Samuel Bray’s Multiple Chancellors: Reforming the National Injunction addresses what has increasingly become the recipe for legal challenges to federal policies. File suit in a division with judges—or best of all a single judge—expected to be favorable to the challenger’s claim. Make sure that district is located in a circuit also predisposed to your legal position. Then ask for a nationwide injunction. Obtain that relief in the plaintiff’s chosen forum and, save for the possibility of Supreme Court review, the issue has been settled once and for all.
No one can fault the lawyers who follow this strategy. But the practice poses serious problems for the courts. It tilts the playing field in favor of the challengers, as they need find only a single district judge who agrees with them. That lone judge issuing a nationwide injunction effectively overrules numerous judges who may have already rejected the same claim. It also subverts our judicial hierarchy as a nationwide injunction issued by a single district judge has greater effect than a court of appeals’ decision on the same issue in a noninjunction posture (that decision would only be binding within the circuit). Most troubling, the forum shopping this remedy incentivizes on issues of substantial public importance feeds the growing perception that the courts are politicized.
At the same time, interests of efficiency and uniformity support the practice. Do we want the system Bray’s article describes in which 1600 injunctions had to issue against a single provision of a New Deal statute? Although the nationwide injunction is problematic because it enables a judge with outlier views to halt enforcement of a policy on grounds most judges would reject, for challenges to policies that are plainly unlawful the rule of law would favor speedy and uniform judicial action. For regulatory schemes that depend on nationwide application for effective implementation, a patchwork of traditional, parties-only injunctions may be more disruptive than even an injunction that halts enforcement in full. That is why some statutes centralize review of an agency’s national regulations, like those of the EPA, in the D.C. Circuit. Our usual preference for development of the law via percolation of issues in the regional circuits sometimes gives way to a greater need for consistency.
There is a solution that would allow for uniform and speedier resolution of these challenges while reducing the advantage of forum shopping. It’s an idea that comes from the past: three-judge district courts followed by direct review to the Supreme Court. Motivated by federalism concerns about Ex parte Young, these courts were created in 1910 for suits seeking to enjoin state laws on federal constitutional grounds. Echoing the current concern, the goal was to prevent “leaving the fate of such litigation to a single judge.” Later congressional displeasure with the injunctions federal courts were issuing against New Deal legislation led to the extension in 1937 of the three judge-system to suits seeking to enjoin federal statutes. The experiment ended in 1976, except for challenges to redistricting which are still decided by three-judge courts.
Cases seeking nationwide injunctions are often of similar import and would also benefit from such three-judge courts. A nationwide injunction issued by a three-judge panel, which must include at least one circuit judge, would have greater legitimacy than one issued by a single judge. (As a Senate supporter of the original three-judge panel put it, “If three judges declare that a statute is unconstitutional, the people would rest easy under it.” He apparently never heard of a dissent, but his point remains). Indeed, the reason that American appellate courts traditionally sit as panels is the notion that significant legal questions should be resolved by a majority vote of multiple judges after consideration of different perspectives.
A three-judge panel would also reduce the benefits of forum shopping. Although a three-judge case is first assigned to a single district judge in the same manner as an ordinary lawsuit, the other two judges are selected by the chief judge of the circuit. Forum shopping would still occur as to that circuit of filing, but it would no longer allow a plaintiff to guarantee the sole decider of the case as now happens when a case is filed in a single-judge division within a district within the circuit. A new statute requiring a three-judge panel could include even stronger medicine against forum shopping at the trial level by requiring that lawsuits seeking nationwide injunctions be randomly assigned to one of the regional circuits for selection of the three-judge panel. Something like this lottery already happens when multiple lawsuits challenge certain agency orders; the multidistrict litigation panel randomly chooses among them. But the three-judge reform’s best antidote to forum-shopping would be the mandatory review by the Supreme Court. Bypassing the court of appeals would also expedite final resolution of the law’s legality.
Against these benefits, there would be little downside to requiring three-judge courts for cases seeking nationwide injunctions. One of the major reasons three-judge courts were abolished for challenges to state and federal laws no longer holds; the Supreme Court has greatly reduced its caseload over the last few decades. Adding cases in which nationwide injunctions issued would not be a substantial burden on the Court. Even during their high-water mark in the last full year of the Obama Administration, nationwide injunctions issued against fewer than ten federal policies. Requiring three-judge courts for suits seeking nationwide injunctions would also not necessarily prevent the emergence of differing views in lower courts. Lawyers could still bring suits in the ordinary manner when they seek the traditional injunction that applies only to the parties.
To use the framing of Professor Bray’s article, if we are living in a multiple chancellor world, we should allow only multiple chancellors to issue a nationwide injunction and then require our one national court to review that ruling.