U.S. GOVERNMENT PUBLISHING OFFICE

32–475 WASHINGTON : 2018

THE ROLE AND IMPACT OF NATIONWIDE 

INJUNCTIONS BY DISTRICT COURTS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COURTS, INTELLECTUAL PROPERTY, 

AND THE INTERNET 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

NOVEMBER 30, 2017 

Serial No. 115–48 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 


lotter on DSKBCFDHB2PROD with HEARING
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DESANTIS, Florida 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

MARTHA ROBY, Alabama 

MATT GAETZ, Florida 

MIKE JOHNSON, Louisiana 

ANDY BIGGS, Arizona 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia 

THEODORE E. DEUTCH, Florida 

LUIS V. GUTIE ́ RREZ, Illinois 

KAREN BASS, California 

CEDRIC L. RICHMOND, Louisiana 

HAKEEM S. JEFFRIES, New York 

DAVID CICILLINE, Rhode Island 

ERIC SWALWELL, California 

TED LIEU, California 

JAMIE RASKIN, Maryland 

PRAMILA JAYAPAL, Washington 

BRAD SCHNEIDER, Illinois 

SHELLEY HUSBAND, Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

DARRELL E. ISSA, California, Chairman 

DOUG COLLINS, Georgia, Vice-Chairman 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

TRENT FRANKS, Arizona 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

RON DESANTIS, Florida 

MATT GAETZ, Florida 

ANDY BIGGS, Arizona 

JERROLD NADLER, New York 

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia 

THEODORE E. DEUTCH, Florida 

KAREN BASS, California 

CEDRIC L. RICHMOND, Louisiana 

HAKEEM S. JEFFRIES, New York 

ERIC SWALWELL, California 

TED LIEU, California 

BRAD SCHNEIDER, Illinois 

ZOE LOFGREN, California 

STEVE COHEN, Tennessee 

LUIS GUTIE ́ RREZ, Illinois 


lotter on DSKBCFDHB2PROD with HEARING
(III) 

C O N T E N T S 

NOVEMBER 30, 2017 

OPENING STATEMENTS 

Page 

The Honorable Darrel Issa, California, Chairman, Subcommittee on Courts, 

Intellectual Property, and the Internet .............................................................. 1 

The Honorable John Conyers, Jr., Michigan, Ranking Member, Committee 

on the Judiciary ...................................................................................................

The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the Judiciary ......................................................................................................................... 11

WITNESSES 

Professor Samuel Bray, Professor of Law, UCLA School of Law 

Oral Statement ..................................................................................................... 4 

Professor Amanda Frost, Professor of Law, American University Washington 

College of Law 

Oral Statement ..................................................................................................... 6 

Professor Michael T. Morley, Associate Professor of Law, Dwayne O. Andreas 

School of Law, Barry University 

Oral Statement ..................................................................................................... 8 

Mr. Hans von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, Institute for Constitutional Government, The Heritage 

Foundation 

Oral Statement ..................................................................................................... 10 


lotter on DSKBCFDHB2PROD with HEARING

lotter on DSKBCFDHB2PROD with HEARING
(1) 

THE ROLE AND IMPACT OF NATIONWIDE 

INJUNCTIONS BY DISTRICT COURTS 

THURSDAY, NOVEMBER 30, 2017 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY AND THE

INTERNET

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The subcommittee met, pursuant to call, at 2:00 p.m., in Room 

2141, Rayburn House Office Building, Hon. Darrell Issa [chairman 

of the subcommittee] presiding. 

Present: Representatives Issa, Goodlatte, Chabot, DeSantis, 

Gaetz, Biggs, Nadler, Johnson of Georgia, Lieu, and Schneider. 

Staff Present: Joe Keeley, Chief Counsel; Carlee Tousman, Clerk; 

and Jason Everett, Minority Counsel. 

Mr. ISSA. The subcommittee will come to order. The Subcommittee on the Courts, Intellectual Property and the Internet 

will please come to order. Without objection, the chair is authorized 

to declare a recess of the subcommittee at any time. 

I would like to welcome our panel here today on the role and impact of nationwide injunctions by district courts. In order to observe the fact that members are still coming back from the vote, 

I am going to slightly modify, and we are going to do the oath before opening statements. 

So, I would like to now welcome our panel and ask you to please 

rise to take the oath and raise your right hand. 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth? Thank you. Please be seated. 

Let the record indicate that all witnesses answered in the affirmative. And as we wait for other members to arrive, I will introduce 

our panel. 

Professor Samuel Bray is Professor of Law at UCLA School of 

Law, a fellow Californian for now. Professor Amanda Frost, Professor of Law at American University, Washington College School 

of Law. 

Professor Michael Morley is an Associate Professor of Law at 

Dwayne O. Andreas School of Law at Barry University. 

And my favorite, and returning guest for us, Hans von 

Spakovsky—I did not major in that but thank you—is the manager 

of Election Law Reform Initiative and Senior Legal Fellow at the 


lotter on DSKBCFDHB2PROD with HEARING
2 

Institute for Constitutional Government and the Heritage Foundation. 

Again, I want to thank you all for coming, and I will now recognize myself for an opening statement. 

We are here today to hear from witnesses on an infrequent, but 

more frequent than in the past, problem of nationwide injunctions 

that deprive nonparties from having an input into the judicial process. Whether or not one agrees with the outcome of a particular 

case, nationwide injunctions clearly give, for a time, the power of 

the entire Supreme Court to make a law of the land in a case and 

effectively set a precedent or bar from similar cases. 

No two judges are alike, and in most cases, most decisions by a 

district court judge affect only the parties withstanding in that case 

and are subject to a review that only covers the circuit, or a small 

portion of the United States. But in the case of nationwide bans or 

injunctions, we find ourselves with a specific case with specific 

characteristics being used to broadly bind the entire Nation. 

If that were not bad enough, we have a bigger problem. And that 

is, at least in a few cases, we have multiple injunctions or decisions 

not to enjoin that conflict each other. What are we to do? 

Are we to assume that one district judge in one circuit can overturn an injunction of another, since one has a nationwide injunction? And if the next rules that in a similar case, an injunction 

should not be granted, does one district judge undo another? I am 

sure our witnesses today will make it clear that that would not, 

and should not, happen. 

It does not happen in ordinary cases, even in a situation in 

which, for example, the first circuit in Maine and the ninth circuit 

in California were to rule completely differently. They do not bind 

the rest of the Nation; only the Supreme Court can do that. 

So, as we look at the problem today and this testimony, I hope 

we will all recognize this is a problem in need of a solution. One 

that should be narrowly crafted, solve the problem, and not deny 

the appropriate remedies of parties when they come before the 

court. And with that, we will stand in a short recess. 

[The prepared statement of Mr. Issa follows:] 

[Recess.] 

Mr. ISSA. The subcommittee will come to order. It is now my 

pleasure to recognize the gentleman from New York for his opening 

statement. 

Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, the nationwide injunctions are a sometimes imperfect but often essential 

equitable remedy in the Federal courts. When the Federal Government acts in violation of the Constitution or breaks the law on a 

national scale, a nationwide injunction may be the only logical and 

far remedy. That does not mean that the courts should not exercise 

caution and care when determining the proper scope of an injunction. 

But to suggest that a nationwide injunction should be prohibited 

in every circumstance, as some people argue, seems like a gross 

overreaction to whatever perceived flaws this tool may have. Whenever a district court issues a nationwide injunction blocking a Federal Government policy, the quotes in the next day’s newspapers 

are all too predictable. 


lotter on DSKBCFDHB2PROD with HEARING
3 

Proponents of that policy will hail the decision as reasonable and 

necessary, while supporters of the policy will claim it was a vast 

overreach by a single activist Federal judge. When the party in 

power changes hands and the roles are reversed, those who once 

decried the use of nationwide injunctions will suddenly see the virtues of such a remedy. And those who supported their use previously, will now consider it a fatally flawed travesty of justice. 

We should not examine the role and impact of nationwide injunctions through a partisan lens based on our preferred policy outcomes. We should instead focus on what factors the court should 

consider when determining appropriate scope and substance of an 

injunction in any given case. 

Critics of nationwide injunctions typically raise four major objections. First, they argue them as a matter of principle. A single 

judge should not be able to bind the entire Nation with his or her 

decision. This is despite the fact that Article III of the Constitution 

invests Federal judges with the ‘‘judicial power of the United 

States,’’ with absolutely no restriction on the geographic reach of 

their decisions. 

They also view the ability to seek a nationwide injunction as an 

invitation to plaintiffs to engage in forum shopping, a practice that 

is certainly not limited to the context of nationwide injunctions. 

Concerns have also been expressed about the potential for confusion if multiple courts issue conflicting orders with a nationwide 

impact. Fortunately, courts generally avoid this problem by placing 

a stay on the conflicting order, pending resolution by the appellate 

courts. 

Finally, some scholars have noted that the legal system depends 

on issues percolating throughout the courts. The Supreme Court 

and other courts of appeal can benefit from studying the various 

opinions and analyses offered by lower court judges who have considered the question at hand. When a district court issues a nationwide injunction, it may short circuit this process and stunt the development of the law. 

For certain types of cases, however, like immigration, it is simply 

not practical to apply the law differently in different parts of the 

country. For example, when President Trump ordered his unconstitutional Muslim travel ban, it would have made no sense if the 

courts had ruled that it should apply differently throughout the 

United States. 

If people from the banned countries were permitted to enter the 

United States in California because of a limited injunction, but 

were prohibited from entering in Texas because the court upheld 

the ban there, where it had not ruled on it, an immigrant can always enter in California and then travel to Texas. A nationwide injunction was the only logical solution in that case. 

Whatever legitimate concerns may be raised about nationwide injunctions, it is also important to note that they offer several benefits as well. In some instances, like many immigration and environmental cases where the impact of an order cannot be neatly 

cabined off, broad injunctions are often the only way—the only 

way—to ensure that the plaintiffs receive the complete relief that 

the courts require and that the plaintiffs legally deserve. 


lotter on DSKBCFDHB2PROD with HEARING
4 

Nationwide injunction also provides uniformity in the law, and 

they ensure that similarly situated individuals will receive equal 

treatment under the law. This includes providing equal justice 

across geographic regions and treating plaintiffs and nonplaintiffs 

alike. Doing so also protects individuals who are unable to bear the 

cost of litigation from being disadvantaged in relation to those who 

can afford to seek injunctive relief. 

