Notice & Comment

End the Nationwide Injunction

Sam Bray and I have submitted an amicus brief urging the Supreme Court to put a decisive end to the new but all-too-common practice of entering nationwide injunctions in cases challenging government laws or rules.

Sam and I come from different points on the political spectrum. Both of us believe, however, that nationwide injunctions are inconsistent with the judiciary’s role in a democracy and can seriously impair the federal government’s ability to do its work.

Our brief comes on the heels of testimony that each of us gave before the Senate Judiciary Committee two weeks ago. As I explained to the Committee, I don’t see this as a partisan issue: nationwide injunctions are equal opportunity offenders, thwarting Republican and Democratic initiatives alike. In the current political moment, however, I realize that my views are pretty unpopular among left-leaning lawyers who have embraced nationwide injunctions as a tool to thwart ugly Trump administration initiatives.

I get the concern. But I don’t think the proper rule for the federal courts should depend on whether you agree or disagree with the politics of the sitting president. As I see it, the long-run systemic harms of nationwide injunctions will come to eclipse any fleeting victories.

The Supreme Court has agreed to consider the question of whether to curtail nationwide injunctions in its upcoming case involving the Affordable Care Act’s contraception mandate. Though I’ve written extensively about the case, Sam and I take no position on the merits in our amicus brief. I’ll say here, however, that the legal fragility of the Trump administration’s rule extending a “moral exemption” to objecting employers (as opposed to the rule governing religious exemptions, which presents more complicated questions) means that the Court may well reach the remedial issue.

Writing the brief would not have been possible without the help of Donald Burke and Zachary Ferguson at Robbins Russell. That’s not just the usual “thank you” encomium—the brief is substantially better because of them.


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