Concepts, not Nomenclature: Universal Injunctions, Declaratory Judgments, Opinions, and Precedent

Introduction The battle lines are drawn on the permissibility and validity of so-called “nationwide” injunctions—injunctions in federal constitutional litigation purporting to halt government enforcement of a challenged law[2] against all possible targets of that law and to protect all rights holders against enforcement, not only the parties to the action. Courts are divided—some granting,[3] with attempts at justification,[4] others rejecting, in practice if not in concept.[5] Justices Thomas and Gorsuch have weighed in against them.[6] Scholars supporting their validity[7] and scholars rejecting them as impermissible[8] Continue reading →

The Constitutionality of Nationwide Injunctions

Opponents of nationwide injunctions have advanced cogent reasons why courts should be skeptical of this sweeping remedy, but one of the arguments is a red herring: the constitutional objection. This Essay focuses on the narrow question of whether the Article III judicial power prohibits nationwide injunctions. It doesn’t. This Essay confronts and dispels the two most plausible arguments that nationwide injunctions run afoul of Article III. First, it shows that standing jurisprudence does not actually speak to the scope-of-remedy questions that nationwide injunctions present. Second, Continue reading →

Preserving the Nationwide National Government Injunction to Stop Illegal Executive Branch Activity

And some things that should not have been forgotten were lost. History became legend. Legend became myth. –Lord of the Rings[2] Introduction When someone successfully sues a federal executive branch official for violating federal law, the federal court’s remedy, which can be a nationwide national government injunction, thrusts the court into controversial territory. Critics maintain that courts grant too many broad nationwide injunctions against the executive branch. They state a myriad of reasons to oppose nationwide injunctions: The federal court, they write, lacks authority, power, Continue reading →

Toward Establishing a Pre-Extinction Definition of “Nationwide Injunctions”

Preface Then it dawned upon me with a certain suddenness that I was different from the others . . . . –W.E.B. DuBois[2] I start this piece with a personal narrative because I grew up in a family of storytellers. Even the story behind my name is part of who I am, and how I think, as a legal scholar. My parents chose my first name as a mixture of an homage to the cars that my mechanic dad worked on, loves, and has sometimes owned, and Continue reading →

National Injunctions: What Does the Future Hold?

This year the 27th Annual Ira C. Rothgerber Conference brought scholars and lawyers from all over the country to discuss one of the most salient legal issues today—the propriety of national injunctions. Federal district court judges are increasingly halting the executive branch from enforcing its signature policies nationwide—fashioning remedies that go beyond the parties and the court’s usual geographic purview. National injunctions have touched the lives of many of us. They run the gamut, enjoining policies ranging from environmental protection to immigration policies to civil Continue reading →

A Conversation with Associate Justice Elana Kagan

University of Colorado Law Review Volume 91, Issue 3 2020 A Conversation with Associate Justice Elena Kagan Justice Elena Kagan[1] Annual John Paul Stevens Lecture University of Colorado Law School October 22, 2019 S. James Anaya: Good evening, everybody. For those of you who don’t know me, my name is Jim Anaya. I am the Dean of the University of Colorado Law School. I’d like to welcome all of you to the Eighth Annual Stevens Lecture, featuring a discussion with United States Supreme Court Justice Continue reading →

When Congress Requires Nationwide Injunctions

A curious provision of the Immigration and Nationality Act (INA) precludes class actions challenging expedited removal, the system of fast-track deportations for individuals who have recently entered the country. The same provision authorizes nationwide relief in non-class actions, but it requires that plaintiffs in such non-class systemic challenges file their claims in the federal District Court for the District of Columbia and that they do so within sixty days of the challenged change to the system. This framework should matter to scholars of nationwide injunctions Continue reading →

Seeing Beyond Courts: The Political Context of the Nationwide Injunction

Introduction “Judge Blocks Trump . . . .”[2] This headline became a media staple when reporting on lawsuits challenging various Trump Administration policies—many of which sought injunctive relief on a nationwide scale. Two United States Attorneys General have challenged judges’ authority to issue these nationwide injunctions and called for “our judiciary to re-examine a practice that embitters the political life of the nation, flouts constitutional principles, and stultifies sound judicial administration.”[3] In the popular and political mind, the nationwide injunction begins and ends in the courts. To jurists Continue reading →