The Travel Ban Case and Nationwide Injunctions (CRS Report for Congress)
| Release Date |
May 2, 2018 |
| Report Number |
LSB10124 |
| Report Type |
Legal Sidebar |
| Authors |
Wilson C. Freeman |
| Source Agency |
Congressional Research Service |
Summary:
On Wednesday, April 25, 2018, the Supreme Court heard oral argument in the “travel ban” case, Trump v.
Hawaii. While the case presents many significant issues, one that has received relatively less attention,
but extends beyond the immigration context, is the cert petition’s third question: “Whether the global
injunction [issued by the lower court] is impermissibly overbroad.” This question centers on the
propriety of the “nationwide injunction,” (alternatively known as the “national” or “universal”
injunction), which is an issue of rising importance throughout the law.
This Sidebar addresses when, if ever, a regional federal trial judge adjudicating a case involving the
federal government can award nationwide injunctive relief—a court order that commands a party to take
or refrain from taking some action throughout the country. In the context of a suit against the federal
government, an injunction with this type of “universal” effect acts to effectively void the law or policy in
question. When a plaintiff brings a facial challenge to a federal law or policy, courts in recent years have
generally held that district courts have “considerable discretion in fashioning suitable relief,” including
the power to provide for an injunction against enforcing the federal law or policy nationwide. Some
courts and commentators have begun to argue, however, that this approach has gone too far, and district
courts should only have the power to enjoin the government’s conduct with respect to the parties before
the court. Scholarly debate on this question has intensified in recent years as the “nationwide injunction”
has become more common. The issue has become so significant that on March 10, 2018, Attorney
General Jeff Sessions, in remarks to the Federalist Society’s National Student Symposium, called the
nationwide injunction “a threat to our constitutional order.” This Sidebar briefly explores the nationwide
injunction at issue in the travel ban case and surveys a handful of the scholarly and judicial arguments
surrounding the nationwide injunction in general.
