Introduction: The Practice of Issuing Nationwide Injunctions

The Unitary Executive TheoryREF posits that, by virtue of Article II of the U.S. Constitution, the President possesses “the executive Power”REF—“all of it, in fact,” as John Roberts, Chief Justice of the Supreme Court of the United States, once explainedREF—and that neither Congress nor the federal courts may interfere with his or herREF authority except as necessary to ensure that the President complies with the Constitution or any applicable, constitutional acts of Congress.REF Under that theory, the President alone may exercise whatever power the Constitution vests in him (such as the pardon power) and whatever powers Congress has granted him or anyone below him in the executive branch (any management power). In addition, as recent events demonstrate,REF the President may remove any “Officer of the United States”REF (except for the Vice PresidentREF) without cause whenever the President chooses to replace him for any reason that he finds sufficient.REF

Some federal courts have created their own version of that thesis—let’s call it a Unitary Judiciary Theory—in cases involving injunctive relief. Ordinarily, when a plaintiff believes that damages awarded after the fact would not fully compensate for the harm that he might suffer, the plaintiff will seek an injunction to prevent the irreparable injury from occurring.REF Injunctions entered in such cases identify the parties who may benefit from, and who are subject to, the injunction, and only those parties are subject to its commands.REF But there is a category of cases—known as “public law litigation” or “institutional reform litigation”REF—in which the plaintiff seeks not merely to avoid personal harm, but also and more importantly to reform a government institution, such as a school system, a penitentiary, a mental institution, or something else.REF In some cases brought against a state or the federal government, a plaintiff might urge a federal district court to certify a statewide or nationwide class of parties under Rule 23 of the Federal Rules of Civil Procedure and, if a class is certified and the award is appropriate, seek an injunction benefitting the entire class.REF

Over the past decade or so, however, some district courts, without certifying a nationwide class, have nonetheless entered nationwide relief against the federal government that is available to third parties.REF That practice is an oddity in the law of equity. Nationwide injunctions have arisen, if not without any justification, at least without a settled consensus rationale for their use.REF Known as “nationwide,” “universal,” or even (albeit playfully) “cosmic” injunctions, those orders bind the government to act (or refrain from acting) in any case against any party, including ones who were not parties to the lawsuit before the district court.REF The justification for this extraordinary measure is that, once a court has ruled that the government will act unlawfully, the strong value in the even-handed administration of the law, supported by powerful judicial efficiency considerations, strongly militates in favor of allowing nonparties to secure the same legal protection as the successful plaintiff without the need for a separate lawsuit to secure that right.

That practice has given rise to an oddity in the law of remedies.REF An injunction is an order to do or refrain from doing a particular unlawful activity or category of unlawful activities, a remedy that traces its lineage to the English Court of Chancery.REF A plaintiff who has proven his case on the merits and established that he is at risk of suffering irremediable harm may ask a district court to enjoin the defendant, whether a private party or government official, from causing such injury. Every federal district court injunction is “nationwide” in its scope because a victorious plaintiff can obtain relief wherever the defendant places the plaintiff at risk of harm. But the injunction applies only to the party identified in the judgment, not to strangers to the litigation. Yet that is what district courts have done in cases involving so-called nationwide injunctions: “[F]ederal courts are issuing injunctions that are universal in scope—injunctions that prohibit the enforcement of a federal statute, regulation, or order not only against the plaintiff, but also against anyone,” even people who were not parties to the original case and therefore were not identified in the complaint.REF

The legitimacy of that practice has become the subject of considerable controversy over the past few Administrations because some district courts regularly enjoined the federal government from applying a new legal interpretation or policy to anyone once the court had ruled it unlawful.REF The use of nationwide injunctions reached its zenith during the first Trump Administration and continued during the Biden Administration,REF albeit with lesser fury.REF But the subject has resurfaced early in the second Trump Administration as parties affected by the blizzard of executive orders issued since January 20, 2025,REF have resorted to court for relief.REF Already, district judges have granted nationwide injunctions with respect to several of Trump’s executive orders.REF

