Smart Take: The Political Context of the Nationwide Injunction by Professor Charlton Copeland


Charlton Copeland

Professor Charlton Copeland (Photo by Joshua Prezant)

Charlton Copeland teaches Civil Procedure I and II, Federal Courts, Administrative Law, and the Regulatory State. In addition, he has served as the faculty coordinator of the Florida Supreme Court Internship Program, and the Law School's Washington, D.C. Externship Program, where he teaches Federal Policy Making: Legislation, Regulation and Litigation. His scholarship has focused primarily on the ways in which federalism as a constitutional and political structure is mediated in the relationship between federal and state courts, the jurisprudence of remedies for state violations of federal law, and the relationship between state and federal implementation of federal policy. In addition, he has written about the intersection between law and theology as they relate to religion's role in American democracy and the framing of liberationist critiques of same sex marriage.  

Much has been made in both scholarly and popular literatures about the rise of the use of nationwide injunctions to challenge various presidential actions in the last two presidential administrations. In the Obama administration, courts issued nationwide injunctions against the transgender bathroom policy, and against the Deferred Action for Parents of Americans policy. District courts have also issued nationwide injunctions against the Trump administration's travel ban and its attempt to penalize cities opposed to its broader immigration policies. These actions have been met by criticism in several quarters as usurpations by ideologically motivated judges who seek to short circuit the ordinary evolutionary process of litigation in multiple jurisdictions on a single question. Critics also assert that the nationwide injunction has had the effect of politicizing the nation's district courts, which had appeared to have been less affected by the general increase in the politicization of the American judiciary.  

At the risk of stepping outside of the most fervent dimension of the debate on nationwide injunctions, we have paid too much attention to courts in our assessment of the nationwide injunction. Stepping back from the courts enlarges the frame of our discussion to include institutions and processes not typically included in the often-thoughtful commentary on this subject. The attention paid by federal courts and civil procedure scholars seems remarkably shorn of attention to the larger institutional and political structures that have raised this issue at this time. One of the first things that stands out about the cases that have received the most attention in the most recent debates is the fact that they are the result of unilateral presidential action. This means that the policy decisions made were the result of the president's having decided to make policy without involving the Congress, or activating the processes of policymaking inside the administrative bureaucracy. Should it matter that the both Democratic and Republican presidents take it upon themselves to significantly shape American immigration policy, or policy in other areas, without the involvement of processes that would generate greater scrutiny of the policy choices made by those outside the executive branch? That the present deployment of nationwide injunctions appears to be disproportionately aimed at policies that resulted from such action does not figure in the academic or popular assessments of the legitimacy of the nationwide injunction.  

Alongside the rise in unilateral executive action is the fact of persistent partisan and ideological polarization within the Congress. The fact of persistent partisan polarization in Congress has undermined that institution's capacity to enact legislative responses to many of the most pressing policy issues in American public life, including immigration. Persistent partisan polarization not only contributes to legislative gridlock, which increases the incentives for unilateral presidential action, but also constrains Congress' ability to respond to unilateral presidential action, even where a majority of Congress is opposed to the president's policy choices. This impotence gives the president even wider capacity to make policy choices free of the constraints of inter-branch policymaking.  

Much of the academic and popular commentary on the judicial deployment of the nationwide injunction begins with the search for the basis of the court's authority to issue relief that extends beyond the parties to the dispute in something other than a class action. These discussions quickly turn to the constitutional basis of the judiciary's authority, and, inevitably, to the traditional constraints on its exercise. The dominant theme of the federal courts-civil procedure-remedies based conversation on nationwide injunctions focuses on Article III-based limits on judicial authority, such as the constitutional requirement for standing, and the limits on the federal courts' ability to entertain political questions. Opponents and defenders of nationwide injunctions have focused on whether the Constitution prohibits a court from issuing an injunction that controls the defendant's behavior as it regards a non-party to a non-class action, or whether traditional equitable remedies underwrite the deployment of such remedial relief.  

While the attempt to address the rise in the deployment of nationwide injunctions seems to sidestep those issues, it impacts the way we think about the issue from a constitutional perspective. Critics of the nationwide injunction have argued that it is inconsistent with Article III's requirement that there be a live "case or controversy" to endow the judiciary with authority to entertain a dispute. Like the argument regarding the consequence of a court's invalidation of a public action, this argument asserts that the judicial issuance of nationwide injunctions involves the court in resolving disputes without the requisite check that they are actually live controversies between the state and an injured party, who seeks the judiciary's action to eradicate or remediate that injury. These critics contend that when a tribunal extends the jurisdictional reach of its remedy for a specific dispute to include all disputes, the court has acted in contravention of the constraints imposed on it by Article III. As such, critics of the deployment of nationwide injunctions have added to their arsenal the argument that the nationwide injunction is unconstitutional judicial action.  

Of all the arguments that have been deployed in opposition to the nationwide injunction—most of which assert why, from a policy or structural perspective, federal judges should be constrained in their use of this remedy—the constitutional argument has the effect of transforming the way that we think about such injunctions, including the institutional role that the federal courts could ultimately have in eradicating their use. Specifically, arguments challenging the constitutional legitimacy of the nationwide injunction seek to end the entire enterprise of judicial issuance of nationwide injunctions. Further, they will have the consequence of foreclosing the grant of legislative blessing to the use of the nationwide injunction. Given the political context of the nationwide injunction, such a broad eradication should not take place without a closer look than has been paid by both the foes and friends of the practice. 

Political science scholars have demonstrated that increased political polarization contributes to legislative inefficacy especially when no party has sufficient legislative control to overcome important institutional hurdles to legislative enactment—like a filibuster or president in opposition to the enactment. But polarization alone is not the culprit. As political scientist Frances Lee asserts, when the two major congressional parties are in a competitive condition in which the next election cycle could change the party in control of the legislative branch, there is less incentive for the minority party to cooperate with the majority party. She argues that under such conditions, political parties neglect the work of governance in favor of "partisan strategic action" that allows them to signal the differences between them and the opposing party for electoral gain. Lee contends that partisan polarization combined with inter-party competition for control of the Congress creates the conditions that lead to legislative gridlock. Presidents take advantage of such gridlock. 

On November 20, 2014, President Obama addressed the nation in a nighttime speech in which he announced additional policy efforts to "fix[] this broken immigration system." Though he defended the legality of his unilateral action, Obama emphasized the context in which that action came about, namely what he described as Congress' unwillingness to act. He specifically criticized the Republican-controlled House of Representatives, stating, "Had the House of Representatives allowed that kind of bill a simple yes-or-no vote, it would have passed with support from both parties, and today would be the law. . ." Setting substance aside, the president's assertion of authority against the backdrop of congressional impotence is part of the political narrative of the nationwide injunction. 

The deployment of the nationwide injunction is a source of mischief, and likely further politicizes American judicial institutions, but it is not disconnected from the larger problem in American politics—partisan political polarization that exacerbates legislative ineffectiveness and presidential unilateral action. Focusing solely on courts as the institutions most responsible for the problem misses the symptom for the cause.

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