Nationwide injunctions: A power grab by courts

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One federal district court judge should not be able to halt a federal government policy for the entire country. Yet that is exactly what happened when Judge Kathryn Kimball Mizelle, in Tampa, Fla., ended the mandate for masks on mass transportation.

News reports focused on Mizelle's "not qualified" rating by the American Bar Association and her astoundingly narrow interpretation of the powers of the Centers for Disease Control and Prevention that, if upheld on appeal, will in the future leave the agency without authority to act against communicable diseases.

What seems to have escaped attention is the urgent need to eliminate the power of a single federal judge to issue a nationwide injunction to stop the federal government from enforcing a law or policy as to anyone in the United States — regardless of whether a broad injunction is necessary to provide relief for the plaintiff in the case.

This is not a partisan issue. There have been nationwide injunctions issued against policies created by both Democratic and Republican administrations. Critics of such injunctions include staunch conservatives, like Justice Clarence Thomas, who called them "legally and historically dubious."

Nationwide injunctions impose restrictions on people who were not defendants in the lawsuit at hand — and in doing so, these rulings expand the power of the district courts beyond all reason.

No statute or Supreme Court decision authorizes nationwide injunctions. It is a power that federal courts have claimed as part of their authority to prohibit unconstitutional or illegal federal government actions. Ordinarily, one district court judge has no legal authority to bind other judges, just as one federal court of appeals has no authority to bind courts of appeals elsewhere in the country. Yet that is exactly the effect of a nationwide preliminary injunction: Mizelle issued a mask ruling that applied to the entire United States.

Of course, there is nothing to stop another federal judge from hearing a case on the same issue, coming to an opposite conclusion and issuing a nationwide injunction that would conflict with the one already in place. That would put the federal government in the impossible position of deciding which ruling to follow.

Nationwide injunctions also encourage forum shopping. A party wanting to stop a federal policy for the whole country will file the lawsuit in a district court where the judges are most likely to be receptive. Not surprisingly, challenges to policies of Democratic administrations — such as the Affordable Care Act and Deferred Action for Childhood Arrivals — were filed in a federal district court in Texas with very conservative justices. And challenges to the policies of former President Donald Trump were often filed in federal courts in California, where there was a greater chance of a liberal judge being assigned to the case.

The Supreme Court could end this practice by making it clear that a federal district court judge's ruling has no effect outside of that district and that a court of appeals' decision has no effect outside of its circuit.

Alternatively, Congress could enact legislation restricting the power of the federal district courts to issue nationwide injunctions. Congress has broad authority to establish and structure the lower federal courts, including by making rules governing court proceedings.

Not surprisingly, when there is a Democratic president, conservative litigants seek nationwide injunctions to halt federal policies. And the reverse occurs when there is a Republican president, with progressives turning to the federal courts. Regardless of the politics, it makes no sense to give one federal trial court judge the power to make a rule binding for the entire country.