These injunctions purport to cover nonparties on both sides of the “v.”—that is, they protect non-plaintiffs from actions by non-defendants. For example, a district court judge in Maryland granted a nationwide injunction against parts of Trump’s orders directing agencies to require federal contractors to certify that none of their diversity, equity, and inclusion programs violate federal civil rights laws.REF The court purported to enjoin the defendants and “any other persons who are in active concert or participation with Defendants” from enforcing any requirements flowing from the enjoined portions of the orders against the plaintiffs and any “similarly situated” non-plaintiffs.REF In other words, it enjoined everyone from “participating” in the enforcement of the order against everyone “similar” to the plaintiffs. Three other district courts granted comparable injunctions with respect to Trump’s order on birthright citizenship,REF order suspending a migrant resettlement program,REF and order instructing agencies not to give grants to organizations that promote gender ideology.REF

A month into Trump’s first term, judges have already issued almost as many nationwide injunctions as they did during all eight years of the George W. Bush Administration.REF “Nationwide injunctions are undeniably on the rise” regardless of which party occupies the White House,REF and the discussion about their use has not generated a consensus on their permissibility, utility, or wisdom.REF

The rationale for the rise of nationwide injunctions is likely based on multiple factors,REF such as the rise of a never-ending political campaign season;REF the inability of Congress to compromise on legislation because of the nation’s extreme political, economic, and social polarization, particularly in this century;REF the increasing frequency of Presidents’ unilateral attempts to fill the public policymaking void by issuing executive orders rather than negotiating with Congress over legislation;REF and the evolution of “intellectual fashion regarding law and the judicial role.”REF Whatever the provenance of this development might be, no solution is preferable to a bad one, and the arguments in favor of nationwide injunctions are quite unpersuasive as a matter of law and policy.REF In short, the effect of that practice is to place any of the 600-plus authorized federal district court judgesREF temporarily on a par with the Supreme Court of the United States because each one can halt a practice nationwide unless and until a higher court revises, reverses, or vacates its order or Congress modifies the underlying substantive law. Regardless of how attractive it might appear in our current political straits, that practice finds no support in the Constitution, the federal Judicial Code, or common law principles of issue or claim preclusion. Atop that, the issuance of nationwide injunctions for the benefit of strangers to litigation conflicts with the holdings and rationales of two Supreme court decisions: Williams v. ZbarazREF and United States v. Mendoza.REF It is just a misguided attempt to use the federal judiciary to craft a judicial solution to a political problem.

Multiple Supreme Court Justices have noted that the issue is an important and recurring one that needs to be resolved.REF It is likely that a case presenting that question will make its way to First Street, Northeast, over the next four years. When that occurs, the Supreme Court should admonish the federal courts to provide all appropriate relief to the successful party or parties in a particular lawsuit but should also direct the courts to refrain from legislating for the rest of the nation.REF This type of relief is not among the ones that Mae West intended to include when she said, “Too much of a good thing can be wonderful.”

The Constitution

Most of the Constitution’s text, like much of the Convention of 1787 that created it,REF is devoted to the creation, empowerment, and regulation of the Article I and II branches: Congress and the President. Article III occupies a smaller place in the architecture of the new government. It says little that is relevant to the issue discussed here, but what it says does not support the practice of issuing nationwide injunctions of the type recently issued.

The Article III Vesting Clause authorizes federal courts to exercise the “judicial Power” to adjudicate specified “Cases” and “Controversies” in both “Law and Equity.”REF The Framers were familiar with the English legal system,REF which the colonies had brought with them to the New World,REF and the historical practices of the English common-law and equity courts give meaning to those terms.REF That is, the new federal courts were responsible for answering questions of “Law and Equity” that would arise when they preside over “Trial[s]” in “criminal prosecutions” or “Suits at common law.”REF As James Madison, the father of the Constitution, explained, the federal courts were to resolve matters “of a Judiciary Nature.”REF With respect to “Equity,” which was a separate judicial system in England dealing with (among other things) injunctive relief, “[t]he jurisdiction thus conferred,” in the words of Justice Antonin Scalia, is the power “to administer in equity suits the principles of the system of judicial remedies…administered by the English Court of Chancery” at this nation’s Founding.REF The type of nationwide injunctions that district courts have issued against the Trump Administration lacks a pedigree in the equity courts of merry ol’ England.REF

Cognate provisions in the Constitution are helpful in defining what matters are “of a Judiciary nature.” REF Why? Because they grant exclusive lawmaking authority to Congress and the President, thereby impliedly foreclosing any exercise of “the judicial Power” in a manner that would replicate what only they may do.

