Nationwide Injunctions? Only if the Supreme Court Has Spoken – WSJ

So what s the answer? Under current rules, district courts can issue nationwide injunctions even in cases where the judge is announcing brand-new law or technically, not even announcing it but trying it out. To issue a nationwide preliminary injunction, the judge need only find a likelihood that he will rule in the plaintiff s favor.

This lenient standard is the root cause of the nationwide-injunction problem. To solve that problem, all the Supreme Court has to do is hold that district courts can issue nationwide injunctions only if the government is violating established law clear, controlling, on-point Supreme Court precedent holding that what the government is doing is unlawful.

This would knock out the lion s share of nationwide injunctions coming out of the lower courts. For example, the district judges who have enjoined Mr. Trump s so-called trans ban in the military didn t find a violation of clearly established law, because there isn t any. They made new law on several important issues whether trans people are a suspect class, where that classification triggers heightened scrutiny, and whether Mr. Trump s order furthered substantial state interests. Under a clearly-established law standard, these injunctions would never have been issued.

Similarly, nationwide injunctions against the anti-DEI executive order and against Department of Government Efficiency access to Social Security Administration records involved novel questions of law and wouldn t have issued under this standard. On the other hand, there is clearly established case law on birthright citizenship, at issue in the case the high court is considering. In Hintopoulos v. Shaughnessy (1957), the justices said that a U.S.-born child of two aliens who had remained in the country illegally is, of course, an American citizen by birth. If the justices now disagree, only they can overturn this precedent.

District courts can announce new law and do so all the time. But they shouldn t be able to govern the entire country on that basis. They should only be able to rule for the parties before them.

via www.wsj.com

Jed Rubenfeld.

Another good idea from Professor Rubenfeld, proving once again not everything that comes out of Yale Law School is wicked.