This principle can be especially important in certain civil rights 

litigation in which it would be unfair for one person to have a fundamental constitutional right vindicated, while others who cannot 

bear the costs and burdens of litigation would continue to have 

their rights violated. 

The court system itself also benefits from nationwide injunctions 

by avoiding a flood of duplicative litigation on the same issue over 

and over again. If courts could only issue injunctions with respect 

to the parties to a case, or if they were required to restrict the impact of their decisions through a particular geographic region, 

many other plaintiffs would no doubt rush to the courthouse to 

seek similar relief. 

Nationwide injunctions are obviously not appropriate in all circumstances, and there are good reasons for courts to act cautiously 

before issuing such a broad remedy, but we should not completely 

dismantle this important tool and risk depriving Americans of the 

justice they deserve. 

I look forward to examining these and other issues with our witnesses today, and I yield back the balance of my time. 

[The prepared statement of Mr. Nadler follows:] 

Mr. ISSA. I thank the gentleman for yielding back. We now go to 

our witnesses. I would commend all of you that we will be having 

votes and we are going to try to go through this in an expeditious 

fashion, so we would like to get to questions as soon as possible for 

our panel. With that, of course, observe the 5-minute rule as close 

as you can. Your entire statements will be placed in the record. 

Professor Bray, you are first. 

STATEMENTS OF SAMUEL BRAY, PROFESSOR OF LAW, UCLA 

SCHOOL OF LAW; AMANDA FROST, PROFESSOR OF LAW, 

AMERICAN UNIVERSITY, WASHINGTON COLLEGE OF LAW; 

MICHAEL MORLEY, ASSOCIATE PROFESSOR OF LAW, 

DWAYNE O. ANDREAS SCHOOL OF LAW, BARRY UNIVERSITY; 

AND HANS VON SPAKOVSKY, MANAGER, ELECTION LAW REFORM INITIATIVE AND SENIOR LEGAL FELLOW, INSTITUTE 

FOR CONSTITUTIONAL GOVERNMENT, THE HERITAGE 

FOUNDATION 

STATEMENT OF SAMUEL BRAY 

Mr. BRAY. I am honored to be invited to testify. My remarks will 

focus on the problems caused by the national injunction and possible solutions. The national injunction is a remedy that did not 

exist for the first 170 years of the Federal courts. No change in 

legal authority made it possible; no amendment, no statute, no big 

case. It was an accidental development starting in the 1960s and 

1970s, and it remained fairly obscure until less than 3 years ago. 


lotter on DSKBCFDHB2PROD with HEARING
5 

At that point, it was weaponized by Republican state attorneys 

general to stop major Obama administration programs. Now, turnabout is fair play. In other words, whether you are Democrat or a 

Republican, sometime in the last 3 years your ox has been gored 

by the national injunction. 

My hope is that this bipartisan pain offers an opportunity. We 

do not have to be distracted by the latest national injunction. We 

can take longer view. We can get the law right. 

I want to start with a definitional point. What makes the national injunction distinctive is not its breadth. It is not about special extent or its being nationwide. That is a misconception—it is 

one reason I do not call it a nationwide injunction. 

What makes this remedy novel and dangerous is that a court is 

controlling how the government defendant acts toward people who 

are not parties to the case. Instead of letting each person bring his 

or her own case, or instead of letting a class of plaintiffs bring their 

own case. 

This remedy lets one plaintiff sue and get an injunction on behalf 

of everyone. These are suits against the National Government— 

that is why we can call this remedy the national injunction. Or we 

can call it a universal injunction. The point is not about geographic 

scope. It is that courts are giving remedies to nonparties. 

Now, what are the problems with the national injunction? I will 

list several. Some of these have been alluded to in Ranking Member Nadler’s opening statement. First, rampant forum shopping. 

And this is not like ordinary forum shopping. It only takes a single 

win to control the Federal Government everywhere, so you can 

shop until the statute drops. 

Second, there is a risk of directly conflicting injunctions, with two 

district judges trying to move the entire country in opposite directions. We have avoided that so far, but there was a close call near 

the end of the Obama administration. Third, there is the effect on 

decisionmaking by the Supreme Court. The justices typically wait 

to grant cert on a question until there is a circuit split. Judge 

Leventhal, formerly of the D.C. Circuit, used a metaphor that reminds me of making coffee. The justices want an issue to percolate 

through the Court of Appeals. 

But national injunctions stop the percolation. They put us in a 

world where the Supreme Court has to decide cases faster, with 

less evidence, with fewer contrary opinions- a recipe for bad judicial decisionmaking. 

Next, the national injunction is an end-run around class action 

requirements. Plaintiffs can bring a class action for injunctive relief, but only if they meet certain requirements that are meant to 

ensure effective representation and fairness to everyone in the 

class. But there is a problem. Why does that class action even 

exist, if plaintiffs can get the same remedy without meeting any of 

the class requirements by seeking a national injunction? 

Finally, and most important, there is a fundamental constitutional problem. Article III gives the Federal courts the judicial 

power. That is a power to decide cases and controversies. A power 

to decide cases for particular parties. It is not a power to decide 

questions and give remedies for people who are not parties. That 

is why for 170 years there were no national injunctions from FedVerDate Sep 11 2014 01:07 Oct 25, 2018 Jkt 032475 PO 00000 Frm 00009 Fmt 6633 Sfmt 6602 E:\HR\OC\A475.XXX A475

lotter on DSKBCFDHB2PROD with HEARING
6 

eral courts, because the Federal courts recognized that giving remedies to nonparties would go beyond the judicial power. 

So, what should be done about the national injunction? First, the 

Federal courts could repudiate it. They broke it, they should fix it. 

But so far, the Supreme Court has failed to act. 

Second, the Advisory Committee on the Federal Rules of Civil 

Procedure could make a change. But the committee recently declined to do so. Third, there could be a statute. Starting with the 

Judiciary Act of 1789, Congress has not hesitated to define the jurisdiction of the Federal judiciary. Indeed, the Constitution itself 

explicitly gives this power to Congress. The need for Congress to 

exercise it is acute. 

I urge the drafting of legislation that would restore the traditional practice of injunctions protecting only the parties. The core 

language could be a simple prohibition. The following sentence 

would suffice: ‘‘a court of the United States shall not enjoin the enforcement of a statute or regulation as against a nonparty.’’ 

Our system is designed to get to the right legal answer, but 

through precedent. It is slow, it is messy, not through the lightning 

strike of a single Federal judge deciding a question for the whole 

country. 

[The prepared statement of Mr. Bray follows:] 

Mr. ISSA. Thank you. Professor Frost. 

STATEMENT OF AMANDA FROST 

Ms. FROST. Thank you, Mr. Chairman, Ranking Member Mr. 

Nadler, and members of the subcommittee for holding a hearing on 

this important topic today. I am a Professor of Law at American 

University Washington College of Law where I teach and write in 

the fields of civil procedure, constitutional law, and immigration 

law. 

As both Professor Bray and Professor Morley have stated in their 

written testimony, determining the proper scope of a national injunction is not a partisan issue. Over the last few years, we have 

seen national injunctions entered to put a stop to President 

Obama’s initiatives and programs, and we have seen in the last 

year national injunctions put in place to put a stop to President 

Trump’s initiatives and programs. 

Nationwide injunctions come with both costs and benefits, and 

for that reason it is inappropriate for a Federal district court to 

enter a nationwide injunction without seriously considering those 

costs and benefits. But it would also be a mistake to take the nationwide injunction off the table as a remedy for a district court, 

at least in certain cases. 

First and foremost, in some cases nationwide injunctions are essential to provide complete relief to the plaintiffs. And this is particularly true in immigration cases where it often would be impossible to give the plaintiff the relief they are requesting. 

So, for example, the State of Texas sued, challenging President 

Obama’s initiative to grant deferred action to undocumented immigrants all over the United States, and they asked for a nationwide 

injunction. And their argument about why it needed to be nationwide was that if President Obama was allowed to give deferred action to all the undocumented immigrants living outside of Texas 


lotter on DSKBCFDHB2PROD with HEARING
7 

then, of course, those individuals could move into Texas, causing 

Texas the very same injury it was trying to avoid. 

Now, I disagree with some of Texas’ legal arguments. But if you 

agree that they were injured by this initiative, then I think you 

have to agree, they needed a nationwide injunction to correct and 

remedy that injury. 

Likewise, the States that have sued to enjoin President Trump’s 

executive order, putting in place a travel ban against entry by certain foreign nationals, have argued that that ban injures them economically, injures their educational institutions and their employers by making it impossible for them to recruit and retain employees, students, and faculty. 

Now, without a complete and total injunction of that travel ban, 

their injuries would not be remedied. Nor would it be possible to 

geographically restrict such an injunction because we can imagine 

what would happen. If you put an injunction in place for the travel 

ban as to only one State, of course the immigrants will come into 

that State and then travel elsewhere. And in fact, that is exactly 

what happened in the travel ban litigation. 

Within a few days after President Trump issued the Executive 

order with the travel ban, a district court in Massachusetts enjoined the travel ban as to people flying into Logan Airport in Boston, Massachusetts. So, what happened is many immigrants who 

wanted to come to the United States who were affected by the ban 

changed their flights to fly into Boston, Massachusetts, and then 

travel to other States. 

Nothing short of a nationwide ban was going to be effective in 

any way, shape, or form in that litigation. The same problems that 

I just described plaguing immigration also apply to cases involving 

environmental harm, such as air pollution or water pollution, and 

cases involving defective products or endangered animals. All of 

which the plaintiff’s injury could not be relieved unless there was 

a nationwide injunction. 

And finally, as Professor Morley has also written, such as rights 

at issue in redistricting and desegregation cases, required nationwide injunctions extending beyond the plaintiffs in order to give 

the plaintiffs complete relief. 

Another important reason to allow for nationwide injunctions is 

that they protect rule-of-law values, such as ensuring the uniform 

and consistent interpretation of Federal law, which in turn ensures 

that similarly situated people are treated alike. This is a very important value in our legal system. I think it is what motivated the 

Supreme Court to partially uphold the nationwide injunction in the 

travel ban case. It just seems unfair and arbitrary to have a law 

apply to some but not all. 

