Notice & Comment

Congress Should Fix the Nationwide Injunction Problem with a Lottery

The Administrative Conference’s forum on nationwide injunctions certainly is well-timed. Just days ago, the Court published Justice Gorsuch’s concurring opinion in Department of Homeland Security v. New York, questioning the constitutionality of “nationwide injunctions” against the federal government.

“Whether framed as injunctions of ‘nationwide,’ universal,’ or ‘cosmic’ scope,” Gorsuch wrote, “these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case … Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III.”

Needless to say, controversy about the constitutional pedigree (or lack thereof) of such injunctions has inspired a wave of fascinating and thoughtful scholarship from Ron Cass, Mila Sohoni, Sam Bray, Amanda Frost, and all the others whom ACUS has collected on its reading list. It also attracted the Justice Department’s attention, as evidenced by the thoughtful remarks delivered in recent years by Attorney General William Barr and Assistant Attorney General Beth Williams.

And, as it happens, more than one Supreme Court justice: months before Justice Gorsuch issued his opinion in the DHS case, Justice Thomas questioned the constitutionality of “universal injunctions” in his Trump v. Hawaii concurrence, observing that even if Congress were to expressly authorize courts to grant such injunctions, the injunctions might still be null and void because of their lack of constitutional foundation.

Prudential Problems, Then and Now

Perhaps those constitutional debates will be resolved someday, maybe even soon. But until then, there remain basic questions of practicality and prudence arising from the increasingly prominent use of nationwide injunctions to block executive orders and administrative actions from going into effect. Justice Gorsuch emphasized these aspects of nationwide injunctions in his DHS opinion:

[T]he routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions. Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nation- wide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.

Justice Gorsuch could add one more major problem with the current practice of nationwide injunctions: they risk politicizing the courts. When political plaintiffs consistently seek nationwide injunctions from a small handful of district courts, precisely because those courts seem likely to grant them, the public comes to understand those courts and judges themselves as political actors, to the detriment of all courts and judges.

Accordingly, while nationwide injunctions raise interesting constitutional questions in and of themselves, the combination of nationwide injunctions with litigants’ bluntly partisan forum-shopping in hotly contested political disputes raises profound questions about the politicization of courts. In his seminal study of the young American republic, Alexis de Tocqueville observed (echoing Hamilton, forerunning Bickel) that the American people’s decision to “entrus[t] an immense political power to their courts” would be sustainable only so long as judges are not seen as asserting themselves in political disputes: “the American judge is led despite himself onto the terrain of politics,” Tocqueville wrote (with my emphasis added).

We should heed Tocqueville. In today’s national political disputes, the judges and district courts that reliably attract requests for nationwide injunctions raise more than a few doubts about the courts dispassionate detachment from politics.

As it happens, this isn’t the first time that litigation surrounding the executive branch raised these questions. In 1987, the Senate Judiciary Committee surveyed the messy state of multi district litigation against administrative actions (in Senate Report 100-263), and reported that “[m]any lawyers perceive that particular circuits will be more sympathetic to their client’s arguments. Thus, ‘races to the courthouse’ began to occur [after the 1950s], with each lawyer trying to file first in the circuit he or she feels will be receptive, or to avoid hostile circuit precedent.”

For that reason, Congress promptly legislated the framework for consolidating multiple challenges to one agency action into a single case in a single circuit. Three decades later, Congress ought to learn from its own past success. It should legislate a similar framework today, requiring that anyone seeking a nationwide injunction against agency action file their motions within a fixed number of days after the agency action, and then assigning the case—by random lottery—to any one of the federal district courts.

As it happens, the 1988 legislation was informed by ACUS’s own work on the subject. In Recommendation 80–5, ACUS criticized the chaos that engulfed the courts when multiple litigants filed lawsuits in different circuits, challenging a single agency action. “Many lawyers believe that one court of appeals is likely to be more receptive than another to their clients’ arguments in an agency review proceeding,” the Conference wrote. “The choice of the reviewing court has therefore assumed large importance in the review of some actions of some agencies.” It created a “sorry situation”:

The spectacle of the race to the courthouse is an unedifying one that tends to discredit the administrative and judicial processes and subject them to warranted ridicule. It will require congressional action to bring the final curtain down on the spectacle.

