Notice & Comment

New Legislation: Injunctive Authority Clarification Act of 2018

Yesterday the House Judiciary Committee marked up and reported out favorably legislation that would attempt to prohibit federal courts from issuing certain types of nationwide injunctions:

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.

Nationwide injunctions are a hot topic in administrative law and regulatory practice. As I quipped in my remarks at the UCLA Law Review‘s Safeguards of Our Constitutional Republic Symposium earlier this year, this is one area of administrative law where, since the change in presidential administration, Democrats have found the nationwide injunction great again whereas Republicans see this remedial tool as not so great anymore.

In case you want to read more on the issue, check out Jack Beermann’s recent Jotwell review of two of the major law review articles on the subject. Here’s a snippet from that review:

I feel a bit like Gilligan in one of my favorite episodes of Gilligan’s island. The Professor and the Skipper are having an argument over some issue vital to the castaway’s prospects of being rescued from the island. Gilligan is standing in the middle agreeing with everything both parties to the argument say, and finally the two disputants become fed up with Gilligan’s endorsement of diametrically opposing views and they turn on him.  In this Jot, I praise two articles that take conflicting views on an issue vital to the future of administrative law, namely, when should federal courts, confronted with unconstitutional or otherwise illegal Executive Branch action, issue nationwide injunctions: Sam Bray’s Multiple Chancellors: Reforming the National Injunction, and Amanda Frost’s In Defense of Nationwide Injunctions. Hopefully, the reader won’t turn on me.

Bray’s article, which was reviewed by Professor Kevin Walsh in a pre-publication Jot in the Courts Law section of Jotwell, is deeply skeptical of the nationwide injunction, arguing that federal injunctions should be no broader in scope than necessary to protect the plaintiff from the injury underlying the plaintiff’s standing to seek the injunction in the first place. By contrast, Frost’s article contends that federal courts should be willing to grant nationwide relief not only when necessary to provide plaintiffs with complete relief but also when necessary to protect numerous similarly situated parties who cannot quickly bring their claims to federal court.

Definitely check our Beermann’s full Jotwell review here, as well as the articles being review (Bray’s here and Frost’s here). Professor Beermann has organized a terrific panel on the subject for the annual ABA Administrative Law Conference in DC on November 1-2.


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

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