In the Wall Street Journal, law professor Elizabeth Price Foley argues that the Supreme Court can eliminate nationwide injunctions by amending Federal Rule of Civil Procedure 65. Professor Foley’s proposal is clever and would advance the cause of ending nationwide injunctions in several ways. But ultimately her proposal may not be sufficient to end them for good. The best way to end nationwide injunctions for good is for the Supreme Court to take an appropriate case and hold that these injunctions are neither authorized by law nor contemplated by Article III of the Constitution—an argument my colleague Paul Larkin and I have advanced elsewhere.

Professor Foley is right to lament nationwide injunctions. The power to issue a nationwide injunction (or, more accurately, a “universal” injunction because it is not limited by geography or the parties before the court) makes a single district judge as powerful or more powerful than a majority of Supreme Court justices. With that power, a single judge can block the government from enforcing a rule or policy as to anyone, anywhere, at any time.

If the judge gets it wrong, either because he makes a mistake or because he lets partisanship cloud his legal judgment, nothing can be done unless and until a higher court intervenes. And if the higher courts get it wrong, nothing can be done at all.

To see the seriousness of the problem, consider the case of Dred Scott v. Sandford and Abraham Lincoln’s response to it. There, the Supreme Court wrongly held that black people were not citizens, but it did not apply its holding to all laws that recognized black people as citizens. Because there was no nationwide injunction, Lincoln could obey the decision with respect to Dred Scott himself but refuse to abide by its broken logic in similar cases; Lincoln continued to grant passports and patents to black people—legal rights that only citizens could have.

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Nationwide injunctions foreclose such statesmanlike “departmentalism.” If courts had the power to issue nationwide injunctions (something unthinkable in 1857), a single slavery-supporting district judge could have enjoined the Missouri Compromise itself and the application of any laws and practices (like granting passports and patents) to any black people anywhere in America or its territories.

Supreme Court Justices Clarence Thomas, Elena Kagan, and Neil Gorsuch have expressed disapproval of nationwide injunctions, but the Court has refused either to endorse or forbid their use in any of its opinions.

Professor Foley argues, therefore, that the Court can solve the issue without an opinion. It could amend Federal Rule of Civil Procedure 65, which establishes the procedures for issuing preliminary injunctions. She does not provide proposed text, but one assumes it would say something like “any injunction shall be limited to the parties to the case.”

Professor Foley’s proposal could limit nationwide injunctions in a few ways. First, judges are obligated to obey the rules of civil procedure. That said, there are some judicially crafted exceptions that let judges extend or loosen certain rules in the interests of justice. Courts have, for example, created an exception to Rule 11’s requirement that pleadings be supported by law when lawyers bring unmeritorious cases to try to change the law. They have also loosened Rules 23’s strict requirements of common questions of law and fact among members of class actions¹, and have tolled Rule 60’s time limit to prevent injustice in “extraordinary situation[s].”   

Second, Professor Foley’s amendment might discourage courts from crafting such an exception for nationwide injunctions because the Federal Rules of Civil Procedure bear the imprimatur of the Supreme Court and Congress (which approves all final federal judicial rules). And finally, if a district court tried to create an exception so that it could issue a nationwide injunction, that case would provide yet another vehicle by which the issue of nationwide injunctions would reach the Supreme Court.

But would her amendment stop a district or circuit court from creating such an exception? It is a near certainty that some of them will try. Many judges believe, incorrectly, that nationwide injunctions are constitutional. They wouldn’t issue them otherwise. And many judges take it as dogma that nationwide injunctions are necessary to do justice in some cases. On both these points they find some vociferous (if not entirely sound support) in law review articles. If lower courts sincerely believe that they have the power to issue nationwide injunctions and that justice demands it, they will find a way to do it. 

In that case, only two things can stop them: legislation (like the bill introduced recently by Senator Chuck Grassley), or a decree from the Supreme Court saying that such exceptions are prohibited because nationwide injunctions are unlawful and unconstitutional. But that returns us to our starting point: we have neither legislation nor a decision from the Supreme Court holding that nationwide injunctions lack a basis in law.

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This seems to be a problem of will. As for Congress, a recent hearing on nationwide injunctions illustrated that the party that does not control the White House will oppose legislation against nationwide injunctions, even if the party supported such reform when it held the White House. Add the filibuster to this hypocrisy, and legislative reform seems unlikely. As for the Court, it has passed on every opportunity to address nationwide injunctions. If it refuses to approach nationwide injunctions through a case, there is little reason to think it would take the more difficult route through the rules of civil procedure. As Professor Foley rightly acknowledges, amending the rules “often takes years,” “involves input from advisory committees, the Judicial Conference and public,” and requires Congressional review. That makes a “repeal” of nationwide injunctions through the rulemaking process time-consuming and vulnerable to counterattacks by judges, interest groups, academics, and politicians.

It would be simpler, faster, and final for the Supreme Court to end nationwide injunctions with an opinion. But the Court has not done that, which tells us that the problem is not the lack of a way, but the lack of will. Can Professor Foley’s proposed amendment energize a languid will? We do not know. But what we do know is that lower courts are imposing nationwide injunctions swiftly and with shockingly little consideration of their authority to do so. Their embarrassing haste, the resulting disruption it makes on the Court’s emergency docket, and the inevitable vigorous dissents from Justices Thomas and Gorsuch against any decision to dodge the issue will all increase the pressure on the majority to act.

Regardless, if the Court suddenly finds the will that it currently is not exercising, it would be better for it to hold nationwide injunctions unconstitutional on the basis that Article III’s “judicial Power” does not include this novel remedy, than for the judicial rulemaking process to devote years of work trying to adopt a rule that will likely only postpone the day when the Court must confront the same question.