Nationwide Injunctions: Recent Legal Developments

Nationwide Injunctions: Recent Legal Developments

Legal Sidebari

Nationwide Injunctions:
Recent Legal Developments
December 2, 2021
On November 30, 2021, a federal district court in Louisiana entered an order that effectively suspended a
federal vaccine mandate for health care workers. The order prevented the federal government from
enforcing an Interim Final Rule of the Centers for Medicare & Medicaid Services (CMS) requiring many
employees of Medicare- and Medicaid-certified providers and suppliers to be vaccinated against
Coronavirus Disease 2019 (COVID-19). The court’s order, which effectively bars enforcement of the
CMS vaccine mandate with respect to all persons and entities, is an example of what some courts and
commentators call a nationwide injunction. Sometimes also called national injunctions, universal
injunctions, non-party injunctions, or even cosmic injunctions, nationwide injunctions have attracted
significant attention from legal commentators and policymakers in recent years. Critics of nationwide
injunctions object to court orders—sometimes by a single district court judge—that halt an entire federal
policy. Defenders counter that such injunctions provide an appropriate check on the political branches.
A recent CRS report provides in-depth analysis of the debate regarding nationwide injunctions. This
Legal Sidebar provides a shorter introduction to nationwide injunctions, briefly discusses selected recent
nationwide injunction cases, then closes with key considerations for Congress related to nationwide
injunctions.
What Is a Nationwide Injunction?
Injunctions, including nationwide injunctions, are a form of equitable relief—a court-ordered remedy
providing relief other than money damages—by which a court either requires an entity to take a certain
action or forbids an entity from taking a certain action.
The term “nationwide injunction” is not defined in any federal statute, court rule, or majority decision of
the Supreme Court, but the term is used fairly consistently in federal court decisions and legal
commentary. Courts and commentators generally use the term “nationwide injunction” to refer to an
injunction against the government that prevents the government from implementing a challenged law,
regulation, or other policy with respect to all persons and entities, even those not before the court in the
litigation.
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A “nationwide injunction” is not simply an injunction that applies anywhere in the country. Many court
orders granting injunctive relief apply anywhere in the United States (or even more broadly) but do not
meet the criteria outlined above, and some nationwide injunctions apply to conduct that does not occur in
all fifty states. For example, some federal environmental regulations apply only in certain areas of the
country; an injunction completely barring enforcement of such a regulation would fit the definition of a
nationwide injunction. The defining attribute of a nationwide injunction is not the geographic scope of the
injunction, but rather the entities to which it applies.
While discussion of nationwide injunctions often focuses on injunctions against the federal government,
some commentators draw comparisons between nationwide injunctions against the federal government
and injunctions against state governments fully barring enforcement of certain state laws or policies.
Recent Nationwide Injunction Litigation
There is significant scholarly debate around the historical origins of nationwide injunctions, but legal
commentators generally agree that no such injunctions issued in the early years of the Republic, and that
they have become more common in recent years. To illustrate, as of February 2020, the Department of
Justice had identified 12 nationwide injunctions issued during the presidency of George W. Bush, 19
issued during Barack Obama’s presidency and 55 such injunctions issued against the Trump
Administration. The first nationwide injunction against the Biden Administration issued within a week of
President Biden’s inauguration.
Federal courts have issued nationwide injunctions affecting many areas of federal law and policy,
including immigration, environmental law, health care regulation, and civil rights. During the Trump
Administration, litigation involving nationwide injunctions reached the Supreme Court in challenges to
the “travel ban” barring foreign nationals from certain countries from entering the United States and the
“public charge” rule rendering inadmissible to the United States foreign nationals deemed likely to
receive certain public benefits. A majority of the Court declined to address the legality of nationwide
injunctions in those cases. Key examples of nationwide injunction cases from the Biden Administration
include the following.
COVID-19 Vaccine Mandates. On November 4, 2021, CMS released an Interim Final Rule (IFR) that
requires specified Medicare- and Medicaid-certified providers and suppliers to establish and enforce a
vaccination policy for all staff who directly provide care, treatment, or other services for any covered
facility or its patients. Subject to legally mandated exceptions, the policy must require all eligible staff to
receive the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine by December 6,
2021, and to complete their vaccination series by January 4, 2022. At least 24 states sued to challenge the
IFR. On November 29, 2021, a Missouri district court issued an order barring enforcement of the CMS
vaccine mandate in ten states that had filed suit in that case. On November 30, 2021, a district court in
Louisiana entered an order forbidding the federal government from enforcing the CMS vaccine mandate
in any other state. The court specified that the order applied “nationwide, except for the . . . ten states
[that] are already under a preliminary injunction order dated November 29, 2021, out of the Eastern
District of Missouri.” The Louisiana court explained that its order reached beyond the fourteen plaintiff
states before the court because “a nationwide injunction is necessary due to the need for uniformity” and
“there are unvaccinated healthcare workers in other states who also need protection.”
In separate litigation, multiple parties have challenged an emergency temporary standard of the
Occupational Safety and Health Administration (OSHA) requiring employers with 100 or more
employees to implement certain COVID-19 vaccination and testing policies. The U.S. Court of Appeals
for the Fifth Circuit stayed the OSHA vaccine mandate and ordered OSHA to “take no steps to implement
or enforce the Mandate until further court order,” but did not expressly enter a nationwide injunction. The
Judicial Panel on Multidistrict Litigation has since consolidated all challenges to the OSHA vaccine

