What are “nationwide injunctions”? When and why are they issued by federal courts? Have they been invoked more frequently in recent years, and, if so, how is that affecting how laws or executive orders are implemented nationwide? And is the term “nationwide injunctions” itself actually a misnomer? Two experts on these broad kinds of injunctions, Amanda Frost of American University’s Washington College of Law and Howard Wasserman of Florida International University, answer those questions. They also detail how nationwide injunctions have been used to block policies of both President Obama and President Trump – including immigration policies like DAPA and DACA under President Obama, and the so-called “travel ban” and third country asylum rule under President Trump – as well as civil rights policies like President Obama’s protections for transgender students using bathrooms that match their identities and President Trump’s ban on people with gender dysphoria serving in the military. Jeffrey Rosen hosts.
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PARTICIPANTS
Amanda Frost is Professor of Law at American University’s Washington College of Law. She writes the “academic round-up” column for SCOTUSBlog, and is the author of the New York Law Review article “In Defense of Nationwide Injunctions”. Her book Unmaking Americans: A History of Citizenship Stripping in the United States will be published in 2020. And, Professor Frost is a member of the National Constitution Center’s Coalition of Freedom Advisory Board.
Howard Wasserman is Professor of Law and Associate Dean for Research and Faculty Development at Florida International University Law School. He is a frequent contributor to SCOTUSBlog, and author of the Lewis & Clark Law Review article “Nationwide Injunctions are Really Universal Injunctions and They are Never Appropriate.” His books include Understanding Civil Rights Litigation (2018).
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
Additional Resources
- Amanda Frost, In Defense of Nationwide Injunctions, 93 New York U. L. Rev. 101 (2018)
- Howard Wasserman, Nationwide Injunctions Are Really “Universal” Injunctions and They Are Never Appropriate: On the Scope of Injunctions in Constitutional Litigation, 22 Lewis & Clark L. Rev. 335 (2018)
This episode was engineered by David Stotz and produced by Jackie McDermott. Research was provided by Lana Ulrich, Jackie McDermott, and Robert Black.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a non-partisan non-profit, chartered by Congress to increase awareness and understanding of the constitution among the American people. Today we explore the question of nationwide injunctions. What are they? When and why are they issued? And why have they been involved in so many controversial cases recently? From the recent challenges, to the third country asylum rule, the travel ban case, can the president build a wall, and more.
Joining us to debate the constitutionality of this unfamiliar but crucially important judicial practice are two of America's leading scholars on the subject. Amanda Frost is professor of law at American University's Washing College of Law. She writes the academic roundup column for SCOTUS blog and is the author of the New York Law Review article, In Defense of Nationwide Injunctions. Her book, Unmaking Americans, a history of citizenship stripping in the United States, will be published in 2020. And Professor Frost is a member of the National Constitution Center's Coalition of Freedom Advisory Board. Amanda, it's great to have you on the show.
Amanda Frost: [00:01:15] Thank you for having me.
Rosen: [00:01:17] And Howard Wasserman is professor of law and associate dean for research and faculty development at Florida International University law school. He's a frequent contributor to SCOTUS blog and author of The Lewis and Clark Law Review article, Nationwide Injunctions Are Really Universal Injunctions, and They Are Never Appropriate. His books include Understanding Civil Rights Litigation. Howard, thank you so much for joining me.
Howard Wasserman: [00:01:40] Thank you for having me.
Rosen: [00:01:42] Well thanks to both of you for making your positions so wonderfully clear in the titles of your law review articles. [laughs] And we're up for a great discussion, and much looking forward to the conversation. A-Amanda, let's begin with you. What are nationwide injunctions, and have they been more issued frequently than historically?
Frost: [00:02:01] Yes, and thank you for addressing what I think is an important topic, and one that will only gain more attention going forward. Nationwide injunctions, it's, it's not a great term. In fact, I agree with Howard on this. Because what they are, it's when a court says to a defendant, "I've decided what you're doing to the plaintiff is illegal, and you must stop doing that to the plaintiff and to everyone else in the same situation as the plaintiff." So really, I think the better name for them would be an absent party injunction, or Howard prefers the term universal injunction.
The question isn't whether the injunction applies nationwide, but who it applies to. Does it apply to people beyond the plaintiff? The second part of your question was are there now today more nationwide injunctions than in the past. There are scholars that have looked very closely into this history, and they, uh, disagree with each other. I do think it's clear that nationwide injunctions are increasing at least in part in recent years, but I'd like to point out, that might be in response to the fact that now we have presidents who are issuing unilaterally policies that apply nationwide in ways that they didn't use to do in the past. So it may well be in response to that.
Rosen: [00:03:07] Many thanks for that, uh, succinct and helpful answer. Howard, Amanda says that, uh, the crucial issue is not geographically, how broadly the injunctions apply, but to whom they apply. Should they apply to non-parties, and she says that there's a dispute about how much they've increased. I will note that the Wall Street Journal editorial board quotes the justice department is reporting that as of May, federal district courts have issued 37 nationwide injunctions against executive actions by the Trump administration. They count up to 39 and compare this to two such injunctions in the first two years of the Obama administration. Both of which were vacated by the ninth circuit.