Article I vests “[a]ll legislative Powers herein granted” in Congress, which textually distinguishes what Congress can produce from the type of “judgments” that courts may enter; creates requirements to hold office in that institution, none of which apply to federal judges;REF and defines the Bicameralism and Presentment requirements necessary for a “Bill” to become a “Law.”REF That provision shows that the Framers distinguished between the “Law[s]” that Congress passes and the “judgments” that courts enter. The former are legislative products that govern the nation; the latter merely represent the adjudication by a court of the conflicting claims between two parties.REF Judgments that closely resemble “Law[s]”—the infamous Miranda warnings spring readily to mindREF—exceed the authority of the courts, whose remedial power is limited to entry of a judgment resolving a specific caseREF rather than the promulgation of rules for the overall governance of society.REF As Professor Samuel Bray has put it, “Article III gives the federal courts the ‘judicial Power,’ which is a power to decide cases for parties, not questions for everyone.”REF

The Supreme Court’s 1923 decision in Frothingham v. MelonREF makes that point.REF Frothingham involved a Tenth Amendment challenge, brought by the state of Massachusetts and a private party, to the Maternity Act, which created and funded a joint federal–state program to reduce maternal and infant mortality.REF After concluding that Massachusetts could not bring that lawsuit,REF the Court turned to the claim by the private party, Harriet Frothingham. The Court held unanimously that a court of equity could not entertain her lawsuit because the injury to her from the collection of a federal tax was so minimal as to be de minimis.REF Allowing the lawsuit to go forward in equity, the Court noted, would permit anyone to bring such a claim, a result that not only had no precedent in its jurisprudence,REF but also would result in the courts trespassing on Congress’s legislative power.REF Article III, the Court held, does not extend that far.

In creating this limited assignment of Article III responsibilities, the Framers rejected alternatives that would have allowed the federal courts to play a role in the Article I legislative and Article II managerial processes. England had a long history of courts serving in multiple governmental roles before the Framers assembled in Philadelphia in 1787.REF Before William I’s 1066 conquest of England, the Anglo–Saxon kings relied on a council of elders, called the Witan, to determine the governing tribal customs.REF After William became king, the Witan became the Curia Regis (the King’s Court), which could exercise legislative, executive, and judicial power.REF Four centuries later, the Star Chamber, a court of general jurisdiction consisting of the king’s councilors and common-law judges, emerged within the Privy Council, a collection of the king’s general advisors.REF Even after Parliament stripped the Privy Council of its domestic adjudicative authority during the Civil War, the council still dispensed justice and reviewed local colonial legislation like the bills adopted in America’s 13 colonies.REF The House of Lords also exercised both judicial and legislative power by serving as the highest court in England and one branch of a bicameral Parliament.REF English law saw nothing improper in the same body wearing more than one lawmaking, law-enforcing, and law-adjudicating hat.REF

The Framers also knew a local example of a system in which judges also functioned as legislators. The New York Constitution of 1777 established a Council of Revision containing judges as members even though the council rather than the governor had veto and revisionary power over legislation.REF Persuaded by Montesquieu's separation-of-powers design, the Framers rejected that approach at the Constitutional Convention.REF That is important because a universal injunction has more features in common with a “Law” than it has with a judgment in a “Case” or “Controversy.” An injunction is a coercive remedy used to enforce a court’s judgment,REF while “Law” governs everyone to whom its terms reach.REF

Yes, a trial or appellate court’s resolution of a dispute often requires the judge to make new law or to apply settled law to different facts, and the judgment entered in the case establishes the law between the partes. But that lawmaking occurs only at the micro level—that is, only for the parties to the case. That is what Justice Oliver Wendell Holmes meant by saying that “judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.”REF By contrast, an act of Congress is an example of macro lawmaking because it governs everyone to whom its terms apply and is the product of old fashioned politicking from which the federal courts must abjure.REF Said differently, an injunction is a coercive remedy used to enforce a court’s judgmentREF and, as the Supreme Court has made clear, “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”REF A nationwide injunction is certainly far more burdensome than an injunction limited to one or more plaintiffs, and it certainly shares more in common with a “Law” passed by Congress than it does with a judgment entered by a court in a particular case.REF

