consider. Congress could pass a federal statute that explicitly limits injunctions by lower federal courts to the parties in the suit. This would limit the forum shopping and formally promote party-specific relief, reinforcing the Article III “case or controversy” requirement.

Congress has authority over these lower federal courts via Article III, Section 1 and 2 of the U.S. Constitution. Since they have the authority to create and regulate them, it must include the scope of remedial relief as well. This idea was reinforced in Ex parte McCardle, 74 U.S. 506 (1868), which stated:

"It is quite true, as was argued by the counsel for the petitioner, that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred by the Constitution. But it is conferred "with such exceptions and under such regulations as Congress shall make."

"We can only examine into its power under the Constitution, and the power to make exceptions to the appellate jurisdiction of this court is given by express words."[42]

Ex parte McCardle remains binding precedent to this day and affirms Congress's power to limit or even strip federal court jurisdiction. Furthermore, Yakus v. United States, 321 U.S. 414 (1944) reaffirmed Congress's power to limit the remedial scope of federal courts.[43]

A practicality issue obviously arises because, as mentioned above, nonparties have at times been given relief due to the disparity and unfair competition that arises. Applying a wage determination regulation for one company but not the others would certainly create unfair competition. It is when the relief is nationwide that binds all nonparties which creates significant concern.

Thus, Congress could limit the scope of injunctive relief by a single district court judge to party-specific remedy. However, in certain subject-matter cases where the nonparties are representative and similarly situated (Immigration, Civil Rights, etc.), Congress might permit a narrow form of nonparty injunctive relief. In those cases, the request must be initiated by the district judge based on clear statutory criteria, which would help curtail any potential abuse of discretion. The judge must draft a written explanation that demonstrates how the request meets the statutory threshold. The request would then trigger review by a randomly selected three-judge panel, which must include at least one circuit court judge.

This approach promotes judicial restraint while still allowing equitable relief in situations where a federal policy causes immediate and substantial injury to a representative group equally. By requiring a three-judge panel, the power to issue nonparty injunctive relief no longer rests in the hands of a single judge. Thus, this is similar to a class-action lawsuit but allows for quicker action.

Additionally, Congress could amend the All Writs Act (28 U.S.C. § 1651) to clarify the interpretation of “necessary or appropriate in aid of their jurisdiction”, narrowing what lower federal courts could issue.

Nevertheless, if class-action litigation, multi-state litigation, and three-judge panels are not enough, the Supreme Court does have the power to issue a stay. In cases where a federal policy is so egregiously unconstitutional and can cause severe injury, the Supreme Court can halt enforcement of a federal policy.

CONCLUSION

Judges in the United States are not supposed to decide national policy. However, when a single federal district court judge issues a nationwide preliminary injunction, it forgoes judicial restraint, usurps the role of the Supreme Court, blurs the judicial hierarchy, damages stare decisis, and imbalances the separation of powers. A singular federal district court judge should not have the sole authority to pause a federal policy nationwide.

The growth in nationwide injunctions can be attributed to many factors, but the increased influence of administrative agencies and the increased use of presidential executive orders have certainly contributed to the expansion of nonparty remedies. The executive branch has long sought to broaden its authority, but the 21st Century has dealt with persistent congressional gridlock and deep political polarization. The inability of Congress to pass legislation and engage in a bipartisan fashion has caused the executive branch to push the boundaries of its constitutional authority. Additionally, political advocacy groups have turned to the judiciary to shape national policy where legislative action is lacking.

This reality has strained the judicial branch, forcing the judges to interpret federal policy that often stretch the limits of their constitutional role. When judges push back on such legally dubious and suspect policies, they are blamed and attacked despite the fact that these policies are often designed to be created by Congress. The attacks on judges across the country are deeply troubling, as they not only threaten judicial independence but put the safety of the judges at risk. Shifting blame onto the judiciary is nothing more than a political maneuver for legislators to avoid responsibility and deflect on their inability to fulfill their constitutional duties.

Footnotes

[1] Timotija, F., & Tarinelli, R. (2025, April 09). House passes bill to limit nationwide injunctions. Retrieved from Roll Call: https://rollcall.com/2025/04/09/house-passes-bill-to-limit-nationwide-injunctions/

[2] Rule 65. Injunctions and Restraining Orders . (n.d.). Retrieved from Cornell Law School: https://www.law.cornell.edu/rules/frcp/rule_65

[3] Raack, David W. (1986) "A History of Injunctions in England Before 1700," Indiana Law Journal: Vol. 61: Iss. 4, Article 1

[4] Rowe, Jr., T. D. (1997). A Distant Mirror: The Bill of Peace in Early American Mass Torts and Its Implications for Modern Class Actions. Retrieved from Arizona Law Review: https://arizonalawreview.org/a-distant-mirror-the-bill-of-peace-in-early-american-mass-torts-and-its-implications-for-modern-class-actions/

[5] U.S. Const. art. III, § 2, https://constitution.congress.gov/browse/article-3/section-2/

[6] Fed. R. Civ. P. 2, https://www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure

[7] Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017), https://harvardlawreview.org/print/vol-131/multiple-chancellors-reforming-the-national-injunction/