Um, so your, uh, answer to the question of what are nationwide injunctions, and are they in fact increasing in recent years?
Wasserman: [00:03:50] So, uh, uh, I-I share Amanda's definition of it. Uh, I think that's, that's exactly right, that it, it is about the who the injun-, the who of the injunction and who the injunction proports to protect. Uh, and I think it's unfortunate that we keep talking about, we keep using the word nationwide, and keep talking about geography, because that really confuses the issue. Uh, injunctions should be nationwide in the sense that whoever is protected by the injunction should be protected everywhere he goes.
So if I had an in-, the government is enjoined from enforcing a prohibition on flag burning against me, that prohibition follows wherever in the United States I go. So it should be nationwide in that I am protected everywhere. The problem is that I am the only, or should be that I am the only one who ought to be protected by the injunction. Uh, in addition to the reason a-as for why they are happening more frequently, I think in addition to the reason that Amanda gives, that it's a lot of challenges to, uh, administrative regulations and presidential executive office, off-, uh, orders, whether than legislation.
There's also the fact that a lot of these actions are being brought by states. A lot of the law suits are being brought by states. Uh, and by... Uh, immigration advocacy groups and asylum, uh, rights organizations on behalf of their members. So it's law suits being brought, but on behalf of a, of a huge number of people. And so it's sort of easy for the court to simply say, "Well, the state is representing everybody's... Texas is representing everybody in the state of Texas. So everybody should therefore be bound by the injunction."
Rosen: [00:05:50] Uh, thank you, uh, very much for that, and for, uh, your suggestion that universal injunctions is a better phrase than, uh, nationwide injunctions. All right, in your articles, which really helpfully set up the leading cases for and against the use of nationwide injunctions. Uh, uh, Amanda, your piece in defense of nationwide injunctions, you argue that nationwide injunctions are not unconstitutional and their benefits outweigh their costs. You say they're consistent with historic equitable practice, and it's, uh, although they may have some downsides and be issued too frequently, you identify three specific cases where you think they're especially appropriate. Um, tell us about that defense in greater detail.
Frost: [00:06:34] Yes, a-a-and as you, uh, nicely put it, my point is that, um, nationwide injunctions are both constitutional and at times appropriate. And I want to stress the, the point I was making there. At times they're not appropriate, and, and there's three specific kinds of cases in which I think they are useful and appropriate. First is when they are the only method of providing a plaintiff with complete relief, and I'll give you a concrete example.
Imagine an African American child, parents of the child, file a lawsuit against a school district that excludes all African American children, are doing that violates the constitution, as we know it does. Then imagine the child wins the case, right? And, and it turns out, yes, it's unconstitutional to exclude this child based on his race. It's no remedy for that child to be allowed to be the only African American child to attend the school. To give that child the complete relief that it needs to attend a desegregated school, it must be that all African American children in the school district are allowed to attend the school. Not just the single child. That is where I think a nationwide injunctions is appropriate. Because broader than the party who brought the case, additional people need to be included in the relief in order for the plaintiff to get relief.
A second example of a type of case in which I think nationwide injunctions are appropriate, um, is when irreparable harm would be done to hundreds of thousands, or maybe millions of people, if they weren't included. And a good example of this would be President Trump's travel ban. It went into affect immediately, barring people from, uh, seven countries initially, as well as refugees, from entering the United States. People were on route, they were flying. They had immediate plans to come to the United States. They had very pressing medical needs or family, uh, needs to be in the United States. And they were all unilaterally barred by an executive order. A few individuals had the wherewithal the get a lawyer and file suit. If the relief had applied only to them, then everyone else would remain harmed for months or up to a year it could take for the supreme court to address the issue. A nationwide injunction a way to immediately relieve their, uh, uh, legal situation and provide them with relief.
And a third example, just quickly, is when it would be administratively very difficult to provide narrow relief. And a good example of this would be a challenge, for example, to an environmental protection rule defining w-what water can be regulated by the environmental protection agency. Since water travels freely between the states of the United States, it would be very difficult to limit relief to just one geographic location. And courts tend to issue nationwide injunctions in, in such cases.
Rosen: [00:09:05] Howard, in your article, nationwide injunctions are really universal injunctions, and they are never appropriate on a scope of injunctions in constitutional litigation. You both argue that, uh, universal injunctions is a better name than nationwide injunctions, and you lay out some of the constitutional arguments against nationwide injunctions. Arguments that Justice Thomas has flagged in the travel ban case, where he suggested the nationwide injunctions might be unconstitutional and the court might have to visit that question. Tell us about the constitutional and other arguments against nationwide injunctions.