Keep in mind that it is not the judgment that generates the law affecting other parties; the court’s rulings on pure issues of law and mixed questions of law and fact, along with the doctrine of stare decisis, accomplish that result. That doctrine (generally speaking) treats established law as binding on everyone within a particular jurisdiction. A rule given stare decisis effect can benefit nonparties, and it might entitle them to prevail readily in a new lawsuit. But the law of judgments and the law of stare decisis do not completely overlap.REF Most importantly, nonparties can invoke stare decisis principles to prevail in a case, but they cannot seek to hold a defendant in contempt of court, which can lead to fines or incarcerationREF for failing to follow the law in a particular jurisdiction; that requires a judgment the defendant has violated. For example, a circuit court’s ruling not only gives rise to a judgment in favor of the prevailing party, but also serves as a binding precedent for all district courts in that circuit under standard stare decisis principles. But one circuit’s ruling does not establish the law in any other circuit; the government may continue to litigate elsewhere to establish favorable law.REF In fact, it is not uncommon for the circuit courts to disagree among each other over an issue of law or a mixed question of fact and law. By contrast, district court opinions have no stare decisis effect at all; they do not even bind the judge who issued the opinion, let alone any other court in that district or elsewhere.REF The Framers’ decision to limit the federal courts to the micro-lawmaking that was the traditional work of the common-law courts—rather than the macro-lawmaking that is the responsibility of legislatures—is powerful evidence that federal courts may use an injunction to remedy only the injury suffered by the parties, not the nation.REF

The Judicial Code

The Judicial Code does not grant the federal courts the power to transform “judgments” into “Laws,” despite what some judges have concluded. None of the statutes creating federal jurisdiction to implement the “Case” or “Controversy” limitations in Article III authorize the courts to grant relief to third parties in the same manner that courts may award to parties or that Congress may accomplish through a generally applicable “Law.”REF Nor does Rule 65 of the Federal Rules of Civil Procedure, which addresses “Injunctions and Restraining Orders,” fix necessary and sufficient criteria for entry of a nationwide injunction.REF Consider also that declaratory relief was unknown to the common lawREF and that Congress had to pass the Declaratory Judgment Act to offer courts that opportunity.REF Yet that statute makes the point that a federal court may declare rights and remedies only for the parties in a case by providing that “[i]n a case of actual controversy within its jurisdiction,” a federal court “may declare the rights and other legal relations of any interested party seeking such declaration,” thereby limiting equitable relief to the parties to a lawsuit.REF Beyond that lies the realm of nationwide lawmaking, which, as explained above, is the exclusive responsibility of Congress.

Remember: As the Supreme Court has noted, Congress is under no obligation to grant federal courts the full extent of the jurisdiction or authority that Article III would permit.REF Neither the Judiciary Act of 1789 nor any of its offspring granted federal courts the full extent of the judicial power available to them under Article III.REF Congress also may limit the remedies that an Article III court may employ.REF Those omissions are significant because they indicate that the ability to award nationwide injunctions is in no way a historic incident of the power of the federal judiciary to resolve cases and controversies. Nonparties can seek the same judicial relief that is awarded to a successful party in Case A, but strangers to that case must file their own lawsuit, Case B, to be able to receive the same injunctive relief.

In addition, the congressionally created architecture of the federal judiciary undermines any argument that nationwide injunctions are indispensable to the Article III “judicial Power.”REF Congress created one or more district courts in each stateREF and collected those districts into 12 geographically defined circuits.REF District courts are triers of fact, while circuit courts resolve appeals, but only over the districts within each respective circuit.REF That dispersion is important for stare decisis purposes. A loss by the government in any one circuit does not bind the government nationwide, barring it from seeking to persuade other circuits that the first one to decide an issue got it wrong.REF It may continue to defend its position in the other circuits and ultimately before the Supreme Court. That vertical and horizontal arrangement of the courts gives rise to a comfortable development of the law of stare decisis only within each circuit to maximize the opportunity for every aspect of an issue to be considered, an opportunity for development of the law that would be eliminated if any one district court could issue a decision binding across the nation just because the government was the losing party.

