GianCarlo Canaparo
In the Wall Street Journal, law professor Elizabeth Price Foley argues that the Supreme Court can eliminate nationwide injunctions by amending Federal Rule of Civil Procedure 65. Professor Foley’s proposal is clever and would advance the cause of ending nationwide injunctions in several ways. But ultimately her proposal may not be sufficient to end them for good. The best way to end nationwide injunctions for good is for the Supreme Court to take an appropriate case and hold that these injunctions are neither authorized by law nor contemplated by Article III of the Constitution—an argument my colleague Paul Larkin and I have advanced elsewhere.
Professor Foley is right to lament nationwide injunctions. The power to issue a nationwide injunction (or, more accurately, a “universal” injunction because it is not limited by geography or the parties before the court) makes a single district judge as powerful or more powerful than a majority of Supreme Court justices. With that power, a single judge can block the government from enforcing a rule or policy as to anyone, anywhere, at any time.
If the judge gets it wrong, either because he makes a mistake or because he lets partisanship cloud his legal judgment, nothing can be done unless and until a higher court intervenes. And if the higher courts get it wrong, nothing can be done at all.
To see the seriousness of the problem, consider the case of Dred Scott v. Sandford and Abraham Lincoln’s response to it. There, the Supreme Court wrongly held that black people were not citizens, but it did not apply its holding to all laws that recognized black people as citizens. Because there was no nationwide injunction, Lincoln could obey the decision with respect to Dred Scott himself but refuse to abide by its broken logic in similar cases; » Read More
https://www.heritage.org/courts/commentary/the-best-way-fix-nationwide-injunctions