With the legality and wisdom of “nationwide” injunctions at issue in the courts and Congress, it is time for the states to view the problem through the lens of federalism. Using this lens, the states should oppose all use of nationwide injunctions and support their limitation by the Supreme Court and Congress because the exercise of such broad federal equitable power encourages district judges to employ similarly broad injunctive power against the states. 

1.  District courts and state policies.  District courts often enjoin (1) state statutes and regulations and (2) the operation of state institutions and programs.  A judge who has recently issued a nationwide injunction against the federal executive is not likely to defer to the exercise of state executive or legislative power on grounds of abstention, comity, or other federalism-based limits on the exercise of federal equitable power.  

Abstention is a form of judicial self-abnegation.  Abstention declines to exercise subject matter jurisdiction expressly conferred. Similarly, in institutional cases, when a federal court limits its orders to remedying a specific constitutional harm, it performs an act of judicial humility.  In contrast, there is little humility reflected in a nationwide injunction. In seeking nationwide injunctions, the states have therefore risked, if not promoted, the inflation of the equitable powers of the federal district courts, tempting them to play an out-sized role of judicial review and control of the political branches, federal and state.

2.   The local nature of “district” courts.  A nationwide role for district court judges conflicts with the local nature of their selection and expertise.  They are named “district” courts for a reason. The vestiges of the Senate “blue slip” procedure reflect local influence over their selection. Similarly, the Supreme Court has recognized the local expertise of the district courts in matters of state law within their districts. The leading decision Bowen v. Massachusetts, which has been invoked in the current debate over the proper forum (U.S. District Court or the Court of Federal Claims (CFC)) for certain claims against the United States, held that the district court was the proper forum for challenging Medicaid “disallowances” by HHS in part because “the nature of the controversies that give rise to disallowance decisions typically involve state governmental activities that a district court would be in a better position to understand and evaluate than a single tribunal headquartered in Washington.” Id. at 907-908 (citing similar deference to regional courts of appeals on matters of state law). States that seek nationwide injunctions implicitly cast district courts as primarily “nationwide” in scope and thereby undermine a rationale for their future individual suits against the United States in their own districts, rather than in the CFC in the District of Columbia.

3.  Risk to state standing.  Pressing for nationwide injunctions risks a cutback on state standing.  The Supreme Court may be poised to limit the authority of the states to sue the federal government.  If the Court does not restrict nationwide injunctions, it may limit state standing, starting with the standing found in Massachusetts v. EPA.

4.   Federalism and three-judge courts.  States of all stripes (red or blue) should therefore support current judicial and legislative efforts (1) limiting the benefit of federal injunctions to the plaintiffs in the case or to the federal district with jurisdiction over the complaint, or (2) limiting the power to enter nationwide injunctions to some form of a three-judge court. Regarding three-judge courts, the establishment of such courts for challenges to state legislation in 1908 (repealed in 1976) had roots in federalism, as a response by Congress to the decision in Ex Parte Young.  As explained by Professor Michael E. Solimine, critics of Ex Parte Young charged that it would confer too much power on a single federal judge, who could nullify the will of thousands of residents of the district who had implicitly endorsed the challenged state legislation. The 1908 act also conferred a right of direct appeal to the Supreme Court from the three-judge courts. See, for example, Feeney v. Commonwealth of Mass., 451 F. Supp. 143 (D. Mass. 1978) (three-judge court), rev’d, Personnel Administrator v. Feeney, 442 U.S. 256 (1979)).  Proposals to establish three-judge courts for requests for nationwide injunctions against the United States recall this history and may prompt revival of the same or similar protection of state policies from federal equitable power, a worthy goal for all states. 

5.  Conclusion.  The states’ recent embrace of nationwide injunctions is short-sighted. In their effort to diminish the federal executive, they have inflated the federal judiciary.  In their future defense of state policies against private suits, the states may come to regret that result. 

Thomas A. Barnico is an adjunct professor at Boston College Law School.  He was counsel for Massachusetts in Bowen v. Massachusetts.