Allowing district courts to enter nationwide injunctions also would effectively nullify the class action certification requirements of Rule 23 of the Federal Rules of Civil Procedure.REF One of the values of following Rule 23 is that it announces to the world that “This case is it, the case that will resolve this issue for everyone.” Potential plaintiffs and the government both know that a particular case is Armageddon on a particular subject. District courts disregard Rule 23’s requirements at their peril. The Supreme Court so ruled in Baxter v. Palmigiano, concluding that the district court erred by entering a judgment granting class-wide relief without first certifying a nationwide class.REF If courts cannot grant class-wide judgments to an uncertified class, “it is nonsensical to allow them to grant the same relief to an uncertified class of everyone, everywhere.”REF

Some parties have argued that the Administrative Procedure Act (APA) authorizes district courts to issue nationwide injunctions against the government because it directs courts to “set aside” unlawful agency action.REF That term, the argument goes, impliedly authorizes courts to invalidate an agency rule nationwide by vacating the rule.REF That argument reads far too much into that two-word phrase, as Professor Bray has explained. Nationwide injunctions “were not contemplated when the APA was enacted” in 1946.REF Moreover, in 1946, adjudications, not rulemaking, were the principal mechanism for agency lawmaking, and the choice of “set aside” is consistent with reversing adjudications because that was how “prior judicial usage” employed the phrase when reversing judgments.REF Finally, it was settled law in 1946 that nonparties to a lawsuit did not benefit from a judgment entered in a party’s favor.REF Even in APA cases, therefore, the two-word phrase “set aside” is no support for the power to issue nationwide injunctions.

The Supreme Court’s Case Law

Two Supreme Court decisions—Williams v. ZbarazREF and United States v. MendozaREF—also reveal that courts may not enter nationwide judgments benefitting nonparties absent express authority to that effect from Congress. Each case involved a factual pattern often seen in cases involving nationwide injunctions. One approached this problem from the front; the other, from the back. Zbaraz undermined the case for nationwide injunctions by recognizing that Article III requires a concrete dispute between identified parties in an actual “Case” or “Controversy;” Mendoza undermined the case for nationwide injunctions by creating a doctrine that prevented the federal government from suffering a playoff-like “One and done” outcome if it loses a lawsuit.

The plaintiffs in Zbaraz challenged the constitutionality of an Illinois law that declined to fund elective abortionsREF on the ground that the statute denied an indigent woman the right to obtain an abortion under the law created in Roe v. Wade.REF The plaintiffs did not claim that the federal Hyde Amendment also infringed on their rights even though it imposed a parallel limit on federal reimbursement for elective abortions.REF Nevertheless, the district court believed that the two statutes were closely interrelated and held both laws unconstitutional. The Supreme Court reversed, ruling that the district court “lacked jurisdiction to consider the constitutionality of the Hyde Amendment” for two reasons: None of the plaintiffs in Zbaraz had challenged the constitutionality of the Hyde Amendment, and the district court could have awarded the plaintiffs complete relief by entering an order that said nothing about the validity of the Hyde Amendment.REF Under those circumstances, the Court reasoned, there was no “case or controversy sufficient to permit an exercise” of the Article III judicial power. Zbaraz therefore stands for the proposition that a district court lacks jurisdiction to grant relief to a prevailing party on an issue not in dispute in the case and unnecessary to fully remedy the plaintiff's injury.REF

It follows logically that a district court lacks jurisdiction to award relief to a nonparty as to whom there is, by definition, no “Case” or “Controversy” with anyone before that party enters or files a lawsuit. If there was no controversy in Zbaraz between the plaintiffs and the federal government, as the Supreme Court held, there also would be no controversy between anyone on the sidelines of a lawsuit and the federal government. To be sure, third parties might object to whatever action the government is taking toward a party to litigation, and they might even have a legitimate claim of injury. But unless and until they become a party to an ongoing lawsuit or file an action of their own, they have no greater entitlement to an injunction resting on the judgment of an Article III court than they would have if they bested a government representative in a law school debate.REF

Mendoza involved the preclusive effect of a judgment entered against the federal government in an earlier lawsuit involving the same legal issue but different parties. The issue in dispute centered on the doctrines of issue and claim preclusion, historically known as collateral estoppel and res judicata. Each rule sought to simplify and reduce litigation by preventing identical parties from relitigating a final judgment entered in a lawsuit between them. For example, if Party A prevailed against Party B in a lawsuit, the final judgment resolved their dispute. That judgment, however, did not affect the rights of Party C (or D through Z) unless C had a relationship with A or B (known as being in “privity” with A or B) that was close enough to justify treating C as the alter ego of one of them.REF Over time, critics argued that the issue and preclusion doctrines should apply more broadly,REF and the Supreme Court ultimately agreed to revise the issue and claim preclusion doctrines under federal common law. In 1971, the Court decided in Blonder-Tongue Laboratories v. University of Illinois FoundationREF that, in suit by Party A against Party C, Party C could make defensive use of a judgment against A in A’s prior suit against Party B. Eight years later, in Parklane Hosiery Co. v. Shore,REF the Court allowed Party C to make “offensive” use of a judgment against Party B that was obtained in a prior suit brought by Party A against Party B.

