Article III and the History of Nationwide Injunctions: A Response to Professor Sohoni

In a recent article in the Harvard Law Review entitled, “The Lost History of the ‘Universal’ Injunction,” Professor Mila Sohoni contends that Article III permits federal courts to issue nationwide injunctions because they have issued such orders since the early 1900s. She offers 15 main examples of federal cases from between 1894 and 1943 in which she contends that the court issued nationwide injunctions. These historical precedents, she argues, legitimize the continued constitutionality of nationwide injunctions today. This Essay demonstrates that the Article III objection to nationwide injunctions survives Professor Sohoni's critique for three main reasons. First, the only case that "Lost History" discusses in which the Supreme Court expressly addressed the validity of nationwide injunctions, Perkins v. Lukens Steel Co., largely rejected them. Perkins' express consideration of such orders carries far greater weight than inferences drawn from a handful of other cases, many from lower courts, that do not consider potential Article III concerns. Second, most of the orders on which "Lost History" focuses are not the type of nationwide injunctions at the heart of most modern debates over the issue. The term "nationwide injunction" is ambiguous, encompassing up to five fundamentally different type of orders that each raise distinct jurisdictional, rule-based, fairness-related, prudential, and structural concerns. The ongoing controversy concerning so-called nationwide injunctions involves a type of order that I call a "defendant-oriented injunction." A defendant-oriented injunction prohibits a governmental defendant from enforcing a challenged legal provision against anyone, anywhere in the nation, including third-party non-litigants in other jurisdictions. Most of the orders that "Lost History" cites are not defendant-oriented injunctions. Instead, they have materially different characteristics and are properly classified as completely distinct types of nationwide injunctions. These orders do not establish that federal courts have a lengthy history of issuing broad nationwide or statewide defendant-oriented injunctions aimed at enforcing the rights of third-party non-litigants. Finally, even treating all 15 orders as relevant examples, they prove very little. In most cases, the scope of the order was neither contested by the parties nor addressed by the Supreme Court. To the contrary, in several cases, the Government implicitly or explicitly consented to the requested relief on an interim basis, alleviating the need for the Court to consider their propriety. Perhaps more importantly for the examples involving constitutional challenges to state laws, most federal districts in the period had only one or two district judges, who adjudicated such matters as part of three-judge trial-court panels. Whether a district court granted a statewide defendant-oriented injunction was usually irrelevant as a practical matter, since any future constitutional challenges to that state law were virtually certain to be heard by the same judge. Thus, even if such orders were technically improper, it is entirely understandable under the circumstances that defendants would not have wasted time challenging them. In short, the history of nationwide injunctions does little to establish the constitutionality of defendant-oriented injunctions. Particularly in light of Article III precedent as it has evolved over the decades since, the Article III objection to such orders remains compelling.