U.S. Court of Appeals for the Fifth Circuit. Credit: Mike Scarcella / NLJ

A federal appeals judge is offering a solution to increasingly criticized nationwide injunctions—and it isn't to end or restrict them.

Judge Gregg Costa of the U.S. Court of Appeals for the Fifth Circuit, writing in the Harvard Law Review blog, suggested that any case seeking a nationwide injunction be steered to a three-judge panel with direct review by the U.S. Supreme Court, just as is done today with challenges to election districts.

Republican and Democratic administrations have chafed at nationwide injunctions that thwart implementation of their policies. Challengers strategically seek to file their suits where a potentially sympathetic district court judge sits.

During the Obama administration, a Texas district judge shut down the administration's program for undocumented parents of children who were U.S. citizens. And federal trial judges in California and Hawaii blocked the Trump administration's travel ban and the government's wind down of an immigration program for so-called Dreamers.

The justices may reveal what they think about nationwide injunctions by the end of the current term. The Trump administration's U.S. Department of Justice has asked the high court to answer whether the nationwide injunction against the president's latest travel ban is excessively broad.

In Trump v. Hawaii, which will be argued in April, U.S. Solicitor General Noel Francisco tells the justices that the injunction in this case “continues a deeply troubling trend in the lower courts of entering relief that extends well beyond the parties.”

Judge Gregg Costa. Credit: John Council/ ALM

Costa was responding to a Harvard Law Review article by Samuel Bray of the UCLA School of Law. Bray proposed a “single clear rule” that would limit the scope of injunctions to the federal defendant's conduct only with respect to the plaintiffs.

“No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction,” Bray argued.

Law professor Josh Blackman, writing last year at National Review, called nationwide injunctions the “latest fad” in litigation. He also suggested a three-judge panel would be appropriate.

Costa, on the bench since 2014, and Bray do agree that nationwide injunctions pose problems for the courts, particularly by encouraging forum shopping and hindering the development of the law. Venue shopping encouraged by these injunctions on issues of public importance, Costa said, “feeds the growing perception that the courts are politicized.”

Bray argued that a rule against nationwide injunctions would alleviate the forum shopping problem and restore the percolation of legal questions through different courts of appeals.

Costa, however, said the interests of efficiency and uniformity support the practice.

“Do we want the system Bray's article describes in which 1,600 injunctions had to issue against a single provision of a New Deal statute?” Costa wrote. “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.”

And for regulatory schemes dependent on national application for effective implementation, Costa added, “a patchwork of traditional, parties-only injunctions may be more disruptive than even an injunction that halts enforcement in full.”

Costa said there would be “little downside” to require three-judge courts for cases seeking nationwide injunctions. Adding appeals of those cases to the Supreme Court would not be a substantial burden on the high court, which has greatly reduced its caseload over the last few decades, he added.
Read more: