A Simple Defense of Nationwide Injunctions
The main issue addressed in yesterday’s birthright citizenship oral argument before the Supreme Court was whether federal courts should have the power to issue nationwide injunctions against illegal government policies, as opposed to injunctions limited to the parties to the case, or perhaps to a particular state or local government. As I see it, there is a simple, but powerful reason why courts must have the power to issue such injunctions, at least in some cases. In many situations, there is no other way to stop widespread illegality, especially that perpetrated by the federal government. Nationwide wrongs require a nationwide remedy.
Justice Ketanji Brown Jackson put it well in yesterday’s argument:
[T]he real concern, I think, is that your argument [meaning that of the federal government] seems to turn our justice system, in my view at least, into a “catch me if you can” kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights.
Justice Kagan says let’s assume for the purpose of this that you’re wrong about the merits, that the government is not allowed to do this under the Constitution. And yet it seems to me that your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to… file a lawsuit, hire a lawyer, et cetera. And I don’t understand how that is remotely consistent with the rule of law
This is especially true when, as in the birthright citizenship case, there are hundreds of thousands of victims of the government’s illegal policies, and many of them are poor or otherwise unable to readily file a lawsuit.
Moreover, even if all current victims file lawsuits and win, the unconstitutional policy will remain in place with respect to future victims (in this case, future children born to undocumented immigrants and those in the US on temporary visas). Thus, the illegality – and the need for endless lawsuits to combat it – will continue on into the indefinite future.
Imagine if school desegregation litigation rule
Article from Reason.com
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