Wasserman: [00:09:37] So, the touchstone is that, uh, o-o-or the foundation is that constitutional judicial review in the United States occurs in the course of a court adjudicating a particular dispute between, uh, particular parties. So the judicial process that applies in adjudicating that matter, tha-tha-that case matters. And so litigation is generally limited to, t-to adjudicating the rights of particular parties to the action. The constitutional violation is not the existence of a law or regulation. It is the attempted enforcement of that law o-or regulation against a particular person, or a particular persons.
Uh, the law of standing, which determines who is able to go into court to argue and to raise issues. Uh, requires a personal injury for the plaintiff, that, that person is facing actual or imminent, uh, enforcement of the law or regulation against him. And we generally don't allow someone to adjudicate the rights of somebody else. And so it should follow, that if the litigation is limited to the rights of the parties, then the remedies should be limited to, uh, remedying the injured party and resolving that dispute between the parties. So stop the enforcement of that law or regulation against the rights holder. Stop this attempted enforcement. Stop future attempted enforcement against this person, and that will remedy that person's constitutional violations. It will give that person a complete, uh, complete relief, regardless of what the government does to anybody else.
Now, it is possible to expand the scope of the remedy by expanding the scope of litigation. And there are procedures in place to do that, and to address, uh, the cases that Amanda raised. So one plaintiff can go into court, uh, and bring a class action under rule 23 B-2 of the federal rules of civil procedure, and can get an injunction that protects not only him, but all others similarly situated. And in fact, 23 B-2 was enacted in 1966 to address the first example that Amanda gave of a school, of, of a court saying to one African American plaintiff, "Okay, you can go to this school, but we're not going to integrate the school." And the class action device makes it possible for one African American plaintiff to sue on behalf of everybody in that community and get an order entitling all of them to atten-, to attend the school.
Um, there also are situations like the example of the quality of the warder, of the water [laughs]... Where, um, the remedy is indivisible. You can't, uh, you can't separate it out. Uh, and so protecting the plaintiff will incidentally protect... Excuse me. Incidentally protect everybody else. But that's very different than giving everybody in the universe the same right as the plaintiff to enforce and be protected by the injunction.
Rosen: [00:13:15] Thanks for flagging this debate about whether or not, uh, o-one set of plaintiffs should be able to enforce another set of plaintiffs rights. Let's bring this, uh, down to earth by talking about the most recent controversial cases, in which nationwide injunctions have been, uh, at the center. And, uh, we begin with the third country asylum case on August 16th. The ninth circuit ordered a partial stay at a preliminary nationwide injunction granted in July. Uh, it involved the third countried asylum rule, which is issued by the justice department and the department of homeland security. Which bars eligibility for asylum, for aliens who attempt to enter the US from across the southern border in Mexico, that didn't apply for protection from persecution or torture in at least one other third country. And there are some exceptions, uh, to that rule.
Uh, Amanda, tell us about the basis for Judge Tigar's decision to issue a preliminary injunction against this third party asylum rule in the case of East Bay Sanctuary Convent versus Trump. And tell us about whether you think that a nationwide injunction is appropriate in this case.
Frost: [00:14:28] Yes, a-and this is an interesting example of what we've been talking about. Um, so the challenge, uh, brought to this third, uh, country asylum rule, was that it violated the administrative procedures act. And I won't get into the details and the merits, since they're not relevant to our discussion. But then judge Tigar said, "Okay, I find that the rule being challenged is actually indefensible or likely indefensible. And therefore, I'm going to issue a preliminary junction. And then the next thing he said was, "And it will be nationwide." Meaning it won't apply just to the plaintiffs who are arguing that they should not have to be subjected to this new asylum rule that they argued violated the law. But absolutely everybody else who would ever, could ever get the benefit of that asylum rule, or, or be, or be, uh, suffer the detriment of that asylum change, uh, would also get the relief from this order.
So then with the appeal to the ninth circuit, and a split panel of the ninth circuit... So two judges to one, held that indeed the preliminary injunction itself was a appropriate, but the scope of it was not. And that is, the court said, "We want the in-, the preliminary injunction to apply only in the ninth circuit and not nationwide." What I really liked was the reasoning of the court. I agreed with the court. The court said, not that nationwide injunctions are unconstitutional, quite the contrary. It's decision made clear, it thinks they are constitutional and permissible in certain cases.
What it said was Judge Tigar has not justified the scope of this injunction. Nationwide injunctions should not be the norm or the default position. He needs to explain and justify it, and in fact it gave the parties an opportunity to go back before that court, and argue about and justify the scope of the injunction. Which is I b-, I believe what they are doing right now.
Rosen: [00:16:07] Howard, do you believe that a nationwide injunction was appropriate in this third party asylum case or not?