It is also particularly important in areas such as immigration to 

speak with one voice. I mentioned previously the geographically restricted injunction issued by a Massachusetts district court in the 

travel ban case. That created great confusion and chaos, not only 

among immigration officials in the United States, but among all 

the foreign citizens who had to reinterpret and apply that law, and 

other actors, such as airline personnel, who also play a role in enforcing our immigration laws. Anything short of a nationwide injunction was simply too disruptive in the immigration context. 


lotter on DSKBCFDHB2PROD with HEARING
8 

So, that said, there certainly are serious costs in nationwide injunctions, and I commend my fellow panelists for raising this issue 

and hopefully encouraging district courts to think twice. My view 

is the district courts should consider carefully the scope of an injunction, should hold a hearing on the issue at which they gather 

evidence from the parties as well as interested third parties to the 

case about the costs and the benefits, before going ahead and 

issuing a nationwide injunction. But I do think it remains an appropriate remedy in appropriate cases. 

Thank you for your time and I look forward to your questions. 

[The prepared statement of Ms. Frost follows:] 

Mr. ISSA. Thank you. Professor Morley. 

STATEMENT OF MICHAEL MORLEY 

Mr. MORLEY. Good afternoon, Mr. Chairman, ranking member, 

and distinguished committee members. My name is Michael Morley, and I am an Associate Professor of law at—— 

Mr. ISSA. We cannot quite hear you. Pull the mic closer and turn 

it on, please. 

Mr. MORLEY. Thank you. My name is Michael Morley and I am 

an Associate Professor of Law at Barry University School of Law. 

It is an honor to have the opportunity to speak with you today on 

the issue of nationwide injunctions. 

Almost every injunction can have a nationwide impact in some 

respect. When an injunction prohibits a defendant from taking certain actions, that prohibition typically applies anywhere in the Nation, including places well outside the geographic jurisdiction of the 

issue in court. 

Today, however, I will be using the term ‘‘nationwide injunction’’ 

to refer to court orders that purport to adjudicate and enforce the 

rights of people who are not necessarily before the court, who may 

very well be outside of the issue in the court’s jurisdiction. 

Because any injunction may have effects far beyond a court’s jurisdiction, the key question in determining whether an order is a 

nationwide injunction of the sort we are speaking about today is 

whose rights is the court focused on enforcing. I would like to emphasize three main issues. 

First, the question of what the propriety of nationwide injunction 

is bipartisan. Second, at least some of the reason that confusion exists over nationwide injunctions is due to the potentially misleading language courts sometimes use in discussing constitutional 

issues, as well as the uncertainty over the respective roles that different bodies of law play in constitutional cases. 

Finally, when considering the issue of nationwide injunctions, it 

is critical to distinguish between class action and nonclass cases. 

First, nationwide injunctions are a bipartisan issue. By issuing 

a nationwide injunction, a single district judge may completely prohibit a Federal statute, regulation, executive order, or administrative policy from being enforced against anyone anywhere in the Nation, or potentially even the world. It may grant relief to thirdparty nonlitigants. The plaintiffs themselves lack standing under 

Article III of the Constitution to pursue. 

Over the past year, nationwide injunctions have been issued 

against several of President Trump’s initiatives, including the travVerDate Sep 11 2014 01:07 Oct 25, 2018 Jkt 032475 PO 00000 Frm 00012 Fmt 6633 Sfmt 6602 E:\HR\OC\A475.XXX A475

lotter on DSKBCFDHB2PROD with HEARING
9 

el ban, prohibition on transsexual service in the military, and restrictions on Federal funds to sanctuary cities. 

As my colleagues have noted, however, only a year or two earlier, 

nationwide injunctions were issued against several of President 

Obama’s initiatives, including not only deferred action for parents 

of aliens, but Department of Education guidance concerning 

transgender students’ bathroom use, and even the Affordable Care 

Act itself. 

Thus, nationwide injunctions may be levied against legal provisions enacted by either political party presenting concerns for both. 

It is truly an area in which both parties have a strong interest in 

applying objective, neutral principles. 

Second, part of the confusion over nationwide injunctions stems 

at least in part from the language courts use to discuss constitutional cases. When a court, especially a district court, holds that a 

statute is facially unconstitutional, we often say that the court has 

struck down the statute, but that phrase is only a metaphor. The 

statute itself remains on the books. The court has simply decided 

that the Constitution precludes it from applying that statute in the 

case before it. 

The question then becomes what are the other legal consequences of a district court’s ruling that a legal provision is unconstitutional? The answer to that question does not come primarily 

from constitutional law but rather other bodies of law, such as civil 

procedure, Federal courts, and remedies, which usually counsel in 

favor of more narrow injunctive relief. The notion that a nationwide injunction is appropriate simply because a district court concludes that a law is facially unconstitutional is erroneous. 

Finally, nationwide injunctions present very different issues in 

class action versus nonclass cases. It is generally undisputed that 

a court may grant relief to the parties before it. In a class action 

case brought under Federal Rule of Civil Procedure 23(b)(2), a 

court may grant injunctive relief to protect the rights of all plaintiff 

class members. 

The main issue in such cases is not so much the scope of the injunction but rather the scope of the class. Courts should generally 

avoid certifying nationwide classes in constitutional under Rule 

23(b)(2) precisely to avoid having to issue nationwide injunctions, 

completely nullifying a Federal legal provision across the country. 

In nonclass cases in contrast, when a court issues a nationwide 

injunction it is enforcing the rights of third-party nonlitigants who 

are not before the court. The plaintiffs in nonclass cases generally 

lack Article III standing to seek such relief and such broad orders 

are unnecessary to resolve the case or controversy actually before 

the court. In nonclass cases, courts should generally issue only 

plaintiff-oriented injunctions, enforcing only the rights of the particular plaintiffs before them. 

I have offered proposed statutory language to address these 

issues in my written statement. Thank you very much for your 

time and I would be happy to answer any questions. 

[The prepared statement of Mr. Morley follows:] 

Mr. ISSA. Thank you. Mr. von Spakovsky. 


lotter on DSKBCFDHB2PROD with HEARING
10 

STATEMENT OF HANS VON SPAKOVSKY 

Mr. VON SPAKOVSKY. Well, the legitimacy of an injunction issued 

by a Federal district court against the government in a nonclass action law suit has nationwide application to individuals who are not 

parties to a suit. That is the issue. Such injunctions are recent phenomena that violate Supreme Court precedent, U.S. v. Mendoza. In 

Mendoza, the lower courts refused to allow the government to contest the case because of a prior adverse decision on the same issue 

by a different Federal court against different plaintiffs. 

The ninth circuit held that the government was collaterally estopped from relitigating the constitutional issue. But the Supreme 

Court held that the doctrine of collateral estoppel, which applies to 

private parties, does not apply to the government. 

The government is not the same as private litigants because, as 

Chief Justice Rehnquist said, ‘‘Both because of the geographical 

breadth of government litigation and also, most importantly, because of the nature of the issues in government litigation.’’ Thus, 

applying collateral estoppel of the government ‘‘would substantially 

thwart the development of important questions of law by freezing 

the first final decision issued on a particular legal issue.’’ Allowing 

only one final adjudication would deprive the Supreme Court of the 

benefits it receives from permitting several courts of appeal to explore a different question before it grants certiorari. 

Thus, the government is not further bound in a case involving a 

litigant who was not a party to the earlier litigation and has the 

ability to continue to apply its regulations, policies, and executive 

orders to individuals, including aliens, who are not parties to specific lawsuits contesting the government’s actions. Nationwide injunctions obviously provide an incentive for extreme forum shopping, rewarding plaintiffs who steer cases to specific circuits, specific districts, and even specific judges. 

While such forum shopping raises serious questions in the minds 

of the public about the objectivity and partisanship of the judges 

chosen by plaintiffs, because the judges are viewed as holding particular ideological and political views that will benefit the plaintiffs. 

When Federal courts issue nationwide injunctions applying to 

nonparties, they are invading the authority of other Federal courts 

and other appellate circuits. Now while that may be appropriate 

when applied to the specific individuals who are before that particular court, it is not appropriate for individuals who are not parties of the lawsuits and certainly not to unnamed, unknown individuals, except under very limited and very narrow circumstances 

as determined by Congress and the Supreme Court. 

There are occasions when a nationwide injunction may be appropriate for nonparties, but Congress has provided for that through 

Federal Rule of Civil Procedure 23, which outlines the requirements for a Federal court to certify a class action. Federal courts 

issuing nationwide injunctions without following rule 23 are evading compliance with Federal law. 

Similarly, Congress has provided that a Federal court can set 

aside actions taken by the government if it finds a violation of the 

Administrative Procedure Act, the APA. Thus, while some have 

criticized the nationwide injunction issued by a Federal district 


lotter on DSKBCFDHB2PROD with HEARING
11 

court and upheld by the fifth circuit against President Barack 

Obama’s DAPA program, that injunction was only issued after the 

courts found a violation of the Administrative Procedure Act. 

Now, solutions to the problem are such that, you know, we would 

not have this problem of improperly issued nationwide injunctions 

if Federal courts followed the Mendoza precedent with regard to 

judgments against the government that do not bind on parties or 

complied with Federal rule 23, if a class of plaintiffs is justified, or 

followed the requirements of the Administrative Procedure Act. 

The Federal judges are routinely ignoring these requirements when 

issuing injunctions. 

Now, one potential way to prevent the conflicts that can arise 

from multiple differing opinions issued by different Federal judges 

would be for Congress to require all the lawsuits contesting the legality or constitutionality of an executive order signed by the President, or a regulation promulgated by a Federal agency to be filed 

in the District of Columbia Federal District Court. This is a precedent that has been followed by Congress by section 5 of the Voting 

Rights Act which required such lawsuits to be filed in the District 

of Columbia. 

Another potential solution is to de novo review of cases that do 

not follow the Mendoza precedent. Of course, this would remedy 

the problem if circuit judges do not follow the legal and equitable 

limitations that already exists on granting such injunctions. I will 

be happy to answer questions from the other members of the committee. 

Mr. ISSA. Thank you. I recognize myself for the first round of 

questioning. Oh, I am terribly sorry, I tried to overdo it. We now 

recognize the chairman of the full committee, the gentleman from 

Virginia, Mr. Goodlatte, for his opening statement. 

Chairman GOODLATTE. Well, thank you very much, Mr. Chairman. I appreciate you holding this hearing, I appreciate your forbearance in letting me give this statement. Well, this issue is a 

very important one and I appreciate the witnesses’ testimony 

today. 

We are here to explore the proprietary of allowing a single district court to issue a nationwide injunction with respect to congressional and executive actions. With George W. Bush and Donald 

Trump as President, national injunctions against the administration’s policies tended to be issued by Federal district court judges 

in the ninth circuit, including California and Washington State. 