ACUS’s recommendation, which the Senate Judiciary Committee cited in its 1987 report, echoed the report authored by Thomas O. McGarity, which was also published in the University of Pennsylvania Law review:

The spectacle of a race to the courthouse may detract somewhat from the public image of the judicial system as an impartial and consistent dispenser of justice. Hence, blatant attempts to select forums are often condemned as “unseemly.”

McGarity suggested that forum-shopping’s threat to judicial legitimacy might have been mitigated by the fact that the public at large rarely followed such agency litigation; coverage was largely limited to “the specialized legal press.” In our own time, however, it’s the opposite: challenges to presidential or agency action, culminating in nationwide injunctions, have become a central part of partisan policy warfare, and when those cases result in nationwide injunctions the popular press dedicates significant coverage to them.

Hence we should worry, even more than McGarity did, about the damage that such forum-shopping can do to the judicial process itself: “The thought that lawyers sometimes base their choice of forums on their assessments of the pre-existing judicial biases and the sight of attorneys scrambling madly to implement their choices might tarnish the carefully cultivated image of the bar and subject its members to public ridicule,” he wrote. So it does!

A Basic Framework for a “Nationwide Injunction Modernization and Reform Act”

To the extent that Congress, perhaps with the help of the Justice Department, wants to craft legislation to solve these practical problems surrounding strategic forum-shopping for nationwide injunctions, it can largely adapt the basic framework established for multi-court challenges to agency action in 28 U.S.C. § 2112:

First, establish a window for plaintiffs to file motions seeking nationwide injunctions against a government action. Section 2112 sets a ten-day window for cases to be filed before a lottery assigns those cases to a single venue; it further provides that subsequent lawsuits should be routed into the court that was picked for the consolidated cases. Congress could use a similar approach for nationwide injunctions: set a ten-day initial window for parties to file petitions or motions for nationwide injunctions against the government, at which point the lottery would re-assign those cases to a single venue; and then set a mechanism for subsequent cases to be routed to the proper venue. Perhaps Congress should go one step further and prohibit courts from granting nationwide injunctions for motions filed after the ten-day window; in such cases, courts would have to limit their relief to the specific parties before them.

Second, to pick the venue, play the lottery. As with Section 2112, the United States Judicial Panel on Multidistrict Litigation would run a lottery to pick the district court or circuit court into which the motions for nationwide injunctions would be collectively decided. This will require a little more specific legislative language than Section 2112, because it could conceivably involve cases filed either in district courts or circuit courts, depending on the relevant subject-matter statutes.

Third, do not limit the possible “winning” venue to ones in which parties have filed. This is the major departure from Section 2112, and for good reason. Cases seeking nationwide injunctions are generally filed in courts seen as relatively sympathetic to the plaintiffs. Limiting the lottery to the courts in which cases are filed would not solve that problem: it would only create a lottery in which all the possible outcomes are seemingly plaintiff-friendly. (Imagine a lottery in which every ball is a winner!)

Instead, the Nationwide Injunctions lottery’s key feature would be to set a lottery among all federal district courts or circuit courts, making it much more difficult for plaintiffs to use forum-shopping to put thumbs on the scales of justice. Public interest groups challenging President Trump’s latest action might file in California and Hawaii, only to learn that their motions for nationwide injunctions will be decided by a federal judge in the Western District of Virginia. (Or perhaps, next year, public interest groups challenging a President Sanders or Warren will file in Texas and Florida, only to wind up in the Northern District of California.)

This feature might slightly inconvenience plaintiffs in terms of travel, the need to learn local rules of practice, or the need to file motions for admission pro hac vice in a new district court. But this seems a very small inconvenience to ask of those who are seeking to preemptively shut down federal policy nationwide.

This basic framework could be supplemented with other features. Perhaps it would be prudent for Congress to include a specific directive for courts of appeals to expedite any appeal of a district court’s grant of a nationwide injunction. Or perhaps, given the national stakes, Congress should create a right of direct fast-track appeal to the Supreme Court. (This latter idea might be pushing on an open door, given the Supreme Court’s increasingly clear interest in managing the chaotic and seemingly politicized lower courts.)

A “Nationwide Injunction Modernization and Reform Act” crafted along these lines might be the rare kind of regulatory reform that can win bipartisan support, at least if Congress defers the Act’s effective date for a few years, so that neither Republicans nor Democrats know whose ox would be gored first. In any event, it’s worth a try.

Adam J. White is a resident scholar at the American Enterprise Institute, and an assistant professor at George Mason University’s Antonin Scalia Law School, where he directs the C. Boyden Gray Center for the Study of the Administrative State.

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