Wasserman: [00:16:14] Uh, I don't, and I'll, I'll s-, say that, that this case exemplifies the confusion that everybody's having about nomenclature and what exactly we're dealing with here. The plaintiffs in this case were four asylum rights organizations that do most of their work in California, and I think Arizona, but also through, throughout the ninth circuit. And th-, what the district judge intended to do, I think with this injunction, was saying that this asylum regulation can not be applied to anybody. The ninth circuit then turned around and said, "No, no, no. The injunction, uh, doesn't apply outside the ninth circuit." Well, that left us with the best, with, excuse me, with the worst of all possible worlds. Because it's not giving enough protection to the four plaintiff organizations, and it's overprotecting everybody else.
Because the injunction is still in place as to those four organizations, but not outside of the ninth circuit. So to the extent that they are representing asylum seekers, in say, Texas, which is not in the ninth circuit, or New Mexico, which is not in the ninth circuit. They don't enjoy the protection of that injunction. But an injunction should protect the plaintiff everywhere he goes. Otherwise you require one plaintiff to go to courts in every single circuit to get a new injunction.
But they appa-, the ninth circuit also apparently left in place the injunction to the extent it protected beyond these four, uh, organizations. Which it shouldn't do, because again, there's, there's no reason for it. These four organizations are suing on their behalf and on behalf of the asylum seekers that they represent. And there's no reason that, th-they get complete relief as long as they and the asylum seekers they represent are protected by the injunction. And their relief isn't rendered incomplete by what happens to anybody else.
So this just shows one, the problem we're having is we're not keeping straight what to call these or what exactly we're talking about. And then the court left in place an injunction that was, I think, un-duly overbrought.
Rosen: [00:18:51] Well let's now turn to the most recent nationwide injunction case the supreme court has considered, and that's Trump against Sierra Club. Uh, the supreme court said, in July, that the Trump administration can reallocate $2.5 billion in the congress earmark for the pentagon to build a border wall and voted five to four to overturn a nationwide injunction issued by Judge Gillian, uh, in the ninth circuit.
Amanda, tell us about Judge Gillian's order and what the supreme court's decision to over turn it was based on.
Frost: [00:19:28] Well, s-so I, here's where I'd like to point out, the supreme court never needs at nationwide injunction, because its decisions operate nationwide automatically. It's a court that is the final, provides the final answer on legal questions for the nation. So it's really not the right court to ever address this question of nationwide injunctions. It might well choose to do so, as justice Thomas suggested in the concurrence. If it feels the lower courts are issuing them too freely. But I will point out that the, the supreme court itself issued a nationwide injunction quite recently in the travel ban litigation, just a couple years ago. Where it, it actually narrowed a ninth circuit nationwide injunction, but continued to put in place, keep in place, an injunction that applied beyond the parties to the case.
So to the, again, I'm responding to this argument that nationwide injunctions are unconstitutional. The supreme court apparently doesn't think so. Um, and, uh, in the past has permitted, and itself issued, nationwide injunctions. When it disagrees on the merits, as it did on Sierra Club case, that's my understanding. Then of course i-it rejects the position the lower courts took all together, and there's no reason to keep in place a nationwide injunction if its rejected the lower courts ruling on the merits.
Rosen: [00:20:40] Howard, help us understand, uh, Justice Briar's decision to join the majority in the Trump and Sierra case. He would have allowed construction contracts to be led, but otherwise, um, uh, disagreed with the majority. Um, and, uh, what is the significance of the court's decision to lift the nationwide injunction for its future adjudication of the case on the merit. So that whether or not the president has the power to build a wall.
Wasserman: [00:21:06] Uh, to take the justice Briar question, uh, first. I think he was just looking for some sort, to strike some sort of a compromise, uh, among the court. That, the, you know, one of the, the things that courts do in issuing any injunction is to try to balance the equities and to consider the harm to the government if it didn't get the injunction. Uh, or excuse me, if the injunction is issued and the harm to the plaintiffs. If, if the injunction is not issued. And I think what, what Briar was attempting to do was strike the balance that, if the government can still move on the contracts, uh, it's not going to be too harmed. Uh, and the plaintiffs are protected as long as the government can start building a wall, because it really doesn't hurt the plaintiffs if the government is able to go ahead, and, and, and try to enter into these contracts.
So I think the goal was to try to strike that balance of the, of the harms, of the harms and benefits to each party. As for what the courts thinking, I-I think in a case like this, it drops a very strong hint that five justices, uh, believe that, uh, the president can do what he's planning on doing with diverting, uh, funds to build a wall. And so they saw no reason to interfere with it, even though a converse decision, w-, y-you know, that stops the wall in the middle of being built. Uh, is going to potentially wreak havoc. But I think it's a, it's a, more than in a lot of these cases, it's a pretty strong hint on where the court is, uh, on where the court is, is, is leaning on the merits.