When Barack Obama was President, national injunctions against 

the administration’s policies tended to be issued by Federal judges 

in the fifth circuit, including Texas. This situation poses many 

problems for us all to consider. 

Among them, if a plaintiff brings an individual action seeking a 

national injunction and the Federal district court upholds the Federal policy challenge, then the decision has no effect on other potential plaintiffs. However, if one Federal district court judge invalidates a Federal policy and issues a national injunction, the injunction stops the Federal policy with respect to everyone nationwide. 

To paraphrase what one law professor has written, ‘‘shop ’til the 

Federal policy drops.’’ Also, when a single Federal district court 


lotter on DSKBCFDHB2PROD with HEARING
12 

judge issues a national injunction, it would seem to greatly interfere with a more optimal decisionmaking process within the Federal court system and even affect the Supreme Court’s resolution 

of the issue. 

When a Federal district court stops a Federal policy everywhere, 

there might be no opportunity for other Federal judges to express 

their views, leaving the Supreme Court to potentially hear the appeal without the benefit of hearing differing views on the subject, 

including different analyses of both the law and the facts among 

both other Federal district court judges and other circuits as well. 

It leaves the Supreme Court to decide major questions of Federal 

policy more quickly with fewer facts and without the advice of competing views among the lower courts. 

National injunctions issued by Federal district courts result in a 

uniform policy to be sure, but at the cost, at least, of some of the 

problems I have briefly mentioned. National uniformity is not a 

prime imperative in our system of lower Federal courts divided into 

circuits, a system that broadly tolerates disuniformity in the law 

pending review by the Supreme Court. Indeed, the only way to 

avoid disuniformity in the Federal courts would be to have only 

one, but that is not our system. 

The situation created by the acquiescence to national injunctions 

does not seem to have prevailed at all in the first century and a 

half, or more, of American history and when the prospect was 

raised in the past, it seems to have been decisively rejected during 

that period. Congress knows how to concentrate judicial review in 

a small set of courts, and it has done so on several occasions, pursuant to federal legislation enacted by the dually representatives of 

the people. 

Yet the prevailing acquiescence to the issuing of national injunctions by lower courts is not the result of any nationally considered 

policy, and certainly not one enacted by Congress and signed into 

law by the President. 

So, I would conclude that with a question to the distinguished 

panel gathered here today. Since disuniformity is an inherent part 

of our Federal judicial system, what is the best way to achieve uniformity? Is it through the current acquiescence with national injunctions, where the first court to invalidate a congressional or executive action has its decision applied nationwide, despite the potential of preexisting, conflicting decisions? Or is it through either 

the unanimous opinions of the lower courts or through the disagreement of the lower courts preceding an analysis by the Supreme Court? 

I thank all of our witnesses for participating in today’s hearing, 

and I look forward to posing that question to each of you at a little 

later in the process. Thank you, Mr. Chairman. 

[The prepared statement of Chairman Goodlatte follows:] 

Mr. ISSA. Thank you. I was planning on letting them answer that 

one, Mr. Chairman. We will let you think about it. I will now recognize myself for a round of questioning. You know, the chairman 

made some extremely good points, and I will try to add on to those 

in my questioning. 

Professor Frost, I gave you a heads-up initially that you seem to 

be the most in the middle of some of the decisions here. So, let me 


lotter on DSKBCFDHB2PROD with HEARING
13 

pose first one question of, in a case in which you have a party. For 

example, in an antitrust case, and the party is doing something to 

a particular individual and then brings it. Obviously, the court, 

one, goes to an appropriate venue, often not the plaintiff’s but the 

defendant’s. Correct? 

Ms. FROST. I am sorry. Could you repeat the—— 

Mr. ISSA. I mean, the defendant in an antitrust case has to be 

in a place in which the court can determine they have a nexus to 

it? Okay? 

Ms. FROST. Yes. Yes, for starters. 

Mr. ISSA. So, you first have to go where the defendant is—— 

Ms. FROST. Yes. 

Mr. ISSA [continuing]. In some measurable way. Secondly, if you 

plead an antitrust activity, it only affects that particular activity 

as to that individual, and of course, you will enjoin the company 

in the entirety but you are enjoining a particular activity. Correct? 

Ms. FROST. Yes. I need to know more about the case, but yes, you 

are enjoining the party from acting. 

Mr. ISSA. So using the example—and I think we all understand 

the elephant in the room are these last few years on both sides of 

the aisle these decisions—in the case, for example, of a proposed 

immigrant. If they were coming in, let’s say, on a green card, if 

they were returning on a visa, are the particulars in that case identical in any way to, let’s say, somebody coming from a country 

where you cannot verify their origin? Particulars are different, are 

they not? 

Ms. FROST. Those acts differ. 

Mr. ISSA. So, in several of these cases on both sides, there was 

not a harmony of the cases but, in fact, a determination that the 

order was inherently unconstitutional for all that could be affected 

by, both before the court and not before the court. Correct? 

Ms. FROST. Are you talking about in the travel ban litigation, 

or—— 

Mr. ISSA. Yes. 

Ms. FROST. Yes, and I will also say that was the same type of 

ruling that the Texas District Court issued in the case challenge 

where Texas challenged the DAPA. 

Mr. ISSA. So, Professor Bray, using that example—because I 

want to stay on it for a second—ultimately did the President not 

have a follow-on order that was a lesser included part of his original order? 

Mr. BRAY. Yes, that is my—— 

Mr. ISSA. Was it considered to be unconstitutional when it was 

a lesser included? 

Mr. BRAY. Well, that was the subject of further litigation and 

there were more national injunctions against the revised order. 

Mr. ISSA. Right. But at the end of the day a lesser included part 

of the order was constitutional. In other words, the President’s 

order, at worst, was overly broad as to the individuals. Correct? 

Mr. BRAY. I think that partly depends on the theory of the particular challenge. So, I—— 

Mr. ISSA. Let me move on, because I am going to run out of time 

and I want to get one or two more things in fairly quickly. Is it 

reasonable to say that this problem, to the extent that there is, is 


lotter on DSKBCFDHB2PROD with HEARING
14 

not the problem of a nationwide injunction but the process of agreeing to a nationwide injunction and ensuring that, in this case, the 

United States Government, the President and his or her administration has a process which is fair and equitable for the outcome? 

I will do it this way—professor, and I will go right down the 

aisle—do you all agree that there is at least one case in which 

somewhere in the Federal court system there should be a nationwide injunction granted? 

Mr. BRAY. I do not—— 

Mr. ISSA. Okay. Well, let’s—— 

Mr. BRAY. Because I think it goes beyond the Article III power 

of the Federal courts—— 

Mr. ISSA. Let’s say the D.C. Circuit. 

Mr. BRAY. Even in the D.C. Circuit. The injunction should bind 

the parties and that is all the courts have constitutional powers. 

Mr. ISSA. Let me go through this for second because I want to 

be fair that I think there is a balanced question here that as we 

try to resolve it we want to get to. Professor Frost—and I apologize 

to the others, I am not probably going to get to you—but Professor 

Frost, are there not examples in the D.C. Circuit in which regulatory decisions are routinely struck down there and that they effectively eliminate the enjoined the regulation and strike it down? 

Ms. FROST. Certainly. 

Mr. ISSA. Are those not nationwide? 

Ms. FROST. Yes. They operate nationwide in the sense that they 

are going to stop that policy wherever it would have been implemented in the Nation. 

Mr. ISSA. So, inherently, we do, with some regularity, have nationwide injunctions, but we do not call them nationwide injunctions. Is that correct? 

Ms. FROST. I think the definitional issue is really important here 

to think, especially if you are going to legislate this area, you 

should be very careful about—— 

Mr. ISSA. So, one of the—and that is why I asked to process and 

I will close with this—from a process standpoint, the ambiguity is 

a party who has a right to be, let’s just say in Hawaii or Washington, and the United States of America, which is inherently here 

in Washington, D.C., and finding a way to find a process in which 

the individual is not denied their right potentially to seek redress 

where they are. 

And I will not use immigration as one, but let’s just say that, and 

the inherent right of the Federal Government to have a process for 

a determination of what it should or should not be able to do on 

a national basis. Is that a fair statement of the problem, not necessarily the solution? 

Mr. BRAY. I think we can think about it as a process problem 

with the issue being how do we get from A to B, with A as legal 

dispute and controversy, and B as some sense of uniformity. And 

the traditional way to do that is through precedent and not 

through national injunctions—— 

Mr. ISSA. And we are going to get to that in my second round. 

Does anyone disagree with that basic concept, that this is at least 

a part of what we should explore here today? With that, I recognize 

the ranking member of the committee for his questions. 


lotter on DSKBCFDHB2PROD with HEARING
15 

Mr. NADLER. Thank you, Mr. Chairman. Professor Frost, Professor Bray argues in his testimony and in his answers that nationwide injunctions are unconstitutional, period. Do you agree with 

that assessment? And are you aware of any cases in which the constitutionality of a nationwide injunction has been challenged? 

Ms. FROST. No, I do not agree with that statement. First, because 

I think that we need to separate out a district court’s power to hear 

a case and that does turn on connection between the defendant and 

the territory in which the district court presides. So, there is a 

limit on the district courts. They cannot hear every case. They have 

to hear a case in which there is a jurisdictional connection. 

But that is not the same as what kind of remedy can they issue, 

and I argue they have the power to issue a remedy to provide complete relief to the plaintiff, and that is what the Supreme Court has 

said in Madison. It is also what the Supreme Court implicitly said 

when it partially upheld the nationwide injunction against the 

travel ban, just this past year. Because, of course, it kept that nationwide injunction in place as it applied to people beyond the 

plaintiffs. 

Mr. NADLER. So, you would say the Supreme Court, in that decision, in effect upheld the constitutionality of nationwide injunctions? 

Ms. FROST. Yes. 

Mr. NADLER. Thank you. Professor Bray, would you comment on 

that? 

Mr. BRAY. I do not think the procedural posture in that case, 

which is a motion for a stay of a preliminary injunction, is a decision on the merits by the U.S. Supreme Court on this question. 

There have actually been—the closest thing to a decision on the nationwide injunction is Frothingham v. Mellon in the 1920s and it 

said it would be beyond the judicial power under Article III. And 

that is consistent with the traditional practice. 

Mr. NADLER. And by upholding the injunction in the travel ban 

case, the Supreme Court was not implicitly modifying that? 