[8] United States v. Bethlehem Steel Corp., 315 U.S. 289 (1942), https://supreme.justia.com/cases/federal/us/315/289/

[9] Perkins v. Lukens Steel Co., 310 U.S. 113 (1940), https://supreme.justia.com/cases/federal/us/310/113/

[10] Wirtz v. Baldor Electric Co., 337 F.2d 518 (D.C. Cir. 1964), https://case-law.vlex.com/vid/wirtz-v-baldor-electric-885589994

[11] 41 C.F.R. § 50-201.1 (2025), https://www.ecfr.gov/current/title-41/subtitle-B/chapter-50/part-50-201/section-50-201.1

[12] Griffin v. Illinois, 351 U.S. 12 (1956), https://supreme.justia.com/cases/federal/us/351/12/

[13] Gideon v. Wainwright, 372 U.S. 335 (1963), https://supreme.justia.com/cases/federal/us/372/335/

[14] Lassiter v. Department of Social Services, 452 U.S. 18 (1981), https://supreme.justia.com/cases/federal/us/452/18/

[15] Jonathan P. Kastellec, The Judicial Hierarchy: A Review Essay, Oxford Research Encyclopedia of Politics (2017), https://jkastellec.scholar.princeton.edu/publications/judicial-hierarchy-review-essay

[16] Lewis F. Powell, Jr., Stare Decisis And Judicial Restraint, 47 Wash. & Lee L. Rev. 281 (1990). Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol47/iss2/2

[17] Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205 (1985), https://core.ac.uk/download/pdf/72827243.pdf

[18] Wex, Certiorari, Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/certiorari

[19] Mila Sohoni, The Lost History of the “Universal” Injunction, 133 Harv. L. Rev. 920 (2020), https://harvardlawreview.org/print/vol-133/the-lost-history-of-the-universal-injunction/

[20] Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913), https://supreme.justia.com/cases/federal/us/229/288/

[21] S. Rep. No. 62‑955, at __ (1912) (Post Office Appropriation Bill), reprinted in Serial Set No. 122 (62d Cong., 2d Sess. 1912), available at govinfo.gov 

[22] Michael T. Morley, Disaggregating Nationwide Injunctions, 71 Ala. L. Rev. 1 (2019), Available at: https://ir.law.fsu.edu/articles/615

[23] Pierce v. Society of Sisters, 268 U.S. 510 (1925), https://supreme.justia.com/cases/federal/us/268/510/

[24] Ilan Wurman, The Origins of Substantive Due Process, 87 U. Chi. L. Rev. 815 (2020), https://lawreview.uchicago.edu/print-archive/origins-substantive-due-process

[25] 28 U.S.C. § 1651(a) (2024), https://www.law.cornell.edu/uscode/text/28/1651

[26] United States v. Mendoza, 464 U.S. 154 (1984), https://supreme.justia.com/cases/federal/us/464/154/

[27] Offensive collateral estoppel, in Collateral Estoppel, LII Legal Information Institute, https://www.law.cornell.edu/wex/offensive_collateral_estoppel

[28] 28 U.S.C. § 1 (2024), https://www.law.cornell.edu/uscode/text/28/1

[29] Fed. R. Civ. P. 23 (2024), https://www.law.cornell.edu/rules/frcp/rule_23

[30] O’Shea v. Littleton, 414 U.S. 488 (1974), https://supreme.justia.com/cases/federal/us/414/488/

[31] Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), https://supreme.justia.com/cases/federal/us/564/338/

[32] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), https://supreme.justia.com/cases/federal/us/347/483/

[33] Ms. L. v. U.S. Immigration & Customs Enforcement, No. 3:18‑cv‑00428, at 1–2 (S.D. Cal. June 26, 2018), https://law.justia.com/cases/federal/district‑courts/california/casdce/3:2018cv00428/564097/83/

[34] Ms. L. v. U.S. Immigration & Customs Enforcement, No. 3:18‑cv‑00428 (S.D. Cal. filed Feb. 26, 2018), https://clearinghouse.net/case/16620/

[35] California v. Health & Human Services, 351 F. Supp. 3d 1267 (N.D. Cal. Jan. 13, 2019), https://case‑law.vlex.com/vid/889070890

[36] California v. Azar, 911 F.3d 558 (9th Cir. 2018), https://law.justia.com/cases/federal/appellate-courts/ca9/18-15144/18-15144-2018-12-13.html

[37] Administrative Procedure Act, 5 U.S.C. §§ 551–559, https://www.law.cornell.edu/wex/administrative_procedure_act

[38]  Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), https://supreme.justia.com/cases/federal/us/555/7/

[39] California v. Health & Human Services, 351 F. Supp. 3d 1267 (N.D. Cal. Jan. 13, 2019), https://case‑law.vlex.com/vid/889070890

[40] Forum shopping, Wex Legal Dictionary (Cornell LII), https://www.law.cornell.edu/wex/forum_shopping

[41] 28 U.S.C. § 2284 (2024) (Three‑judge district court; when required; composition; procedure), https://www.law.cornell.edu/uscode/text/28/2284

[42] Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869), https://supreme.justia.com/cases/federal/us/74/506/

[43] Yakus v. United States, 321 U.S. 414 (1944), https://supreme.justia.com/cases/federal/us/321/414/