And if I can just add very quickly, this is an-another good example of a case where it's unnecessary to make the injunction universal, because the harm and the remedy are both indivisible. If the, if the plaintiff is right, that building the wall is, is unlawful. Than the remedy, even though the injunction only protects the plaintiff formally, everybody else is going to gain the benefit of that injunction. Because the government can't build the wall only as to every body else, but not as the plaintiff. So in some ways, by throwing this term around, nationwide or universal, we're confusing, an-an-and adding another source of controversy that's really unnecessary. Call this an injunction, and if the government can't build a wall, it can't build a wall. And that's really the end of the, of the dispute.
Rosen: [00:24:04] Amanda, as, as Howard's answer suggests, uh, an injunction can have the affect of forcing the supreme court to show its hand earlier than it might otherwise do. Uh, and without full ventilation of the issues below. On the other hand, uh, we have the most famous example of a nationwide injunction being lifted recently, and that's the travel ban case, where there was lots of litigation below. The court waited to jump in and finally l-l-lifted the injunction, and in the five to four decision, upheld the third version of the travel ban.
Justice Thomas wrote a concurrence on the travel ban case that we've already talked about. Um, it wasn't joined by any other justice. He said universal injunction are legally and historically dubious. If federal courts continue to issue them, this court is duty bound to adjudicate their authority to do so. These injunctions are beginning to take a toll on the federal court system preventing legal questions from percolating through the federal courts, encouraging forum shopping and making every case a national emergency for the courts and the executive branch.
Tell us about the travel ban case, what you think about the courts decision to lift the nationwide injunction, and what you think of Justice Thomas' concurrence.
Frost: [00:25:15] Yeah, so the travel ban case, as your listeners ill remember, when he got into office within the first week, President Trump issued an executive order banning travel into the United States by, uh, non citizens coming from various countries and also some refugees. And so there was an immediate nationwide injunction put in place, and there's a couple of important by district courts, by, a, a single judge at a lower court. And I want to use that to give an example of how this works, um, i-in a way that I think undermines, uh, what, uh, Justice Thomas was worried about. So the first thing that happened was yes, we got very quickly, a nationwide injunction by a single district court judge. And some people were very concerned and said, "Oh no, one judge can put a stop to a federal policy issued by the president."
But what immediately happens, is there's an appeal of that injunction up to a three judge circuit court, that could of course immediately reverse very quickly, a district court that it thought got the issue wrong. You could also get an [onbonk] review of all the judges on that circuit immediately, and also can then go right up to the supreme court to review just the question of whether the injunction is appropriate. And indeed, the travel ban injunction went up to the supreme court. The supreme court narrowed it, although kept in place aspects of it that went beyond the parties to the case. So as I said, it's some evidence the supreme court thought nationwide injunctions were constitutional. Because it itself issued such an injunction.
Another important point to make about the travel ban case is it did not stop litigation on the issue. In addition to the case being heard in Hawaii, which is in the ninth circuit and being decided by the ninth circuit. It was also heard in Maryland and reviewed by the fourth circuit. We had at least two different courts. There was a few others involved as well, issuing opinions, reaching the same conclusion at the end but with different rationales. So helping the supreme court by giving different perspectives on the issue, and then of course, we had a final decision by the US supreme court. Which did not address, the majority did not address the nationwide injunction because it actually upheld the travel ban.
So there was no need for it to address any injunction, because on the merits it decided the travel ban was legal. So I think that's a good example of how nationwide injunctions do not need to either lead to a race to the US supreme court. They do not create a situation in which one judge controls policy for the country. And they allow the issue to percolate among different courts, so I don't see a problem.
Rosen: [00:27:27] Howard, your thoughts on the travel [inaudible] case in Justice Thomas' concurrence, and in particular, his three objections that they prevent legal questions from percolating. They encourage forum shopping, and they make every case a national emergency. Amanda says, well the Maryland court could have issued a different ruling. Uh, if it had done so, would the injunction on the ban remain in place for the entire country, and then the court would have had the jump in? And more broadly, what do you think of Justice Thomas' three objections, and do you imagine there were more than one vote on those supreme court strike down nationwide injunctions as unconstitutional?
Wasserman: [00:28:00] Well, I'll take the f-, the last part first. Yes, I do think there's more than one vote. I'm, I'm fairly confident that Justice Cavanaugh, if pushed, uh, uh, would, would agree with Thomas o-on it. He was the one person to ask a question during the, the Hawaii arguments. Uh, that, wh-where he, in his very sardonic way, referred to them as cosmic injunctions. Uh, and I think that was tipping his hand as to, as to what he thinks.
So I, I think Amanda is right that percolation is still going on, multiple litigation is still being brought, uh, in a number of different courts by a number of different, different people. But what that tells me is that nobody is taking the universality of anybody else's, of any other courts injunctions seriously. So the district of Maryland was not, and the fourth circuit weren't taking the universal nature of the Hawaii and ninth circuit injunctions, all that seriously. And they essentially rendered a judgment that had it come out a different way, wouldn't of actually had any effect. Because the, Hawaii ninth circuit injunction was still in place.