Mr. BRAY. I think when the court is deciding whether or not to 

grant a stay, it is considering a variety of prudential considerations 

without reaching that particular question of whether the national 

injunction is appropriate. That question—— 

Mr. NADLER. Wait, wait, wait. Of course, it is using a variety of 

prudential considerations. But if it were unconstitutional, it could 

not get to those prudential considerations, could it? 

Mr. BRAY. Well, I think they should not have. They should not 

have waited. But on that particular posture, it is not a decision on 

the merits of the national injunction. 

Mr. NADLER. Even by implication? 

Mr. BRAY. By implication from the posture that the court deciding it. 

Mr. NADLER. Okay. All right. Professor Frost, again, when a 

court issues a nationwide injunction it spares other similarly situated individuals from having to file suit individually and relitigate 

the same issues obviously. What impact do you think a ban on nationwide injunctions would have on the efficiency of the courts and 

on their limited resources? 


lotter on DSKBCFDHB2PROD with HEARING
16 

Ms. FROST. Yeah, judicial economy and the inefficiency of requiring relitigation is yet another benefit of nationwide injunctions. I 

also, as I have said, think there are costs. So, I do not think that 

would outweigh some of the cost. It depends on the case. I think 

the most compelling reason to allow for a nationwide injunction is 

that in cases where you cannot give complete relief to the plaintiffs 

without it. And as I gave examples in immigration cases, the case 

by Texas against the Obama administration policies and the travel 

ban litigation are perfect examples. 

Mr. NADLER. Let me ask Professor Bray. In those cases, how 

would you give relief without a nationwide injunction? 

Mr. BRAY. I think you could give complete relief in each case 

without a national injunction. So, for example, when the State of 

Washington is suing because of the strongest case for standing it 

had was on the harm to State universities because students and 

faculty could not travel to Washington. So, the injunction could require the admission to the United States of students and faculty 

to Washington State universities. And that puts the onus on the 

administration to deal with the logistical problems of that and that 

is completely appropriate. 

Mr. NADLER. Okay. And then, California would have to sue separately to prevent the damage to the University of California by students who could not come there? 

Mr. BRAY. So, the parade of horribles winds up having very few 

floats in it because California might sue, and Washington might 

sue, and then you get a decision—— 

Mr. NADLER. Could you just answer my question? 

Mr. BRAY [continuing]. From the ninth circuit and it would be set 

for the ninth circuit. 

Mr. NADLER. So, in other words, okay—you would have a different lawsuit in every circuit. Professor Frost, can you comment 

on that? 

Ms. Frost. Yeah, and I think it is inefficient to do it that way. 

Mr. NADLER. Inefficient? 

Ms. FROST. But I also do not agree with Professor Bray that it 

would resolve the harm for the State of Washington because the arguments made by these States was it is a problem for their economies, for their universities, for their residents to have a whole, at 

that point—— 

Mr. NADLER. Okay. 

Ms. FROST [continuing]. I think seven different countries, nationals, were banned from coming to the United States. That is going 

to dissuade people from applying to be students—— 

Mr. NADLER. All right. Let me ask you one final quick question 

because my time is running out. You recommend, professor, in your 

testimony that before issuing a nationwide injunction a court 

should only hear specifically on that question with testimony from 

the affected parties. I was struck by that testimony. What are some 

of the factors you think a court should consider when examining 

that question? 

Ms. FROST. When courts consider this question, they should look 

at the costs, which Professor Bray and Professor Morley discussed 

in their articles, and the benefits, which are, as I said, complete relief for the plaintiffs as well the need for uniformity in the interpreVerDate Sep 11 2014 01:07 Oct 25, 2018 Jkt 032475 PO 00000 Frm 00020 Fmt 6633 Sfmt 6602 E:\HR\OC\A475.XXX A475

lotter on DSKBCFDHB2PROD with HEARING
17 

tation and application of the law, and that like cases be treated 

alike, which is also an important principle in our legal system. So, 

they should weigh those costs and those benefits. 

Mr. NADLER. Thank you. My time has expired. 

Mr. ISSA. Thank you, and I would just like to continue on that 

line with the chairmen of the cull committee, Mr. Goodlatte. 

Chairman GOODLATTE. Well, thank you, Mr. Chairman. I would 

love to dive into the details of both the Texas DAPA injunction and 

the series of decisions by a few district court judges, primarily one 

in Hawaii, with regard to the injunction of seven countries. I am 

mystified by why he allowed it to go forward in this most recent 

action, for Venezuela and one other country, but not for five others; 

I mean, just totally mystified me. 

But I think it is more important to take the concern that people 

have, no matter what their political perspective is, on how one single district court judge gets to make this decision which can last 

under the current process for many months or a year or more, depending upon the type of case it is. 

So, I want to go back to my question, which is what is the best 

way to solve that problem? Is it to let this continue on? Or is it 

to have some method of achieving uniformity by requiring unanimous opinions through the lower courts? Or if there is disagreement in the lower courts, that having to happen and then go to the 

Supreme Court before the injunction can be imposed. 

So, let me start with Mr. von Spakovsky. Your testimony suggests either designating a specific court to hear such constitutional 

challenges. Obviously in this day and age, where as I noted everything injunctions—not everything, but most things—affecting decisions by the Obama administration came out of one circuit, the 

fifth circuit. 

Most things that came out affecting the Trump administration, 

and before that the Bush administration—not all, because there 

are some here in the eastern part of the country—but came out of 

the ninth circuit. Designating one circuit to do that is going to 

place a lot of power in one place. You also suggested changing the 

standard of review by circuit courts when hearing appeals. Do you 

have a preference on those two suggestions? 

Mr. VON SPAKOVSKY. I think there is a little bit of a misnomer 

going on here, and Professor Bray talked about this. Look, the 

problem is not so much nationwide injunction. Part of the problem 

here is the courts issuing injunctions that are too broad. 

For example, Professor Frost keeps comparing the decision about 

DAPA with the travel orders, but in the DAPA case what the court 

actually found was a violation of the APA. That is not something 

that was asserted in the lawsuits against the travel orders. And 

there is a difference there. 

Look, Congress itself has passed this APA statute saying that 

when an agency is acting in issuing a policy or regulation, you have 

given the courts the authority. 

Chairman GOODLATTE. I get this, and I agree with your assessment, but I want to get to how you prevent district court judges 

that have a wide array of ‘‘shop ’til the Federal law drops.’’ How 

do you avoid that? 


lotter on DSKBCFDHB2PROD with HEARING
18 

Mr. VON SPAKOVSKY. Okay, in that case, I mean, there are problems with giving one particular court, like the D.C. Circuit, jurisdiction over something, for example, that you think that an agency 

is doing, because then it brings up the politics, or the fights over 

who is going to sit in that circuit. On the other hand, and I think 

it was Professor Bray who suggested that you change the standard 

of review. 

So that, for example—and this is something that I have recommended—if a Federal district court goes beyond the Mendoza 

precedent, if it extends its injunction beyond the people who are actually the plaintiffs in a case, the named plaintiffs, and goes beyond that, if you change that standard of review from abuse of discretion to de novo review, then you are going to give the appellate 

court more authority to strike down when a district court goes too 

far. 

Of course, that is not going to do you any good if you have circuit 

court judges who are not paying any attention to that. And if you 

want to see a good example of circuit judges not paying attention 

to these restriction on them, look at the ninth circuit panel in the 

case of—— 

Chairman GOODLATTE. Let me interrupt you here. 

Mr. VON SPAKOVSKY. Yeah. 

Chairman GOODLATTE. Again, I love listening to what you have 

to say, but I want to give the other three witnesses a chance to respond to that one question because that is the only thing I am 

going to get to ask. Professor Morley? 

Mr. MORLEY. Thank you. In terms of uniformity, the Federal judicial system is fundamentally structured not to promote immediate uniformity. Most of the consequences of a court’s ruling does 

not come necessarily from an injunction. It comes from the stare 

decisis effect. By having 12 different geographic circuits—— 

Chairman GOODLATTE. What is the solution? I share your concern. What is the solution? 

Mr. MORLEY. Well, that is exactly my point. As long as you are 

working against the backdrop of a system where even circuit court 

rulings are only binding within their circuits, it would be inconsistent with that to say, nevertheless, we should allow single district judges or single circuit courts to allow their injunctions to 

apply. 

Chairman GOODLATTE. How about just legislate a change in the 

standard of review? 

Mr. MORLEY. Certainly, I would support moving to a de novo 

standard of review for injunctions that purport to enforce the rights 

of third-party nonlitigants. Going further and enacting statutory 

language prohibiting courts from adopting injunctions that enforce 

the rights of third-party nonlitigants would be even greater protection. 

And this goes back to the definitional question. Everyone agrees. 

A court should enforce the rights of the parties before it. In some 

cases, that might require relief that is broader, that might look like 

a nationwide injunction, but that is not the problem. The problem 

is where courts are saying, ‘‘I am not focusing on enforcing this 

plaintiff’s rights. I want to enforce everyone’s rights, including 

third-party nonlitigants.’’ 


lotter on DSKBCFDHB2PROD with HEARING
19 

Chairman GOODLATTE. Got it. Let me go on to Professor Frost 

and then Professor Bray briefly. 

Ms. FROST. So, you are concerned about the power of a single district judge, and I would just point out that, of course, that judge’s 

decision is immediately appealable to a circuit court, to an unbound 

circuit court, and to the U.S. Supreme Court. So, I do not think it 

leaves the decision in the hands of a single district judge. 

Chairman GOODLATTE. It takes a long time to get there. 

Ms. FROST. Not in certain litigations. We have seen it with the 

travel ban litigation, among others. 

Mr. BRAY. It can take a while and because the standard of review in the Court of Appeals, and for the Supreme Court, is abuse 

of discretion, you get some insolation. I am concerned about this 

problem about if there is a way, to do any kind of half measure, 

and I do not think there is. 

I do not think anybody has come up with a test that is not malleable and subjective, that is going to depend a lot on the judges own 

preferences to decide whether a national injunction is appropriate. 

Especially since the things that would go into the balance are very 

incommensurable. 

Like the concern for all people being treated alike under the 

same rule, like, that is going to be present in every case and could 

justify a national injunction in every case, if you accept that way 

of thinking about our system. As opposed to slowly, through precedent, getting uniformity. 

So, I do not think there is any way to give a Federal district 

judge power to issue national injunctions sometimes and not other 

times that will actually be logical and coherent. 

