Two legal scholars who often differ ideologically are urging the U.S. Supreme Court to use an Affordable Care Act contraceptive insurance case to put an end to nationwide injunctions.

University of Michigan Law School's Nicholas Bagley and Notre Dame Law School's Samuel Bray, joining forces in an amicus brief in the case Trump v. Pennsylvania, contend the injunctions are "inconsistent with the proper role of the federal courts" and have "no basis in traditional equity practice." They argue nationwide, or "universal," injunctions lead to "adverse practical consequences, both for the judicial system and for the federal government's ability to do its work."

The U.S. Court of Appeals for the Third Circuit in July ruled in favor of a challenge from Pennsylvania and New Jersey to the Trump administration's expansion of the so-called conscience exemption to the contraceptive coverage mandate in the Affordable Care Act. The appropriateness of the nationwide injunction, affirmed by the appellate court, is one of three questions in the case before the justices, who will hear arguments April 29.

The contraceptive mandate case is not the first time that the Trump administration's Justice Department has put the nationwide injunction issue before the justices. Across the country, federal trial and appellate courts are ever more grappling with nationwide injunctions. More than two dozen have been issued against the Trump administration.

The Justice Department raised universal injunctions in Trump v. Hawaii, the 2018 decision upholding the administration's travel ban on certain Muslim-dominated countries. In that decision, only Justice Clarence Thomas, in a concurring opinion, addressed the issue, writing, "I am skeptical that district courts have the authority to enter universal injunctions" and urging the court "to address their legality." But the court did not issue any guidance one way or another on the lawfulness of national injunctions.

More recently, those injunctions and, more specifically, the Trump administration's now frequent requests for emergency stays by the high court, became the focus of biting criticism from Justice Sonia Sotomayor. In Wolf v. Cook County, Illinois, Sotomayor wrote in a dissent that the administration had failed to show it would be irreparably harmed by an injunction barring the new "public charge" immigration rule from being enforced only in Illinois.

"Claiming one emergency after another, the government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited Court resources in each," Sotomayor wrote. "And with each successive application, of course, its cries of urgency ring increasingly hollow. Having first sought a stay in the New York cases based, in large part, on the purported harm created by a nationwide injunction, it now disclaims that rationale and insists that the harm is its temporary inability to enforce its goals in one state."

The Supreme Court currently has pending another emergency stay request by the Trump administration involving a nationwide preliminary injunction against the administration's "remain-in-Mexico" immigration policy. The justices are expected to rule soon in that case, Wolf v. Innovation Law.

Donald Burke, a partner in Robbins, Russell, Englert, Orseck, Untereiner & Sauber, is counsel of record on the Bagley-Bray amicus brief. The two professors have expressed their views before on the nationwide injunction issue in opinion pieces, blog posts and congressional testimony.

"Sam and I come from different points on the political spectrum. Both of us believe, however, that nationwide injunctions are inconsistent with the judiciary's role in a democracy and can seriously impair the federal government's ability to do its work," Bagley wrote in a blog post Monday at the Yale Journal on Regulation.

Defenders of nationwide injunctions—and there are many—will have a chance in the coming weeks to try to convince the Supreme Court not to curtail their use.

In a 2018 law review article, one defender, Amanda Frost of American University Washington College of Law, offered a "qualified" defense.

"When a district court is asked to pass on the validity of certain types of federal policies with nationwide effects—such as those affecting the air or water, or the nation's immigration system—it would be extremely difficult to enjoin application of the policy to some plaintiffs but not others," Frost wrote. And the need for these injunctions is particularly great, she added, "in an era when major policy choices are increasingly made through unilateral executive action affecting millions."

In the contraceptive mandate case, Pennsylvania Chief Deputy Attorney General Michael Fischer argues that the case is not the proper one to review nationwide injunctions in general and disputes a national trend in favor of them, citing six recent cases in which courts rejected imposing them.

"To the contrary, the current trend is toward more exacting scrutiny of requests for nationwide remedies and careful crafting of fact-based relief, as lower courts 'recognize a growing uncertainty about the propriety of universal injunctions,'" Fischer wrote.