So we're still seeing multiple litigation. We're st-still seeing percolation in a lot of different courts, but in a way that if anybody stopped and thought about it, is, is wholly unnecessary. And so there was a, a recent case, or, or there's a case that's before the ninth circuit now, involving a challenge to the, uh, attempt to repeal the contraception mandate in the affordable care act. And there were two cases brought. One in the eastern district of Pennsylvania, in Philadelphia, which is-, which issued a universal injunction, uh, barring enforcement. And then, uh, district court in the northern district of California, uh, also declared it invalid, issued an injunction, but the injunction was particularized to the parties.
The government appealed the, the California injunction to the ninth circuit, and the ninth circuit asked the parties to brief whether or not it can or should bother adjudicating the California case. Because it said, look, there's this injunction from, from the Pennsylvania court. Uh, it proports to be universal. It proports to bar the government from enforcing the, the new contraception regulation as to anybody. Is there really anything for us to do? And so I think where percolation potentially would be lost is if... And it hasn't happened so far. Is if courts started taking the universal nature of other courts judgements seriously and saying, "Okay, that court made this injunction universal. I'm not going to hear this case, because there's nothing for me to do. Plaintiffs, you're already protected by somebody else's injunction."
Rosen: [00:31:13] Many thanks for, uh, desegregating the effects of the percolation question. Uh, we have one more pending, uh, challenge to nationwide injunction involving the president. And that is Trump versus Karnoski. Uh, this involves an administration policy where individuals with a history of a medical condition called gender dysphoria would be disqualified from military service. A number of transgender people serving in the military sued. District courts in California and Washington state ruled in their favor and issued preliminary nationwide injunctions. The government has appealed to the supreme court, uh, solicitor general Francisco writers, "Such previous injunctions were rare, but in recent years, they have become routine. In less than two years, federal courts have issued 25 of them, locking a wide range of significant policies involving na-, national security, national defense, immigration and domestic issues.
Amanda, what is the status of this Trump and Karnoski case? Do you think the nationwide injunctions are appropriate, and, and, and maybe, uh, squarely address these, these numbers. We, we've heard a couple that said that they really ha-, these nationwide injunctions have accelerated dramatically in recent years. Is that true?
Frost: [00:32:24] Yeah, and actually, this is a good moment... I just want to make it clear to listeners who may come all sides of the political spectrum, that I really do not see this is a partisan issue. I don't see this... The way we've been talking, i-it sounds like you like nationwide injunctions if you don't like Trump's policies, and you don't like nationwide injunctions if you do like Trump's policies. And so, I feel the need to point out, the debate over nationwide injunctions began in earnest under President Obama. And at that point, uh, then senator Jeff Sessions loved the nationwide injunction that stopped President Obama's deferred action policy granting deferred action to undocumented immigrants. Uh, another nationwide injunction stopped his effort to, um, ensure that transgender students had access to the bathrooms they preferred in public schools. And there was a host of others.
Um, and then of course, once he's attorney general and nationwide injunctions start being put in place to prohibit or bar President Trump's policies, Jeff Sessions is very anti nationwide injunctions. So, you know, he's a political actor. He's going to take those positions, but Howard and I have a luxury of ac-, as academics of saying, "Do we like nationwide injunctions or not?" Divorced from the policies at stake. I may like or dislike Trump policies. That's not what I'm debating here today. I'm debating do I think courts should have the power to issue a nationwide injunction in certain types of cases, and recognizing that of course, if I say, "Yes, they should," as I do. There will be future presidents whose policies I like that may be stopped by, by judges who think that they violate the law.
So I just want to make that clear to listeners. This isn't about do you like the policy at issue. This isn't about whether you think transgender, uh, folks should serve in the military, or whether that order issued by Trump is, is legal or not. This is about what the proper remedy is assuming that it violates the law. Right? We have to assume there's a violation, and then the question is, should there be a broad remedy? Um, to really know whether a nationwide injunction's appropriate in that case, I'd have to know a whole lot more about the litigation then I do. But it is a good, uh, a chance for me to make one point that might interest your listeners.
Um, Howard earlier talked about class actions, and I do think class actions are a very appropriate way of accomplishing some of the same goals of a nationwide injunction. That is, they're a way of saying, "Look. One, or two, or three people can represent a whole group of people just like them. And sue a challenge, or policy, or practice that they think is illegal." And we have a class action device in our federal and state systems that allow people to do that. One of the problems, one of the reasons we may have more nationwide injunctions today than we've had in the past. Is courts, a-and some, and congress too, have made it harder and harder to what they call certify a class, to allow a class to go forward.
It is now more and more difficult under federal law to do that. And therefore, more and more people trying to bring class actions fail and turn to nationwide injunctions. So I'll just make that point. If you like the class action device, then maybe what we should do is try to make that more readily available, and we wouldn't have to have so many nationwide injunctions.