So, I would say a strict prohibition: ‘‘a court of the United States 

shall not enjoin the enforcement of a statute or regulation as 

against a nonparty.’’ 

Chairman GOODLATTE. Thank you. 

Mr. BRAY. Thank you, Mr. Chairman. 

Mr. ISSA. Thank you, Mr. Chairman. We now go to the gentleman from Georgia, Mr. Johnson. 

Mr. JOHNSON of Georgia. Thank you. Should not the decision as 

to whether or not to issue a nationwide injunction be made on a 

case-by-case basis, Professor Bray? 

Mr. BRAY. I think it is an excellent question and equitable decisions from the courts of equity and equitable remedies, including 

the injunction, do take into account then specifics of the case. 

Mr. JOHNSON of Georgia. And cannot a nationwide injunction, or 

a case where a nationwide injunction is sought, not be handled in 

that same way? Theoretically? 

Mr. BRAY. I think it cannot be and the reason is that the argument for a national injunction does not really come down to national injunctions in some cases. It is present in every case. And 

the arguments against the national injunctions, the ones I consider 

most potent, are also not only present in some cases. They are 

present in every case. So, what you have—— 

Mr. JOHNSON of Georgia. It largely has to do with its effect on 

people who are not parties to the case. Correct? 

Mr. BRAY. Yes, and also—— 


lotter on DSKBCFDHB2PROD with HEARING
20 

Mr. JOHNSON of Georgia. Is it not correct, however, that under 

rule 24, Federal Rule of Civil Procedure, a nonparty has a right to 

intervene in a case that they are not a party to that they contend 

affects them? 

Mr. BRAY. Yes, there are traditional devices for bringing in nonparties. Intervention and class actions are ways of doing that. 

Mr. JOHNSON of Georgia. You can even intervene under rule 24 

as a class action under rule 23? 

Mr. BRAY. I am not sure offhand the answer to that question. 

Mr. JOHNSON of Georgia. What would you say to that, Professor 

Frost? 

Ms. FROST. My understanding of intervention is that it would not 

be a method of certifying a class. You would have to go through the 

rule 23 requirements to certify a class—— 

Mr. JOHNSON of Georgia. But certainly an individual who is a 

representative of a class could file based on the individuality of the 

interest that he or she is asserting that is affected by the nationwide ban? Correct? 

Ms. FROST. Certainly, you could try to get a class action involved 

or started up in litigation involving a nationwide injunction. 

Mr. JOHNSON of Georgia. Professor Bray, you contend that the 

development of the national injunction is, to use your words, ‘‘an 

accidental development.’’ Do you mean that the careful and deliberate evolution of case law and precedent and authority based on 

previous decisions was an accident in development of the national 

injunction? 

Mr. BRAY. I think it was an accident because it did not happen 

through careful and deliberate development of this idea. There 

was—— 

Mr. JOHNSON of Georgia. Was it a sudden decision? 

Mr. BRAY. One of the key decisions in the early 1970s, the one 

that seemed to get the national injunctions started involved a concession by the government defendant that the government defendant should not have made, and so the court did not really consider 

the question closely. And so, the court said, ‘‘Well, it does not really 

matter whether a class is certified or not.’’ It had all the hallmarks 

of sloppy reasoning, not careful reasoning. 

Mr. JOHNSON of Georgia. Was that case appealed? 

Mr. BRAY. It was. 

Mr. JOHNSON of Georgia. And was it appealed to the U.S. Supreme Court? 

Mr. BRAY. Either cert was denied or there was no petition for 

certiorari, but there was not a Supreme Court decision. 

Mr. JOHNSON of Georgia. And so, has there been a Supreme 

Court decision on the constitutionality of the national injunction? 

I believe you indicated that there had been some discussion about 

it in a previous decision that occurred what year? 

Mr. BRAY. I think the Frothingham v. Mellon decision from the 

1920s is inconsistent with the national injunction and rejects it—— 

Mr. JOHNSON of Georgia. Well, I tell you, a lot has changed since 

1920, and the evolution of the case law has somewhat kept up with 

it. And is this issue something that can become right at some point 

for a decision by the U.S. Supreme Court? 

Mr. BRAY. It certainly can be, and in fact—— 


lotter on DSKBCFDHB2PROD with HEARING
21 

Mr. JOHNSON of Georgia. And should we not wait for that to happen as opposed to the legislative branch putting its heavy finger 

and thumb and entire hand and body on the scales of justice in the 

development of our case law? 

Mr. BRAY. Well, the Constitution binds and demarcates the authority of all three branches, it also binds the court, and it gives 

to this House the authority to develop rules for the jurisdiction of 

the Federal court. So, it is fully within the House’s constitutional 

powers. 

Mr. JOHNSON of Georgia. I would like to ask Professor von 

Spakovsky—— 

Mr. ISSA. Without objection, the gentleman will have 15 additional seconds. 

Mr. JOHNSON of Georgia. Thank you. I would like to ask Professor von Spakovsky what, under Article I, section 8, power gives 

the legislative branch the authority to legislate in this area? 

Mr. VON SPAKOVSKY. Well, Congressman, there would not be any 

Federal district court unless you all said there were. 

Mr. JOHNSON of Georgia. Well, I know that. And so—— 

Mr. VON SPAKOVSKY. And so, that gives you—— 

Mr. JOHNSON of Georgia. Enumerated powers. 

Mr. VON SPAKOVSKY. Yeah, that is right. 

Mr. JOHNSON of Georgia. Courts in the theory to the U.S. Supreme Court, but what other enumerated power under Article I, 

section 8, gives Congress the authority to legislate in this specific 

area? 

Mr. VON SPAKOVSKY. Oh, I think the very fact that the lower 

courts would not exist unless you all said they exist gives you a 

great deal of authority over shaping what they can do. I mean, part 

of the problem here is, again, I am going to go back to one of the 

key Supreme Court precedents here, on this U.S. v. Mendoza. 

Look, in that case, the Supreme Court said that a decision in a 

case in the Federal courts is not going to apply to nonparties to the 

case. And yet, here you have all these Federal courts around the 

country extending these injunctions to nonparties in the case. And 

part of the problem here, and why I agree with Professor Bray that 

Congress has got to do something about this, is—the Supreme 

Court is not—— 

Mr. JOHNSON of Georgia. It just seems like—— 

Mr. VON SPAKOVSKY [continuing]. Is not enforcing the discipline 

of that—— 

Mr. JOHNSON of Georgia. It seems like it has gotten to the point 

where we are deciding our case law based on who is in the executive branch. And with that, I will yield back. 

Mr. ISSA. I thank the gentleman. We now go to the gentleman 

from Ohio, Mr. Chabot. 

Mr. CHABOT. Thank you, Mr. Chairman. This has been a very interesting discussion here this afternoon, I think. And I have to say 

starting off, I think, Professor Bray, I think you have got a reasonably good idea as far as maybe the way to handle this. 

The challenge is passing anything substantial which can make it 

through the Senate. We can get things passed in this Committee, 

sometimes they are bipartisan, sometimes they are not. We can get 

things through the floor, but the Senate has different rules over 


lotter on DSKBCFDHB2PROD with HEARING
22 

there and they can—we need 60 votes to get anything done. And 

one side or the other thinks because if something passes it is going 

to adversely impact them politically and they could run against the 

other side and say, ‘‘They were a do-nothing Congress.’’ 

It is hard to get anything done in the Senate under the current 

rules, except during a process called reconciliation where you do 

not need 60 votes. And that is why we at least have a chance of 

getting the tax bill that already passed through the House through 

the Senate. But I have already gone way off from where I had intended to go, and I only get 5 minutes. 

So, I agree with a lot of what I have heard from colleagues, and 

I agree with—although there are some things that obviously you all 

differ on. But we have 500? 600? And there are vacancies now, but 

how many federal district court judges do we have right now? Is 

it 550? Or anybody know approximately what that number is? 

Ms. FROST. Approximately 650—680, I think. 

Mr. CHABOT. Six-hundred-and-fifty, 680? 

Ms. FROST. I think it is 680. 

Mr. CHABOT. Six-hundred-and-eighty? Okay. It just seems that 

there is something inherently wrong when you can forum shop 

under the existing things, which is basically, especially in the last 

3 years, been happening. You know, Republicans go to the fifth circuit out of Texas where they consider they are going to get more 

conservative judges and agree with them when they were up 

against Obama, and now Democrats, the Liberals, go out to the 

West Coast, the ninth circuit, because they think they are going to 

get more for a variety of reasons opinion. 

And you can literally stop something that the dually-elected 

President of the United States has determined with his powers to 

do. Sometimes, you know, Congress has passed legislation so that 

sometimes it is an executive order that he is acting on. 

But it just seems wrong. They could have gone to any other 

judge, got a completely different opinion, and as the chairman said, 

it can be in effect for months because of that one unelected judge. 

Or it could be as long as a year sometimes. And these are pretty 

impactful things whether you are talking about DACA or you are 

talking about a type of travel ban. Although, you know, that 

term—some people disagree with the term there. 

But this is something really wrong with our government when 

that can happen. With one person acting in that way, and you have 

sort of gone to that person because you have got a really good idea 

which direction they are going to go. I do not think the American 

people are served under that process and I think we have a responsibility to change it. I would love to hear a comment, maybe I will 

start with you, Professor Bray. 

Mr. BRAY. I agree. I cannot speak to the political realities, 

though I do hope that the fact that both sides have been on the 

receiving end of national injunctions will give everyone incentive to 

see their potential danger. 

And also, the potential infringement on the prerogatives of Congress because it is statutes that are passed by Congress that can 

be knocked out by a single judge instead of the more orderly process through precedent. So, I would hope there would be some sense 


lotter on DSKBCFDHB2PROD with HEARING
23 

of Congress as a body of this is the importance of this and not just 

each party. 

Mr. CHABOT. And I guess—and I have only got 1 minute and 10 

seconds, now 9, now 8 seconds left here—so, I will really just ask 

this. You had mentioned for 170 years this did not happen. You 

know, it has only happened for 50, and it has really only happened 

for the last 3 years. How did we, as a Nation, get by without doing 

this for that period of time? 

It reminds me a little bit of the, you know, the Florida Department of Education. I am a former schoolteacher. We did not have 

a Federal Department of Education until the 1970s. How in the 

heck did we educate our kids prior to that? You know, we do 

things, and there are a lot of people who disagree that suddenly 

the education system is better since now we have a Federal Department of Education. I am getting a little off track here again. 

But we did not do this for a long time and now we are doing it. 

