Zachary D. Clopton, Cornell Law School
Everybody seems to be talking about nationwide injunctions. Sometimes described as national, universal, or even cosmic, these injunctions are defined by their ability to enjoin a defendant (usually the federal government) with respect to parties and nonparties alike. In the Travel Ban case, Justice Thomas concurred solely to assert that nationwide injunctions are “legally and historically dubious.” Justice Gorsuch echoed that same sentiment from the bench in oral argument. In a wide range of forums, critics have argued that nationwide injunctions depart from the history of equity, contradict Supreme Court precedent, and are inconsistent with judicial structure (among others).
Whether a nationwide injunction should issue in a particular case is an important—and potentially difficult—question. I write not to answer that question for each and every case, but instead to show that many of the critics’ categorical arguments about nationwide injunctions are misplaced or overbroad. The question whether a nationwide injunction should issue is case-specific and policy-inflected. The answer is not dictated by history, precedent, or structure. Below I show why.
History Is Ambiguous
In 2017, Professor Samuel Bray wrote the definitive history of nationwide injunctions. Bray’s history includes a striking claim: “There is an easy, uncomplicated answer to the question whether the national injunction is traceable to traditional equity: no.” In his concurring opinion in the Travel Ban case, Justice Thomas relied heavily on Bray for the proposition that nationwide injunctions are anathema to the history of equity. To Thomas and Bray (and others), the absence of nationwide injunctions in the history of equity necessarily implies that these injunctions are inappropriate today.
In fact, the history is far less definitive. First, even nationwide-injunction critics acknowledge that the early history of equity permitted “bills of peace.” The bill of peace was a procedure by which equity courts could resolve multiple claims at once. Seemingly, one plaintiff could have used the bill of peace to protect the rights of absentees too. The claim that nationwide injunctions were impossible, therefore, requires this important caveat.
Second, and as of yet unacknowledged by nationwide-injunction critics, the history of the law of preclusion further complicates the historical narrative. Critics observe that the nationwide injunction seemingly appeared from nowhere in the 1970s and 80s, offering new protections to nonparties. Students of civil procedure might recognize this story: nonmutual preclusion showed up in federal law around the same time, offering new protections to nonparties too. Specifically, in the famed case Parklane Hosiery Co. v. Shore (1979), the Supreme Court authorized “offensive nonmutual issue preclusion,” a doctrine that permits plaintiffs to invoke a prior adjudication in a subsequent action even though they were not parties to the original suit. Following Parklane, nonparty plaintiffs could be protected by prior judgments through the law of preclusion. And the Supreme Court said that nonmutual preclusion would not offend the Seventh Amendment even if it deprived a defendant of a jury trial in the second case. Because the doctrine of preclusion predated the Seventh Amendment, this new form of nonmutual preclusion would be tolerated as well.
What does this mean for nationwide injunctions? It means that the lessons of history must be considered in light of the different legal environment. The fact that courts were reluctant to grant injunctions benefiting nonparties prior to the rise of nonmutuality might mean only that nonparties should not be entitled to more benefits from injunctions than they receive from preclusion. And Parklane shows that expanded protections for nonparties are not foreclosed by historical practice. Appeals to history, therefore, are not such strong reasons to oppose nationwide injunctions today.
Precedent Points to Policy
Wait a minute, national-injunction critics might say, isn’t the federal government exempt from nonmutual preclusion under United States v. Mendoza? Critics would be right to invoke that 1984 decision as precedent, but they would be misapprehending its significance.
By way of background, Mendoza arose from a suit by Filipino veterans seeking U.S. citizenship. In a prior case, a federal court held that depriving some similarly situated veterans of citizenship violated their right to due process. In Mendoza, the question was whether the government should be bound to that prior determination in a suit by other veterans—an application of Parklane’s offensive nonmutual issue preclusion. The Supreme Court, in an opinion by Parklane-dissenter Justice Rehnquist, held that nonmutual preclusion is not available against the federal government.
Scholars have pointed to Mendoza as an argument against nationwide injunctions. Because Mendoza says that a nonparty cannot get the preclusive benefit of a prior adjudication against the federal government, critics argue that the same nonparty should not get the remedial benefit of a national injunction against the federal government either.
Importantly, Mendoza was not grounded in history or constitutional law. It was a policy determination through and through. As a result, we might appropriately read Mendoza as stating only that the scope of nonparty protection is a matter of policy. So when critics of nationwide injunctions invoke Mendoza, they reinforce the notion that we should be thinking about policy when deciding what to do with nonparty relief.
I would go further: As I detail in a forthcoming article, the policy arguments in Mendoza are weak. And more to the point here, they tell us little about the propriety of national injunctions. Mendoza, for example, worried that nonmutual preclusion would force the government to appeal every adverse decision in order to avoid being bound in all future proceedings. But no one thinks that nationwide injunctions should be issued in every case involving the federal government—these are extraordinary remedies that come up only in highly salient situations. And it would be completely appropriate for the government to appeal adverse decisions in this small number of important cases. Therefore, one could easily be worried about the ramifications of nonmutual preclusion but be untroubled by an occasional nationwide injunction. Mendoza also warned that nonmutual preclusion might deprive future administrations of the ability to change policy. But the same could be said for party-protecting injunctions, and we certainly permit courts to issue those against the government. Extending that logic to nonparty-protecting injunctions is not such a leap.
Structural Arguments Don’t Work Either
The connection between injunctions and preclusion also undermines arguments against nationwide injunctions that sound in governmental structure.
Critics of nationwide injunctions worry that allowing one district judge to make national law violates some deep principle of judicial hierarchy. They note, for example, that a district court opinion would lack precedential effect in a neighboring district. Based on this structural critique, Attorney General Jeff Sessions labeled district judges issuing injunctions beyond their districts with the scarlet A (“activist”).
But the American law of judgments shows that the idea of a jurisdictional limit on lower courts is not universally applicable. Under full faith and credit principles, federal and state courts are bound to recognize the judgments of other U.S. courts. Preclusion, in other words, makes every U.S. judgment “nationwide.” American courts are so committed to this idea that they typically apply a presumption of full faith and credit to foreign-country judgments as well.
Once we acknowledge that some doctrines limit the effect of lower-court judgments to their jurisdictions while other do not, we are thrust once again into the policy debate. As I said above, whether a nationwide injunction should issue in a particular case is a difficult question. Part of what makes it difficult is that arguments about history, precedent, and structure do not provide a once-size-fits-all answer.