Rosen: [00:35:15] Howard, your thoughts on the Karnoski case and then let's turn to Amanda's point, that this is a bipartisan sword, and that the supreme court, and joined President Obama's policies most famously in the DAPA and DACA case. When in 2016, the Obama administration asked the court to overturn the nationwide injunction that halted the deferred action for parents of American and lawful permanent residents. And the supreme court, uh, deadlocked on the question four to four.
Wasserman: [00:35:48] So this is, uh, the, the, the transgender in the military case is a good example of, of a case that lends itself perfectly to, uh, the class action device. Because it's a large group of potentially affected people, but, uh, it's a fairly... Unlike with the travel ban, where you had potentially hundreds of thousands of people all over the country. It's a, it's a relatively finite number of people all located within the United States. so I think it would be, uh, it would lend itself very e-, very well to, uh, to class action, uh, to class certification. And then the class can then get an injunction that protects the class as a whole.
The, uh, Amanda's right that the courts have been narrowing the scope of the class action device, uh, in, in recent cases, particularly in recent years. Particularly the, the supreme court. At least to this point, what's interesting is that the target has been large damages class actions. Like, such as the, the, uh, claims of discrimination brought by female, uh, Walmart employees a few years ago. And so far, and there's been some, some good scholarship written on this. So far, the courts have not automatically applied those limitations to the injunction class actions, the civil rights class actions that were created specifically for the types of cases that courts are now imposing universal, uh, injunctions on.
So I think it's important that we keep the class device, uh, alive, and so far, the skepticism that the courts are showing isn't trickling over, uh, to these sorts of, of class a-, these sorts of civil rights class actions. I'm, I'm sorry. What was the second part of the, the question?
Rosen: [00:37:49] I, I asked about the court's response to nationwide injunctions against Obama policies, including DAPA and DACA, and whether y-you believe that the court has been equally skeptical of nationwide injunctions. Whether issued by President Obama or by President Trump, or whether the nationwide injunctions against President Trump have accelerated in recent years.
Wasserman: [00:38:11] Okay. Got it. So, uh, A-Amanda's absolutely right. There should not be a political, uh, valence on this. Uh, and... Y-you know, it has been that Republicans were happy with universal injunctions prior to 2017. Democrats had been very happy with them, uh, since 2017. But the, the proper scope of the injunction shouldn't depend on, on whose ox is being gored. And so the court did uphold th-the universal injunction in the, in the Texas, in the, in the DAPA case. Which for a lot of the scholars studying it was, was sort of patient zero. That was the one that, that seemed to start and accelerate this trend. Whether that's accurate or not, I haven't studied. But at least in the, in the popular imagination, that's the one that, that started us down this path.
And the court upheld the lower court injunction, but I, I really don't think the scope of the injunction was on anybody's mind. I really think they were, that the court was focused on... That all of the justices on both sides were focused on the question of the overall validity of the policy and not the question of the, the remedy that was being issued. So I think o-o-one reason I'm hem-, I'm hesitant to say we know what the supreme court would do, other than Justice Thomas and, and perhaps Justice [Scorcisch] . Is the court has never really taken a case where the question of the, of the scope of the injunction has, has truly been front and center.
Rosen: [00:39:59] Amanda, I, I hear you both saying that this trend started under President Obama but has accelerated under President Trump. Tell me if that's true or if historically, these injunctions, uh, have been used, uh, throughout American history. And if they have accelerated recently, why?
Frost: [00:40:17] Yeah, so I'm really glad you asked that question, because it really goes to the history of the role of the federal courts. And I think that's partly what we're discussing here. What roles should the federal courts play in the American system of government? So y-, I-I'm a little disturbed sometimes when people say, "Oh, well nationwide injunctions have increased," because, you know, and they say since the 70s or since the 80s, or you know, they sort of give a time period that sounds relatively recent to those of us who are a bit older. And I'll just say, you know, enormous amounts of changed about the role of our courts.
The civil rights era changed our courts. Our courts didn't used to be involved in managing institutions after they decided those institutions were incompetent, or biased, or discriminatory. And that's something courts now do regularly, whether it comes to p-prisons, or the foster care system. Or entire school districts or universities. We now have courts that are more actively involved in enforcing constitutional rights and protecting citizens than we've ever had in the past. So nationwide injunctions may well be part and parcel of what is a larger phenomenon. We also have a far more active federal government. Uh, the federal government didn't used to pass lots of laws that af-, applied nationwide before the 19... You know, 40s, 50s, 60s. And so we're seeing courts react to that.
And finally, and this is the, the... I think the message I'd like to leave your listeners with. We've seen in the last few decades, and I would say over the last two to three presidents in particular... And I very much include Obama. Unilateral executive policies broadly changing major federal pieces of legislation, and particularly in the realm of immigration. Obama did it, and now Trump is doing it. Both of them unilaterally issued orders that vastly changed the status of undocumented immigrants, or refugees, or green card holders. Lots of different aspects of their lives. And both presidents have attempted to rewrite immigration law without using congress.