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mandate in the Sixth Circuit, and the Sixth Circuit court is considering whether to lift the stay. A previous
Legal Sidebar discusses litigation regarding the various COVID-19 vaccine mandates.
Migrant Protection Protocols (MPP). Originally announced in 2018 and also known as the “Remain in
Mexico” policy, the MPP allowed Customs and Border Protection to require many who arrived at the
southern border seeking asylum or related protections to wait in Mexico while U.S. immigration courts
processed their cases. After President Biden took office, the Secretary of Homeland Security decided to
terminate the MPP. That decision was challenged in court, and on August 13, 2021, the district court
vacated the Secretary’s decision and issued a nationwide injunction requiring implementation of the MPP.
The Supreme Court declined to stay that nationwide injunction in a summary order. Since the district
court’s order took effect, the Administration is now required to implement the MPP nationwide, though it
retains substantial discretion over how to administer the MPP and other authorities for processing
migrants at the border.
Loan Forgiveness. Congress enacted the American Rescue Plan Act of 2021 on March 11, 2021. Section
1005(a)(1) of the Act authorized certain loan modifications and payments for “socially disadvantaged”
farmers and ranchers. The Secretary of Agriculture and the Administrator of the Farm Service Agency
interpreted the provision to apply to members of certain racial and ethnic minorities, and white farmers
and ranchers from multiple states sued, arguing that the program unconstitutionally granted benefits based
on race. On June 10, 2021, a federal district court in Wisconsin issued a nationwide temporary restraining
order against the policy. The court held that a nationwide injunction was necessary to provide complete
relief to the plaintiffs, and that a narrower injunction would be unworkable. On June 23, 2021, another
federal district court in Florida issued a nationwide injunction barring enforcement of the policy. Several
cases involving the loan forgiveness policy remain pending as of December 2021.
Oil and Gas Leases. On January 27, 2021, President Biden issued an executive order entitled “Tackling
the Climate Crisis at Home and Abroad,” which, among other things, directed the Secretary of the Interior
to pause new oil and natural gas leases on public lands or in offshore waters pending review of federal oil
and gas permitting and leasing practices in light of potential climate impacts. A number of states
challenged the pause. On June 15, 2021, a district court judge in Louisiana issued a nationwide injunction
against the pause, explaining that the pause affected public lands and offshore waters across the nation
and citing the need for a uniform policy. The federal government appealed the injunction on August 16,
2021, and has proceeded with lease sales while the appeal remains pending.
The Legal Debate over Nationwide Injunctions
Nationwide injunctions have generated a large volume of legal and historical debate in recent years. The
legal debate primarily concerns whether federal courts have the constitutional authority to issue such
injunctions. Article III of the Constitution requires that anyone who brings suit in federal court must have
standing—that is, the plaintiff must have a personal and concrete interest in the litigation rather than a
general policy disagreement. Several commentators have argued that many nationwide injunctions are
inconsistent with Article III standing principles because such injunctions alter the government’s rights and
obligations with respect to everyone, including persons who are not parties to the litigation and who might
not be able to satisfy the requirements for standing. Some defenders of nationwide injunctions dispute
that narrow conception of standing and argue that the federal courts’ authority is not confined to the bare
minimum required to resolve concrete disputes between specific parties.
Constitutional analysis of a nationwide injunction may depend on the specific facts of the case. Courts
offer differing reasons for issuing nationwide injunctions. Sometimes a court expressly extends the relief
granted beyond what is required to protect the plaintiffs in order to protect persons not before the court
who may have trouble bringing their own claims, or simply because the court finds that a challenged
policy is plainly unlawful. Sometimes courts determine that it is not feasible as a practical matter to tailor