Let me ask you, Mr. von Spakovsky, how did we get by with it and 

is there any lesson here and how should we change this? 

Mr. VON SPAKOVSKY. Look, I think part of the problem is, and 

I do not want to be too critical about this. But look, Congress, you 

have delegated too much of your authority to the executive branch 

and to executive branch agencies. And unfortunately, too many of 

the statutes that you have passed are so broadly worded that you 

are giving a lot authority to these agencies to interpret the law, 

come up with their own regulations, and that is why we end up in 

court so often. 

You know, there are so many lawsuits filed against Federal 

agencies over the regulations issue and that is because Congress is 

delegating too much authority to these agencies. You need to pull 

that power back into Congress, and that is part of the problem. 

Mr. CHABOT. I completely agree with you, and I am, unfortunately, out of time. Thank you very much. 

Mr. ISSA. We now go back to the chairman of the full committee 

for a second round. 

Chairman GOODLATTE. Well, thank you, Mr. Chairman. I want to 

pursue another line in my question. I do not disagree with Professor Bray and Mr. von Spakovsky that asserting the limitation of 

the jurisdiction of the courts would be a good solution, but I am not 

sure that that is very easy to do. 

I accept your criticism, but when I try to get something like that 

all the way through the House and then through the United States 

Senate, I realize great limitations on our power. And you are right, 

the horse is out of the barn on a lot of things. 

And it might be easier to do something more modest. It might 

get some bipartisan support. What if, for example—because this 

has affected, you know, initiatives on, you know, from both a conservative and a liberal perspective—what if you were to raise the 

standard for issuing the injunction in the first place? To require 

that an injunction that is broad in its scope has to be a three-judge 

panel, still immediately appealable but still having that lengthy 

time that elapses? 

But before the injunction can ever be issued, three judges all 

have to agree on the same, you know, wherever you go, three 

judges are pulled together under a random selection system, like 


lotter on DSKBCFDHB2PROD with HEARING
24 

our Federal courts are supposed to use. And three judges would all 

have to agree before an injunction can be issued as opposed to one 

individual making this decision. 

I mean, we do not recognize that anywhere else through this 

whole process, whether it is congressional action or action by the 

higher courts that require at least some kind of majority opinion. 

I would say, for this initial stop of a President’s clear authority, 

or a congressional clear authority, to say, ‘‘Oh, no. That cannot be 

stopped,’’ would take more than one individual district court judge. 

We will start with you, Professor Bray. I know you like your alternate better, but short of that, what else would you suggest? 

Mr. BRAY. So, I would be wary of anything that would seem to 

put Congress’ imprimatur on courts granting injunctions that go 

beyond the parties. So, if you set up three-judge court just for those 

injunctions? One problem you will run into is that those, I think 

they will be on the judicial power. 

Another problem is that the injunction is drafted at the end, logically, of the decision, whether on the decision on the unlikelihood 

of the merits for preliminary injunction or at the end for a permanent injunction. And so, you might not know until you get started. 

I think there are ways you can think about raising standards for 

injunctions that might indirectly affect this question. So, one of 

those is injunction bonds. It used to be the case that injunction 

bonds were more generally required for preliminary injunctions. 

That has largely fallen into desuetude over the last several decades. 

If there actually were injunction bonds, then that would give 

plaintiffs an incentive to only ask for injunctions that protected 

them because they would not want to pay for an injunction if they 

wound up being wrong and that was broader. 

So, that might be an indirect approach, but I would be wary of 

seeming to give this power to the courts that I do not think they 

constitutionally have. 

Chairman GOODLATTE. But they have it unless somebody tells 

them they do not, right now. And, you know, I brought this up with 

the Chief Justice and with the Judicial Conference of the United 

States and said, ‘‘This is something that you can address more easily than the Congress can address.’’ And it has only been about 6 

weeks since I did that, so I think there is maybe some hope there 

is something. 

But I have not seen a recognition on the part of the courts that 

this is an abuse of power that they should, from the top down, undertake to restrain because right now they are just letting it happen. Professor Frost. 

Ms. FROST. Yes, sir. I just want to say, in some ways, I think this 

hearing, while great to have this conversation, is a little premature 

in part because—and I want to give them credit—Professor Morley 

and Professor Bray have changed the way that some courts are 

now approaching this. They are now citing their articles and saying 

we need to be a little more careful. They are not taking up the position Professor Bray takes, and I hope they do not because we disagree that they should never have a nationwide injunction. 

But they are saying look at those concerns that Professor Bray 

and Professor Morley raised in their articles. We are going to look 


lotter on DSKBCFDHB2PROD with HEARING
25 

at those and think about them and think about this more seriously, 

rather than just, you know, issue a decision ordering a nationwide 

injunction without any thought. 

So, I think the district courts are beginning to think about a little more seriously than they did in the past. And there is a conversation starting now around this—— 

Chairman GOODLATTE. But would you say we are premature because you would also say that they would be premature in coming 

and testifying if we had thought of this and raised this first. So, 

I do not think it hurts for anybody to raise this subject—— 

Ms. FROST. I am sorry, I did not mean to suggest it was premature to have the hearing. It might be premature to legislate because of the fact that I think courts are beginning to look at this 

and question themselves. I do not think the hearing is premature 

but to—— 

Chairman GOODLATTE. I disagree with you on that. 

Ms. FROST. Yeah. And you mention three-judge panels. So, of 

course, that was tried and then abandoned in another context because it was so onerous and difficult to maintain. And I will also 

point out you can get a very quick appeal to an appellate court, 

which is a court of three judges. So, you can get three judges looking at this very quickly if you want to. 

Chairman GOODLATTE. Mr. Morley. 

Mr. MORLEY. I agree with Professor Frost’s comment. The Federal law used to require three-judge panels for injunctions in constitutional cases. And simply because that was such an overload on 

what has now become an even more burdened judicial system, I 

think that requiring three-judge panels would make things even 

worse for the Judiciary. 

It also does not solve the Article III issue, that Federal courts do 

not have Article III jurisdiction to grant relief to third-party nonlitigants, that the plaintiffs do not even have standing to enforce 

their rights. 

I have tried to include proposed language in the statutory proposal in my written statement by preceding the prohibition on nationwide injunctions with ‘‘unless otherwise required by the U.S. 

Constitution or some other provision of applicable law.’’ 

So, if the court, whether it is the district court—ultimately, the 

Supreme Court—if the court were to conclude that for equal protection reason or for other reasons in a particular case only enforcing 

some peoples’ rights would be constitutionally problematic, which 

I think is a very under-examined and difficult issue in itself. 

But if a court were to conclude that anything less than a nationwide injunction would be unconstitutional, including that proviso, 

including that qualification, would give it the flexibility in that rare 

extreme case then to do what it believes the Constitution requires, 

subject, of course, to further appellate review. 

So, I think with that qualification, unless otherwise required by 

the Constitution or other applicable law, nationwide injunctions 

will be prohibited. And of course, there is a little bit more detailed 

language in the proposal. I think that might be able to get more 

support rather than a flat unqualified ban. 

Chairman GOODLATTE. Mr. von Spakovsky. 


lotter on DSKBCFDHB2PROD with HEARING
26 

Mr. VON SPAKOVSKY. Look, I do not think I really have anything 

to add to that other than to say that, look, requiring a three-judge 

panel to be able to issue this kind of injunction is going to raise 

the burden on the judges. Because the whole problem we have got 

right now is, going back to what we have said before, is you have 

got Federal judges who are ignoring Supreme Court precedent and 

you do not have the Supreme Court imposing discipline on them 

for doing that. 

Chairman GOODLATTE. I do not disagree, but I think raising the 

burden would be a good thing in terms of making it less likely they 

will precipitously issue an injunction without all of the facts being 

developed and all of the parties being heard. And all the law being 

considered, and whether or not they have the authority to do what 

they are doing. So, thank you, Mr. Chairman. I appreciate this very 

much. 

Mr. ISSA. Thank you. Okay, I think I am going to be the closer 

here, and I want to just go through a couple of things. There was 

a question earlier and, you know, one of the weakest things we can 

do but most profound is to read a couple of words from the Constitution. And so, I will rely on that. 

In Article III, section 1, a portion of the paragraph says, ‘‘Judicial 

power of the United States, shall be vested in one Supreme Court, 

and in such inferior courts as the Congress may ordain.’’ But in 

section 2 of the same Article III, I think something that, when that 

question was asked earlier, is probably appropriate. It says, ‘‘All 

cases affecting ambassadors, other public ministers and consuls, 

and those in which a State shall be party, the Supreme Court shall 

have mentioned, the Supreme Court shall have appellate jurisdiction, both in law and in fact, with such exceptions, and under such 

regulations as the Congress shall make.’’ 

And I think what is important there is obviously—and it has 

been done—we have the right to limit the Supreme Court in what 

they hear. So, would it not be reasonable to say that inferior 

courts, we have the same right, and then ultimately, the question 

of nationwide injunctions is within the power of Congress? It is 

only a decision for us to make. 

Mr. BRAY. I think that is correct, and I would also add that the 

necessary and proper clause, in its horizontal aspect, passing laws 

for the carrying into effect the powers of other departments (in this 

case, the Judiciary) is another ground of authority for Congress. 

Mr. ISSA. So, let me go through a hypothetical because I want a 

bunch of them but there is one that has bothered me since this 

began. In a case, any case, in which you have a plaintiff and in 

which the United States of America is ultimately the defendant, 

you have two sets of remedies to be considered. 

And I know that the case in Texas is an interesting one. The first 

case is the plaintiff’s need to have a remedy; and so, the judge 

grants a remedy for that, and we can argue whether the remedy 

has to be that broad. 

But let’s assume for a moment that the remedy cannot be a nationwide injunction. It can only be a remedy for that individual or 

entity, such as you can come to Washington State schools. Then the 

question is, is it a separate question for the judge and for all the 

courts of the question of should this apply to bind the Federal GovVerDate Sep 11 2014 01:07 Oct 25, 2018 Jkt 032475 PO 00000 Frm 00030 Fmt 6633 Sfmt 6602 E:\HR\OC\A475.XXX A475

lotter on DSKBCFDHB2PROD with HEARING
27 

ernment from executing such actions in any other case substantially similar? 

Is that clearly a separate question in most cases? In other words, 

the unconstitutional question? Would you all agree that that second question is normally definably different in that it is a question 

of implementing against parties not there in which the circumstances could be different? Is that a fair assessment? So, let me 

ask a question for which I will more than just acquiescence that 

you heard me say it. 