Mendoza involved a 1942 amendment to the Nationality Act of 1940 that made it easier for foreigners who had served honorably in the U.S. military during World War II to become American citizens by, for example, waiving any residency requirement and permitting qualified applicants to be naturalized overseas rather than within the United States.REF Unfortunately, the World War II Japanese occupation of the Philippines scuppered that plan, making naturalizations impossible until 1945.REF Moreover, after gaining its independence from the United States in 1946, the Philippine government did not want to lose its citizens to this nation.REF As a result, the Immigration and Naturalization Service (INS) did not send a representative to the Philippines until 1945 and even then temporarily halted all such naturalizations from October 1945 until August 1946.REF The eligibility window under the amended Nationality Act of 1940, however, closed at the end of 1946.REF Sergio Mendoza sued, arguing that his inability to apply for citizenship deprived him of due process of law. Pointing to the judgment entered against the government in an earlier lawsuit involving the same claim, the district court held that the government was precluded from relitigating that issue in Mendoza. The district court entered judgment in Mendoza’s favor on that ground.REF The court of appeals affirmed, but the Supreme Court reversed.

Recognizing that the preclusive effect of a federal court judgment was a matter of federal law, the Court approached the issue in Mendoza by using the same common-law, cost-benefit, balancing decision-making process it had followed in Blonder-Tongue and Parklane. The Court noted, however, that the federal government is a unique litigant in federal court for two reasons: It was a party to a far larger number of cases than any private party was, and many constitutional issues arise only in the context of public litigation.REF Those factors persuaded the Court that allowing a nonparty to bind the federal government whenever it lost a case would have serious adverse consequences for the legal system.

Allowing a nonparty to preclude the federal government from relitigating a claim that it has lost in a different court would severely hamper the Supreme Court’s own decision-making ability.REF Ordinarily, the Court declines to review an issue until after it has “percolated” in the lower courts, the legal profession, and the academy. Only after an issue has been fully thrashed out will the Court choose to decide it, because only then does the Court have the confidence that every argument on each side, every sub-issue that could potentially change the issue, has been identified and aired and every consequence, positive and negative, has been identified. That approach enables the Court to select the correct (or at least the best) answer to the issue.REF Binding the government everywhere and forever once it loses an issue—particularly an issue of constitutional law—would jeopardize that approach, pithily described by Professor Bray as “[m]easure twice, cut once.”REF In addition, precluding the federal government from relitigating any adverse ruling would compel the government to appeal every adverse ruling, even if wisdom counseled against doing so in particular cases, to avoid having one district court judge set the law for the entire nation.REF Finally, rather than leave the preclusive effect of a judgment adverse to the government to a case-by-case balancing of the equities associated with each lower court decision, given the uncertainty that such an approach would generate, the Court decided that a per se rule was necessary.REF Accordingly, the Court held unanimously that a party cannot make offensive collateral estoppel use of an adverse final judgment against the federal government.REF

Zbaraz distinguishes very practical lawsuits from academic debates. Zbaraz also makes it clear that a court may not enter judgment on an issue that is not in dispute between the parties. That being so, it should be immaterial whether that judgment embraces issues or people outside of the original dispute. The Court made that point in Hansberry v. Lee,REF holding that it is a violation of due process when a judgment binds a person who is not designated a party to the lawsuit outside the limited exception for class actions.REF When a court purports to do that, it is no longer deciding a case or controversy; it is exercising Congress’s power to make laws of general concern. But unlike Congress, the courts are not accountable to the people when they exercise legislative power. That choice is for Congress to undertake by passing a generally applicable “Law.”

Mendoza complements Zbaraz. Mendoza ensures that no one adverse judgment can foreclose the federal government from implementing a statute or operating a program in connection with individuals not named in the judgment. Mendoza also avoids the unseemly forum shopping and asymmetric development of the law that a contrary rule would encourage. Keep in mind that there are hundreds of federal district court judges, and institutional litigants have every incentive to find one to rule in their favor. Congress has the power to decide whether to overrule or modify the Mendoza decision, because Congress can change the rules of issue or claim preclusion for the federal courts. We believe now, as we have concluded previously, that it would be a mistake for Congress to change the Mendoza rule.REF But that would require Congress to legislate, to pass a “Law,” which it has not yet done.