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relief narrowly to reach only the plaintiff. In other cases, courts find that nothing less than a nationwide
injunction will fully protect the rights of the plaintiff. When a plaintiff before the court has standing to sue
and a nationwide injunction is the only means to provide complete relief to that plaintiff, most
commentators (including some critics of nationwide injunctions) agree that such an injunction does not
raise Article III standing concerns, even if it incidentally benefits others. Scholars still debate how
frequently a nationwide injunction is truly necessary to provide complete relief to the parties.
Legal inquiries beyond constitutional questions remain regarding nationwide injunctions. For instance,
there is an open question whether nationwide injunctions conflict with other aspects of litigation
procedure, including class actions under Federal Rule of Civil Procedure 23. Courts and commentators
also disagree on whether nationwide injunctions support or detract from ideals of fairness, efficiency, and
good governance. Some debate how nationwide injunctions fit within the role of the judiciary: some
critics contend that nationwide injunctions allow courts to usurp the legislative role, improperly contribute
to the politicization of the judiciary, or promote forum shopping; defenders respond that nationwide
injunctions are an appropriate judicial check on the political branches. Finally, some commentators argue
that nationwide injunctions may be more or less appropriate in certain contexts, depending on factors such
as the substantive claims involved in a case or whether an injunction issues from a trial-level or appellate
court.
A majority of the Supreme Court has not expressly ruled on the legality of nationwide injunctions. Justice
Thomas and Justice Gorsuch have each authored separate opinions raising constitutional and other
concerns related to nationwide injunctions and urging the Court to limit the practice. By contrast, Justice
Sotomayor penned a dissent in which she argued that a nationwide injunction was “necessary to provide
complete relief to the plaintiffs” in the case at bar. As a practical matter, courts at all levels of the federal
judiciary, including the Supreme Court, have issued nationwide injunctions. While the Supreme Court
might consider the issue in the future, the status quo suggests that current law does not strictly limit
injunctive relief to the parties in each case.
Possible Legislative Responses to Nationwide Injunctions
As nationwide injunctions have attracted increased public notice, Congress has also turned its attention to
the practice, and two congressional committees have held hearings on the topic. As Congress considers
possible reforms related to nationwide injunctions, the first question that may arise is whether legal
changes in this area are warranted. In light of the legal and policy issues outlined above, a number of
commentators have called for reform of nationwide injunctions. Others support the status quo, arguing for
example that nationwide injunctions provide a valuable tool for courts to prevent overreach by the
political branches. Still others caution that reforms may have unintended consequences that affect
established judicial practices.
If Congress determines that reform of nationwide injunctions is appropriate, it may also consider which
branch of government is best situated to implement any changes. Either Congress or the judicial branch
has the constitutional power to change the law or practice related to nationwide injunctions. For instance,
the Supreme Court could consider whether some or all nationwide injunctions raise constitutional issues,
or the Court could articulate a new legal test for courts to apply when ruling on requests for nationwide
injunctions. Some who advocate for reform of nationwide injunctions argue that the courts should be
primarily responsible for such changes because they have the greatest expertise in managing judicial
procedure and crafting equitable remedies. On the other hand, the legislature also enjoys ample
constitutional authority to establish and structure the lower federal courts, including by making rules
governing court proceedings. Congress could not alter any applicable constitutional limits, but it could
enact legislation to limit the jurisdiction of the federal courts to issue nationwide injunctions or impose
special procedures in cases involving nationwide injunctions. Furthermore, either Congress or the
Supreme Court could establish new court procedural rules governing requests for nationwide injunctions.

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If Congress decides that a legislative response is appropriate, it would face consideration of both what
substantive regulations to impose and how to define “nationwide injunctions.” Some recent legislative
proposals have sought to implement a comprehensive ban on nationwide injunctions. A ban on nationwide
injunctions might reduce the ability of federal courts to provide complete relief to the parties before them.
Congress could include an exception to a ban on nationwide injunctions, allowing such injunctions to
issue only when required to provide complete relief to the parties. Some courts already consider the
principle of complete relief in deciding whether to issue nationwide injunctions, but there is debate about
whether that principle imposes a meaningful limitation on courts’ injunctive authority.
As an alternative to banning nationwide injunctions, Congress (or the Supreme Court) could impose
additional substantive requirements in nationwide injunction cases. Congress could impose such
requirements by legislation, the Supreme Court could establish them through case law, or either Congress
or the Court could amend the Federal Rules of Civil Procedure.
A variety of reforms would be possible by these means. For example, Congress could establish a
presumption against granting nationwide relief or could require specific findings before a court may issue
a nationwide injunction. Congress could also channel all suits seeking nationwide injunctions to a
particular forum, require district courts to conduct separate hearings on the appropriate scope of
injunctive relief in cases seeking nationwide injunctions, mandate that a three-judge district court hear
any request for a nationwide injunction, or allow direct appeal to the Supreme Court in nationwide
injunction cases. Finally, Congress could explore reforms that might reduce incentives for litigants to seek
nationwide injunctions, such as changing the procedures related to class actions to make class actions a
more appealing option for plaintiffs who might otherwise file non-class suits seeking broad injunctive
relief.

Author Information

Joanna R. Lampe

Legislative Attorney

Disclaimer
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to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
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