If we were to make a two-part test, would we not be creating a 

situation in which the judge deals with the plaintiff and the remedy that is narrowly focused on what can be done and needs to be 

done, and then if, and only if, the moving party, the plaintiff, asks 

for and the judge agrees that further limitation of the actions of 

the United States Government is needed, makes a decision, and 

then we, in Congress, determine a process of the courts? 

And I am stopping it there because I do not know that today is 

the day—and I would like all of your input—whether today is the 

day to say, ‘‘Okay, we go to the D.C. Courts, we go to a three-judge 

panel, all of the other potential remedies.’’ 

But is it not reasonable to say there is two decisions and if a 

party asks for the broader decision, if the judge agrees that it 

would be appealable to the broader decision, then you go to a process that clearly is beyond the scope—because we will have limited 

it—beyond the scope of that particular judge? Your comments? 

Mr. BRAY. I think you are right that it is two separate inquiries, 

but I do not think a new process is needed for that separate inquiry. That is the doctrine of precedent. That already exists. So, injunctions are remedies to protect the parties, precedent is how one 

case ripples out to other cases. That is the way it has worked 

throughout most of U.S. history and there is no reason it cannot 

continue to work that way. 

Mr. ISSA. Professor. 

Ms. FROST. So, I guess I want to first say that I am not sure it 

is always these two separate issues, so to go—— 

Mr. ISSA. No, and I agree that the case of if somebody comes in 

to the country, it could be broader in the sense that they will come, 

if you are talking about, for example, if you were on the other side 

of the issue and said you were letting somebody in and they are 

going to have a criminal effect or a welfare effect, and so on. The 

State could say that it still affects me. 

But the reason I am asking this question, and I want to somewhat limit the discussion, so we can close out appropriately, is one 

of the questions that I am debating here is: do we do legislation, 

which Professor Bray does not believe we should? And if we do legislation, the real question is, if there is a recognition that there are 

others—if you will, a whole class—there is a process? 

But if there is a potential recognition that the government, let’s 

say the EPA for a moment, has clearly done something that they 

should not do. You have to have standing in order to bring that 

case, that question of constitutionality or authority. And if you cannot use this case to pivot to it, then the question for the court is 

they cannot act sua sponte, they have to have a case before them. 


lotter on DSKBCFDHB2PROD with HEARING
28 

So, that is why I am asking, can the case before them trigger the 

ultimate question, that in some cases was decided, which is notwithstanding a party present, we want to bind the executive 

branch from action over everyone? 

And I do want to ask it and would like further study, and I know 

there is some reading material already available. I have looked at 

some of it. Because I think that is a question before this committee 

is, does the process truly envision the question of striking down the 

constitutionality in the fastest possible and yet fair system? Not as 

to the original plaintiff, but as to the question of whether the actions of the executive branch, for example, exceed that which Congress authorized? Which ultimately, as you know, we have had a 

vexing time with here. Briefly. 

Ms. FROST. Yes. So, I agree there might be cases in which the 

complete remedy to the plaintiff is available without affecting others. And in those cases, that should be taken into account by a 

judge and should be a reason to hesitate, I would say, to issue a 

nationwide injunction. 

I do, though, urge you to look at my written testimony where I 

cite a case from the sixth circuit where the sixth circuit has 18 

States suing to strike down a regulation where the EPA was trying 

to broaden its authority, expand the scope of its operations. 

And that court said I am going to issue a nationwide injunction, 

not one limited to the 18 states, because it seems impossible to administer, would create disuniformity and confusion to say the EPA 

can regulate certain types of things outside of these 18 States but 

not within them. And that is another example of where I think the 

need for uniformity may have suggested that the cost-benefit analysis favored a nationwide injunction in that case. 

Mr. ISSA. Any other final closing questions or statements? 

Mr. MORLEY. Mr. Chairman, I totally agree with you that those 

are two separate questions, but courts should not reach that second 

question. If a plaintiff wants to seek relief for third parties other 

than itself, or him or herself, there is a class action mechanism for 

that. So, it is almost a non sequitur for a plaintiff to bring a 

nonclass case and then a court at the end to be deciding whether 

or not it should grant class-wide relief. The Supreme Court has repeatedly held—— 

Mr. ISSA. Even in a class action case you are not essentially 

striking down the underlying regulation or action as to parties not 

in class. 

Mr. MORLEY. Exactly. You would be providing the relief to the 

plaintiff class, which might be defined broadly as anyone adversely 

affected by that regulation. So, it might be equivalent to striking 

it down for everyone, depending on the class definition. But again, 

that is within the context of rule 23. 

If I could read you two sentences that the Supreme Court has 

issued. In Doran v. Salem Inn, the Supreme Court held, ‘‘Neither 

declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the 

particular Federal plaintiffs.’’ So, the Supreme Court expressly said 

there that injunction relief should be limited to plaintiffs. 

And then Justice Scalia, in a concurring opinion in Salazar v. 

Buono from 2010. He said, ‘‘A plaintiff cannot sidestep Article III’s 


lotter on DSKBCFDHB2PROD with HEARING
29 

requirements by combining a request for injunctive relief for which 

he has standing with a request for injunctive relief for which he 

lacks standing.’’ 

So, the simple fact that the plaintiff might be entitled to an injunction and might have Article III standing for himself does not 

allow courts to go on and ask that second question. 

So I would join with Professor Bray’s advocacy against having 

courts ask that second question and, if necessary, pass legislation 

to prevent them from doing so. 

Mr. ISSA. Good. 

Mr. NADLER. Professor Morley, if the Supreme Court said that, 

why do we have this problem now? Why do we still have these nationwide injunctions? 

Mr. MORLEY. In part, because most of the nationwide injunctions 

have not yet been fully litigated on the merits before the Supreme 

Court. It might very well that in several years the Court will have 

an opportunity to directly and squarely address the merits and several years from now the Court might issue a ruling reaffirming 

these cases and enjoining nationwide injunctions. 

Mr. NADLER. So basically because since that case, or since we 

started getting these nationwide injunctions, they have not gone 

onto the Supreme Court is what you are saying? 

Mr. MORLEY. We have seen requests for emergency relief, we 

have seen requests in the context of interim relief, but a full final 

ruling on the merits—— 

Mr. NADLER. Okay. Could Professor Frost comment on that? 

Ms. FROST. Well, I mean, he was quoting from a Supreme Court 

case that seems to support that position. I mean, I can quote from 

Califano v. Yamasaki where the Court said, ‘‘Consistent with principles of equity jurisprudence, the scope of injunctive relief is dictated by the extent of the violation established, not by the extent 

of the plaintiff class.’’ That was a case about a class action, but the 

principle here is the remedy goes beyond the class, and they have 

said that. 

Mr. NADLER. Thank you. 

Mr. ISSA. I guess I will close with one final question for the 

record, and I would love to have your follow-up answers. It is clear 

that the administrations of both parties’ overreach. My distinguished colleague found out that apparently that goes back to the 

1700s and a king no longer named in the United States. That is 

not unusual. That, in fact, one in power seeks power and interprets 

the broadest possible interpretation of their power. 

And the cases that we have talked about here today, by both parties’ Presidents, represent a belief by the executive branch that 

they have authority broader than at least some Federal judges believe they have. And that is a fair statement. 

As a result, the real question I leave you with today and would 

ask you to give me your input and we may have a follow-up hearing is relieving one of the actual overreach of the President, or any 

portion of his administration, beyond the scope of one plaintiff 

should be a reasonable goal that Congress should have. 


lotter on DSKBCFDHB2PROD with HEARING
30 

One should not assume that once there is a potential recognition 

that there are multiple errors, you should not have to litigate, and 

litigate, and litigate all the way to the Supreme Court if the underlying question is: is that regulation wrong or overly broad? 

Since Congress could give itself standing and the court might debate that, even after we give it to ourselves, the question would be 

how do we, within the structure of the Constitution, draw a statute 

that provides to some party, whether it is Congress, or a damaged 

individual, or any citizen of the United States, the ability to contest 

the underlying principle of the overreach? 

And I will give you the example. If you find, for example, in this 

Committee’s jurisdiction a patent that claims that it invented sunshine, you can go to the PTO and you can seek redress, even if you 

are not a party, and say it is just overly broad, obvious, and so on. 

We have done that. 

We do not have the equivalent in the case of a regulation that 

may broadly injure everyone, but you cannot get standing; and it 

is vexing for this committee. It is vexing for Members of Congress 

on both sides. And so, since we have a difference of opinion on 

some part of it, the resolution would be finding a way, with or 

without an individual, to figure out how to roll back decisions. 

And we have been talking about executive orders up until now, 

but obviously we have been talking around the questions of a preponderance of regulations interpretations guidance that often nobody in the White House even knows exists until it comes to their 

attention well into the lawsuit. 

Mr. BRAY. I think there should be legislation prohibiting national 

injunctions, step one. And I think you have got your finger on what 

is, for me, the strongest argument for the national injunction. But 

there is a kind of disarmament of the courts when the executive 

goes beyond the authority the executive is supposed to constitutionally have. 

Maybe then we want a lot of courts to go beyond the constitutional authority they have under Article III with the judicial power. 

Kind of equilibrium adjustment. I do not buy it, though. I think it 

is two wrongs make a right, and I think that is a separate issue 

that Congress should take up in separate legislation about the 

power of the administrative agencies. 

I would add two final points on this. One is there have been 

cases of executive overreach before, including in some of the cases 

in the New Deal that were struck down, and some of the statutes 

that were stuck down, and the system of deciding one case at a 

time worked. 

The last point I would make is that our system does not get at 

the principle all by itself. It only gets there through cases. There 

is some imperfection to this. It is not as clean. It is not as neat. 

It is not as crisp. But it is part of the human fallibility of a system 

with lots of judges, with State and Federal courts, that there is 

going to be some messiness, and this is the best we have come up 

with and it is a second-best world, and it works pretty well. 

Mr. ISSA. Well, I want to thank you all for this today. We will 

go no further on commenting on 680 Federal judges and their individual powers for today, but please feel free—we will hold the 

record open for 5 days—but accept beyond that any input you have 


lotter on DSKBCFDHB2PROD with HEARING
31 

for the committee on a bipartisan basis. With that, we stand adjourned. 

[Whereupon, at 3:35 p.m., the subcommittee was adjourned.] 

Æ 


lotter on DSKBCFDHB2PROD with HEARING