The legal and policy rationales that the Court found compelling in Zbaraz and Mendoza apply in any case involving a universal injunction. Little could be added to the Court’s discussions in those cases to demonstrate why universal injunctions are inappropriate as a matter of law and unsound as a matter of policy. There is one point, however, that also needs to be made.

The ability to persuade a district judge to enter a nationwide injunction without certification of a nationwide class action exposes the federal judicial system to the criticism that it is susceptible to “judge shopping” to obtain “one ring to rule them all,” as we have previously noted.REF That problem is a serious one. “As a consequence of increased forum shopping and political gamesmanship, the increase in nationwide injunctions on highly politicized issues fuels the public’s perception that the courts themselves are politicized and that federal judges are political actors.”REF It also is likely to prove corrosive over time. “Inserting the judiciary into quintessentially political fights, even when there is a substantial legal issue to be decided on recognizably legal grounds, plainly risks the perception that judges base decisions on political preferences, or at least are affected by those preferences,” former Dean Ron Cass has warned.REF “When ‘judges in the “red state” of Texas halt Obama’s policies, and judges in the “blue state” of Hawaii enjoin Trump’s,’ it tests the limits of the public’s imagination to argue that the federal judiciary is impartial, nonpartisan, and legitimate.”REF

As we learned from the federal government’s actions during the COVID-19 pandemic, it can take very little to erode the trust gained over a lifetime of regulation, and once it is gone, it is exceptionally difficult to earn it back.REF As a result, even if all of the policy arguments in favor of and against nationwide injunctions were in equipoise, the need to avoid their politicking effect on the federal courts should tip the scales against their approval.

Conclusion

Neither the Constitution, nor the Judicial Code, nor common-law principles of issue or claim preclusion authorize a federal court to award relief to individuals who are not parties to a particular “Case” or “Controversy.” In fact, the Constitution implicitly prohibits any such practice by denying the judiciary the power to enter a judgment that is tantamount to a “Law,” which only Congress may pass, or to exceed the “Case” or “Controversy” limitations placed on the federal courts by granting nonparties injunctive relief.

Federal courts may—and should—supply complete relief to a victorious party, but that can be done without granting strangers the same judicially enforceable rights that a judgment provides to a successful litigant. Nationwide injunctions not only cross that line, but also prevent the federal government from enforcing an act of Congress, executive order, or agency rule against nonparties. Unless and until Congress endorses that practice, the federal courts should limit the reach of their judgments to only the parties to a lawsuit. The Supreme Court would need to overrule its unanimous decision (on this point) in Zbaraz and its unanimous decision in Mendoza to uphold a nationwide injunction like the ones that have been entered against the government. That is as unlikely as it would be unwise.

Paul J. Larkin is the John, Barbara and Victoria Rumpel Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. GianCarlo Canaparo is a Senior Legal Fellow in the Meese Center.

Appendix

Rule 65 of the Federal Rules of Civil Procedure provides as follows:

Rule 65. Injunctions and Restraining Orders

Currentness

(a) Preliminary Injunction.

(1) Notice. The court may issue a preliminary injunction only on notice to the adverse party.

(2) Consolidating the Hearing with the Trial on the Merits. Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial. But the court must preserve any party's right to a jury trial.

(b) Temporary Restraining Order.

(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

(2) Contents; Expiration. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk’s office and entered in the record. The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.

(3) Expediting the Preliminary-Injunction Hearing. If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order.

(4) Motion to Dissolve. On 2 days' notice to the party who obtained the order without notice—or on shorter notice set by the court—the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.

(c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.

(d) Contents and Scope of Every Injunction and Restraining Order.

(1) Contents. Every order granting an injunction and every restraining order must:

(A) state the reasons why it issued;

(B) state its terms specifically; and

(C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.

(2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise:

(A) the parties;

(B) the parties' officers, agents, servants, employees, and attorneys; and

(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

(e) Other Laws Not Modified. These rules do not modify the following:

(1) any federal statute relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee;

(2) 28 U.S.C. § 2361, which relates to preliminary injunctions in actions of interpleader or in the nature of interpleader; or

(3) 28 U.S.C. § 2284, which relates to actions that must be heard and decided by a three-judge district court.

(f) Copyright Impoundment. This rule applies to copyright-impoundment proceedings.