This is in part because congress has been incapable of taking action on immigration, which is a national crisis. And we need congress legislating. When people criticize courts for nationwide injunctions, I want them to take a step back and say maybe the real problem is unilateral executive action broadly changing significant federal legislation. Which itself stems from congressional in-inaction and disfunction. And that's the real problem, not nationwide injunctions, in my view.
Rosen: [00:42:33] Howard, same question to you. Why has the use of nationwide injunctions increased in recent years? Amanda just attributed it to an increased use of unilateral executive action and congressional paralysis. Do you agree, or do you have other explanations?
Wasserman: [00:42:49] I'm not sure that executive action ex-explains it, because if the concern is... I, I, I share the concern with un-, for universe, unilateral executive action, but that doesn't have any more of a nationwide effect than a congressional enactment. So if the problem is the unlawfulness of one or the other, there's no reason that the scope of the injunction, uh, would, would be any different. Uh, I, again, I, I'm not sure if the numbers have, have gone up. I think we are paying more attention to it. Uh, there is a lot more coverage of what the courts do, and a lot more discussion of, uh, particularly when a court steps in and says that a president... Whether a republican or a democrat has acted unlawfully.
So I think it draws a lot more attention to that, and then this term nationwide has become suggestive of something. And so I think it just raises, uh, people's political juices, uh, that much more. I don't, I don't know if there's, there's actually a quantifiable difference in courts issuing universal injunctions as opposed to courts engaging in vigorous judicial review and declaring invalid more federal law, and federal regulation, and federal policy.
The, the second one, we can have a debate about whether or not that's a good thing. But that is actually separate and apart from the universality or nationwide scope of the injunction, and I think in some ways, talking about the nationwide scope is a distraction from the more important issue that Amanda raises. Is should presidents be doing this, a-and what is the validity of the regulations and policies that they're enacting?
Rosen: [00:44:53] Well, it is time for closing arguments in this fascinating discussion. And, uh, I'll ask Amanda first for just a few sentences on the constitutional question we've been discussing. Uh, tell our listeners, do nationwide injunctions violate the constitution?
Frost: [00:45:11] So, uh, I think clearly they do not violate the constitution, because courts have, uh, for many decades now, issued rulings that extend beyond the parties to the, a, a case or effect others in addition to the parties in a case. But I will say that I think this whole question of both the constitutionality and, uh, the policy question underlying the use of nationwide injunctions, turns on the role we want the federal courts to have in our system of government. And I think it's essential that at least in some cases, the federal courts be able to check executive power and use of executive authority. Particularly when it comes to sweeping unilateral changes and law that overnight affect the rights of millions.
And I would hate to see federal courts lose their authority, to, uh, act as a check on the executive branch. I think that's just the role our framers intended for them.
Rosen: [00:45:55] Howard, last word to you. And, and I'll ask the broader question that, that Amanda, uh, thoughtfully answered. Might nationwide injunctions violate the constitution under some circumstances, and are they a good or bad idea?
Wasserman: [00:46:07] So I agree with Amanda, that the role of the court is to check, uh, misconduct and overreach by the other branches of the government. But what, in order to check that, the government has to grant a remedy. And the, the, the court, excuse me, has to grant the remedy. And although we talk about courts striking down, or blocking, or halting federal laws and federal regulations, that's not the remedy that a court can issue. The remedy that the court issues is to stop government officials from enforcing the law or enforcing the regulation. And that idea of enforcement is necessarily limited to a person, the person who is a party to that lawsuit. And so the court's job is, yes, to declare that the government has acted unlawfully, but then the court's job is to resolve the dispute that's before it by stopping the government from enforcing that law against the party to that case.
That's the, and that's the courts, uh, particularized role. And to go beyond that, is to extend to scope of the injunction beyond what is necessary to protect the rights of the person before the court.
Rosen: [00:47:28] Thank you so much, Amanda Frost and Howard Wasserman, for a thoughtful, illuminating, and relevant discussion of a, uh, judicial procedure at the center of American constitutional debate, nationwide injunctions. Amanda, Howard, thank you so much for joining.
Frost: [00:47:44] Thank you, Jeff.
Wasserman: [00:47:45] Thank you very much, Jeff.
Rosen: [00:47:46] Today's show was engineered by David Stotts and produced by Jackie McDermott. Research was provided by Lana Olrich and the constitutional content team. The homework of the week, dear We The People friends, are the articles of our guests, and we will link to them on the We The People resource page. So please, uh, be diligent, uh, check the links, and read the articles. Please rate, review, and subscribe to We The People on Apple podcast and recommend the show to friend, colleagues, or anyone, everywhere who's hungry for a weekly dose of constitutional debate. And remember, always, when you wake and when you sleep, that the National Constitution Center is a private non-profit. We rely on the generosity, passion, engagement, and delight in lifelong learning of people from across the country like you, who are inspired by our non-partisan mission of constitutional education and debate.
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